Motion to Vacate Dismissal: GRANTED

On November 4, 2021, Plaintiff Heungseok Shin sued Defendants Byung Yel Chon aka Pick Hun and Does 1-20 pursuant to claims for (1) Breach of Contract, (2) Fraud, (3) Constructive Trust, (4) Quiet Title, and (5) Specific Performance on the grounds that, on December 30-31, 2019 and pursuant to a Grant Deed, Plaintiff Shin conveyed title to 2106 Greenwood Court, Fullerton, California 92833 to Defendant Chon in exchange for an $800,000 business loan under the agreement that Chon would reconvey the Subject Property to Shin after Shin returned to Chon the $800,000 loan, only for Chon to fail to reconvey the Property to Shin after this debt was satisfied to Chon. (Chon’s surname on the Grant Deed, attached as Exhibit 2 to the Complaint, appears as “Cho.”)

The Summons and Complaint were served on Defendant Chon on November 13, 2021 at his 3785 Wilshire Blvd., # 1709, Los Angeles, California 90010 address.

On November 5, 2021, shortly before service on Chon, the Court issued an Order to Show Cause Hearing notice and a Notice of Case Management Conference, both calendared for February 22, 2022, which the Clerk mailed to Plaintiff Shin to his 2106 Greenwood Court, Fullerton, California 92833 address.

On February 22, 2022, the Court held the Order to Show Cause and Case Management Conference hearings, which both Plaintiff Shin and Defendant Chon failed to attend. Based on this nonappearance, the Court dismissed the Shin Complaint without prejudice.

Plaintiff Shin now makes an unopposed Motion to Vacate Dismissal Entered on February 22, 2022 pursuant to California Code of Civil Procedure section 473, subdivision (b), and on the grounds that he “did not attend the [February] hearing because … [he] never received the hearing notice in … [his] mail.” The Motion is accompanied by a Proof of Service form showing that a copy of this Motion was served on Defendant Chon on August 17, 2022 via mail to his Wilshire Blvd. address.

The discretionary provision of section 473, subdivision (b), states in pertinent part that “[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect” and that “the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)

Shin made this Motion to Vacate on August 18, 2022—i.e., a few days under the six-month deadline to file this type of motion against the Court’s February 22, 2022 dismissal of this action—making the Motion timely. (Code Civ. Proc., § 473, subd. (b).)

The Court notes that the November 5, 2021 Order to Show Cause Hearing notice and Notice of Case Management Conference show that these Notices were mailed by the Clerk to Plaintiff Shin to his 2106 Greenwood Court, Fullerton, California 92833 address. This is the same address where the Complaint claims that Plaintiff Shin resided at the time that he filed his Complaint on November 4, 2021. (See Complaint, ¶ 1.) Nevertheless, (1) in the interest of equity, (2) based on Shin’s statement that he never received the Notices related to the February 22, 2022 hearings (Mot., Shin Decl., ¶ 1), and (3) based on Defendant Chon’s failure to oppose this Motion (see Docket generally), the Court GRANTS Plaintiff Shin’s Motion to Vacate Dismissal on the grounds that Shin either made a mistake in not attending the February 22, 2022 hearings or suffered from the inadvertent non-receipt of the November 5, 2021 Notices, resulting in his failure to attend on February 22, 2022.

This conclusion is supported by Shin’s May 19, 2022 attempt to obtain Entry of Default against Defendant, which was rejected by the Clerk based on the February 22, 2022 dismissal of this action, thus showing that Shin was, to whatever extent, unaware that his lawsuit had been dismissed on February 22, 2022.

Conclusion

Heungseok Shin’s Motion to Vacate Dismissal Entered on February 22, 2022 is GRANTED because Plaintiff Shin either made a mistake in not attending the February 22, 2022 hearings or suffered from the inadvertent non-receipt of the November 5, 2021 Notices, resulting in his failure to attend on February 22, 2022.