Memorandum of Points and Authorities

Cal. Super. - 5th Dist.April 15, 2021

E-FILED 10/21/2021 10:18 AM Superior Court of California County of Fresno By: I. Herrera, Deputy PASCUZZI, PASCUZZI & STOKER 2377 West Shaw Avenue, Suite 10] Fresno, California 93711 \OWQONUI&WNH NNNNNNNNNh-It-Ay-tu-np-np-AHp-n-n-n OOVQM$WNHO©OOQQMAWNHO WILLIAM E. McCOMAS 261640 PASCUZZI, PASCUZZI & STOKER A Professional Corporation 2377 West Shaw Avenue, Suite 101 Fresno, CA 93711 Telephone: (559) 227-1 100 Facsimile: (559) 227-1290 E-mail: wmccomas ascuzzi.net Attorney for Defendants MARTHA EUSEBIO, NOE JIMENEZ, and JOSE JIMENEZ IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO ***** ULISES JAVIER MENDOZA ANDAS, an Case No.3 21CECG01068 individual, MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF V. NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT MARIA EUSEBIO, an individual, NOE JIMENEZ, an individual, JOSE [CCP § 473 (b)! JIMENEZ, an individual; and DOES 1-50, inclusive, Date: December 15, 2021 Defendants. Time: 3330 Dept.: 501 DEFENDANTS MARTHA EUSEBIO, NOE JIMENEZ, and JOSE JIMENEZ, (“Defendants”) respectfully submits their motion t0 set-aside default. MEMORANDUM OF POINTS AND AUTHORITIES I FACTUAL HISTORY In the months of May and August, Defendants were served with Plaintiff, ULISES JAVIER MENDOZA ANDAS’ (“Plaintiff”) summons and first amended complaint (the “FAC”) by substitute-service. (William McComas Declaration (“McComas Dec.”), at 1W 3,4.) The filing 0f these services were often deemed defective due t0 insufficient l Memorandum Of Points And Authorities In Suppon Of Notice Of Motion And Motion To Set Aside Default PASCUZZI, PASCUZZI & STOKER 2377 West Shaw Avenue, Suite 101 Fresno, California 93711 \OOONOUI-bUJNH NNNNNNNNNt-Ir-At-tv-dt-Irdv-tv-Ir-IH WQONU‘IhUJN-‘OOOONQUIAUJNHO documentation (Id, at 1] 5.) In September 2021, Defendants contacted the Law Offices 0f Pascuzzi, Pascuzzi, & Stoker (“PPS”) in order to gain representation to defend against the FAC. (McComas Dec., at 1} 6.) On September 13, 2021, Defendant’s counsel (“Mn McComas”) drafted a letter t0 Plaintiff’s attorney of record (“Mn Folland”) informing him Defendants had retained PPS and Mr. McComas intended to file a demurrer to the FAC; the letter of September 13, 2021 was emailed to Mr. Folland. (Id., at 11 7.) After receiving n0 response t0 the letter of September 13, 2021, 0n September 21, 2021, Mr. McComas called Mr. Folland to discuss the potential filing of the demurrer as required by Code of Civil Procedure, section 430.41. (Id., at 1} 8.) On September 21 , 2021, Mr. McComas again emailed Mr. Folland concerning a potential demurrer as required by Code of Civil Procedure, section 430.41. (Id., at 1] 9.) To this date, Mr. Folland has not responded t0 Mr. McComas. (1d,, at 1] 10.) On September 26, 2021 , believing the date t0 file Defendants” responsive pleading was September 28, 2021 - PPS requested a demurrer date from the Court’s clerk by leaving a message with the clerk’s office. (McComas Dec., at 1] 11.) On September 27, 2021, PPS again requested a demurrer date from the Court’s clerk by leaving a message with the clerk’s office. (Id., at fl 12.) On September 28, 2021, the Coun clerk retuned the calls of PPS and informed it a demurrer date could not be provided as Defendants’ default was taken 0n September 27, 2021. (Id., at 1] 13.) Immediately, on September 28, 2021, Mr. McComas drafted a second letter to Mr. Folland outlining (1) PPS’s prior attempts to reach Mr. Folland as required by Code of Civil Procedure, section 430.41, prior to filing a demurrer and (2) Mr. Folland’s failure to inform Mr. McComas of his intent to file Defendants’ default; the letter 0f September 28, 2021 was emailed and mailed by U.S. Mail to Mr. Folland. (McComas Dec., at W 14, 16.) The letter of September 28, 2021, also requested Mr. Folland set aside Defendants’ default in lieu of Mr. McComas filing this motion. (Id., at 11 15.) Once again, and t0 this date, Mr. Folland has not responded t0 Mr. McComas. (Id, at 11 10.) ///// 2 Memorandum Of Points And Authorities In Support OfNotice Of Motion And Motion To Set Aside Default PASCUZZI, PASCUZZI & STOKER 2377 West Shaw Avenue, Suite 101 Fresno, California 9371 l \OOONQUI-RUJNH NNNNNNNNNHHHHHHflflr-AH OONQM-PWNHOOOOQQU‘IAWN-‘O II LEGAL ARGUMENT A. The Court Must Relieve a Party from a Judgment by Default Resulting from Mistake, Inadvertence, Surprise, 0r Excusable Neglect of the Party’s Attorney Pursuant to CCP §473 (b) the court must grant relief from a default entered by the clerk or a resulting judgment 0r dismissal entered against a paITy if, within six (6) months after entry ofjudgment, the party’s attorney files an application for relief that includes a sworn affidavit that the attorney’s own mistake, inadvertence, surprise, or neglect was the cause of the default 0r dismissal and the court finds that it was the cause. (See Greyhound Lines, Inc. (2016) 6 CA 5th 477.) In this case, Defendants’ default was entered because 0f the mistake, inadvertence, surprise, or excusable neglect by Mr. McComas by not timely filing Defendants’ responsive pleading on 0r by September 27, 2021. Regardless 0f the multiple rejections of Plaintiff’s prior attempts at filing acceptable proof of services, as well as the failed attempts t0 obtain defaults prior to September 27, 2021, Mr. McComas should not have mistakenly identified an incorrect date (that is the date 0f September 28, 2021 instead 0f the date 0f September 27, 2021) t0 file Defendants’ responsive pleading. B. California Attorney Guidelines of Civility and Professionalism. Nonetheless, Mr. McComas believed he would receive notice from Mr. Folland before Mr. Folland filed Defendants’ default. In California, and “‘[i]f plaintiff’s counsel knows the identity 0f the lawyer representing defendant, he or she owes an ethical obligation to warn before requesting entry of defendant’s default. Failure to do so is a professional discourtesy that will not be condoned by the courts . . . .’” Id. (quoting Weil & Brown, Civil Procedure Before Trial (Rutter 2007) 5:68-5:70. Section 15 0f the State Bar’s enacted California Attorney Guidelines 0f Civility and Professionalism provides: “‘[a]n attorney should not take the default of an opposing party known t0 be represented by counsel without giving the party advance warning.” (Id., at 365 n.10.) Moreover, in Robinson v. Varela (1977) 67 CA 3d 61 1, the Courts granted a motion to set aside a default judgment based 0n the grounds of excusable negligence when there was reliance on opposing counsel to warn before taking default. Additionally, if plaintiff’s 3 Memorandum Of Points And Authorities In Support Of Notice Of Motion And Motion To Set Aside Default Fresno, California 9371 I PASCUZZ], PASCUZZI & STOKER 2377 West Shaw Avenue, Suite 101 \DOOVONMAWNw NNNNNNNNNt-IHHr-tp-AHHHh-AH OONQMAUJNb-‘OWOONQM-hWNF-‘O counsel knows the identity of the lawyer representing defendant, he owes an ethical obligation to warn before requesting entry of defendant’s default. (See Fausyi v. Permatex, Inc. (2008) 84 Cal. Rptr. 3d 35 1 .)). “The quiet speed of plaintiff’s attorney in seeking a default judgment without the knowledge 0f defendant’s’ counsel is not to be commended. (Smith v. Los Angeles Bookbinders Union (1 955) 133 Cal.App.2d 486, 500, disapproved on other grounds in MacLeod v. Tribune Publishing C0., Inc. (1959) 52 Cal.2d 536, 551.) C. Code 0f Civil Procedure §473 Must be Construed t0 Prevent Injustice and Ensure that Each Case is Heard on its Merits. California courts have repeatedly stressed the need for liberal construction 0f §473 to ensure the fullest and fairest presentation of each case on its merits. All doubts should be resolved in favor of the moving party, even when the “showing under section 473 is not strong.” (Van Dyke v. MacMillan (1985) 162 CA 2d 594, 598) Appellate courts are consistently more disposed t0 affirm orders that result in trial on the merits than those that uphold default. (Weitz v. Yankoskly (1966) 63 C2d 849, 854.) Here, Mr. McComas has declared under penalty and perjury that the failure t0 file a Defendants’ first responsive pleading, before the Defendants’ default was taken, was based 0n his mistake of fact. III CONCLUSION Based on the above, Defendants respectfully request the Court set aside the Defendants’ default t0 allow Defadant to file its demurrer to the FAC. DATED: October , 2021 A ZI, PASCUZZI & STOKER William McComas, Attorneys for Martha Eusebio, Noe Jimenez, and Jose Jimenez 4 Memorandum Of Points And Authorities ln Support Of Notice Of Motion And Motion To Set Aside Default