Rafik Y. Kamell vs. Brian Van Cleave

Motion to Vacate

Cal. Super. - 4th Dist.December 17, 2014

10 11 a 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brian VanCleave 9 lowa, Irvine CA 92606 Date Action Filed: December 17, 2014 Trial Date: None Set 949-243-5854 In Pro Per SUPERIOR COURT (UNLIMITED) OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER Rafik Y. Kamell ) CASE NO.: 30-2014-00762263-CU-MC-CJC ) Plaintiff ) DEFENDANT BRIAN VANCLEAVE'S ) MOTION TO REMOVE DEFAULT/OPPOSITION Vv ) TO ENTRY OF DEFAULT ) Brian VanCleave; Jennifer VanCleave ) Hearing Date: September 12, 2016 ) Time: 10:00 a.m. Defendants } Dept.: C-10 ) Judge: Hon. Linda S. Marks ) ) ) TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 12, 2016 at 10:00 a.m. or as soon thereafter as the matter may be heard in Department C-10 of the above-captioned Court located at 700 Civic Center Dr. West, Santa Ana, CA 92701, Defendant BRIAN VANCLEAVE (“BVC”) will and hereby do move for an order to remove entry of default filed by Rafik Y. Kamell (“Plaintiff”). SPECIFICATION OF GROUNDS FOR REMOVAL OF DEFAULT Brian VanCleave (BVC) first became aware of the entry of default in April 2016 when served in a correctional facility and Jennifer VanCleave informed him via telephone that she had appeared to court on May 27, 2016 for the Mandatory Settlement Conference and was told by the clerk that there was no hearing due to default. 1 10 11 12 13 14 15 16 1. 18 19 20 21 22 23 24 25 26 27 28 BVC had appeared to all hearing dates minus the MSC and trial wasset for June 27. 2016. The defendant's demur to the initial complaint was heard on August 10, 2015. The plaintiff did not file a proper first amended complaint by the time of the case || management conference October 5, 2015. At some point, a first amended complaint dated August 15, 2015 was rejected. The same first amended complaint was then dated October 8, 2015 and was believed to be again rejected. The two defendants were not served separately and did not receive a first amended complaint after the October 21, 2015 filing date. On January 5, 2016 the plaintiff filed a request for entry of default. According to 2016 California rules of court Rule 3.110 (g) a request for entry of default must be filed within 10 days after the time for service has elapsed (amended effective January 1, 2007). BVC was served in a correctional facility where he has been since December 31, 2015 and had tried to make a written request to the court for opposition to the entry of default. His mailed request was returned by the clerk stating that the correspondence was considered ex parte. Defendant submitted requests for time in the law library but it has not been granted. He could not properly reply while incarcerated unless given that opportunity as he is “in pro per” and cannot afford private counsel. The defendant, Brian VanCleave, prays that the default entered on January 5, 2016 be removed. Dated: June 12, 2016 By: ez Jen ferVi Cleave by v.o. of Brian VanCleave; Defendant; In Pro Per 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jennifer VanCleave 9 lowa, Irvine CA 92606 Defendants Date Action Filed: December 17, 2014 Trial Date: June 27, 2016 949-235-5250 In Pro Per SUPERIOR COURT (UNLIMITED) OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER Rafik Y. Kamell ) CASE NO.: 30-2014-00762263-CU-MC-CJC ) | Plaintiff ) DEFENDANT JENNIFER VANCLEAVE’S ) MOTION TO REMOVE DEFAULT/OPPOSITION Vv } TO ENTRY OF DEFAULT ) ) Hearing Date: September 12, 2016 ) Time: 10:00 a.m. ) Dept.: C-10 Brian VanCleave; Jennifer VanCleave ) Judge: Hon. Linda S. Marks } ) ) ) ) TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on September 12, 2016 at 10:00 a.m. or as soon thereafter as the matter may be heard in Department C-10 of the above-captioned Court located at 700 Civic Center Dr. West, Santa Ana, CA 92701, Defendant JENNIFER VANCLEAVE (“JVC”) will and hereby do request removal of entry of default filed by Rafik Y. Kamell (“Plaintiff”). SPECIFICATION OF GROUNDS FOR REMOVAL OF DEFAULT Jennifer VanCleave (JVC) first became aware of the default on May 27, 2016 when she entered the court room for a Mandatory Settlement Conference and was told by the clerk that there was no hearing due to default. JVC had appeared to all hearing dates and trial was set for June27, 2016. Defendant had been awaiting the MSC and trial. The defendant's demurto the initial complaint was heard on August 10, 2015. The plaintiff did notfile a proper first amended complaint by the time of the case management conferenceOctober 5, 2015. At some point, a first amended complaint dated August 15, 2015 was rejected. The same first amended complaint was then dated October 8, 2015 and was believed to be again rejected. The two defendants were not served separately and did not receive a first amended complaint after the October 21, 2015 filing date. oo On May 20, 2016 the plaintiff filed a request for entry of default. According to 2016 California rules of court Rule 3.110 (g) a request for entry of default must be filed within 10 days after the time for service has elapsed (amended effective January 1, 2007). Defendant, Jennifer VanCleave, prays for removal of entry of default and/or 13 14 15 16 17 18 19 20 21 22 23 24 25 26 or 28 default. Dated: June 12, 2016 By: a ~~ JoneVan leave; Defendant; In Pro Per