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FITZGERALD YAP KREDITOR LLP
Eoin L. Kreditor (SBN 151131)
ekreditor@fyklaw.com
David M. Lawrence (SBN 210408)
dlawrence@fyklaw.com
16148 Sand Canyon Avenue
Irvine, California 92618
Telephone:(949) 788-8900
Facsimile: (949) 788-8980
Attorneys for Plaintiffs
ELECTROMICALLY FILED
Superior Court of Califarnia,
County of Orange
07/26/2018 at 01:48:00 PM
Clerk of the Superior Court
By & Clerk, Deputy Clerk
SHARI LUTHER, as trustee of The Douglas Richard Luther and Shari Nadeane Luther Joint Living
Trust Dated March 31, 2011; DOUGLAS LUTHER, as trustee of The Douglas Richard Luther and
Shari Nadeane Luther Joint Living Trust Dated March 31, 2011
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF ORANGE — CENTRAL JUSTICE CENTER
SHARI LUTHER, as trustee of The Douglas
Richard Luther and Shari Nadeane Luther
Joint Living Trust Dated March 31, 2011;
DOUGLAS LUTHER, as trustee of The
Douglas Richard Luther and Shari Nadeane
Luther Joint Living Trust Dated March 31,
2011,
Plaintiffs,
V.
DELABAR CONSTRUCTION COMPANY,
a California corporation; GEOFF DELABAR,
an individual; DOES 1 through 100, inclusive,
Defendants.
Case No.: 30-2018-00970240
[Unlimited Jurisdiction]
[Assigned for all purposes to the Judge Sheila
Fell, Dept. C25]
OPPOSITION TO MOTION TO SET ASIDE
DEFAULT; REQUEST FOR ATTORNEY
FEES AND COSTS; DECLARATION OF
DAVID M. LAWRENCE
Complaint filed: January 30, 2018
Trial Date: None
-1-
OPPOSITION TO MOTION TO SET ASIDE DEFAULT
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Plaintiffs Shari Luther, as trustee of The Douglas Richard Luther and Shari Nadeane Luther Joint
Living Trust Dated March 31, 2011 and Douglas Luther, as trustee of The Douglas Richard Luther
and Shari Nadeane Luther Joint Living Trust Dated March 31, 2011 (collectively “Plaintiffs”) submit
this limited opposition to defendants Delabar Construction Company and Geoff Delabar (collectively
“Defendants”) Motion to Set Aside Default Pursuant to CCP 437(b), a motion which was never served
upon Plaintiffs. In order to grant relief based on an “attorney affidavit of fault,” the court must “direct
the attorney to pay reasonable compensatory legal fees and costs” to Plaintiffs. (Code of Civ. Proc. §
437(b)). As a result of Defendants’ failure to timely respond to the complaint, a default was entered
against Defendants on March 16, 2018. Since that time, Plaintiffs have incurred significant attorney
fees and legal costs in order to prepare declarations in support of the request for a default judgment
and attend case management conferences and orders to show cause regarding the status of the default.
Specifically, as set forth in the attached Declaration of David M. Lawrence, Plaintiffs have incurred
the following attorney fees and costs as a result of Defendants’ failure to timely appear in this action:
Preparing and Filing Request for Entry of Default $ 121.97
Appearing at CMC’s and OSC $1,104.25
Preparing Declarations in Support of Request for Default Judgment $2,250.90
Total $3,477.12
Accordingly, if the Court grants Defendants” motion to set aside the default, said order should be
conditioned upon Defendants’ paying Plaintiffs $3,477.12 to compensate Plaintiffs for the fees and
111
De
OPPOSITION TO MOTION TO SET ASIDE DEFAULT
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costs they would not have had to occur if Defendants had timely made an appearance in this action.
DATED: July 26,2018 FI > =
David M,_Eawren
Attoprteys for Plaintiffs
SHAR HER and DOUGLAS LUTHER, as
trustees of The Douglas Richard Luther and Shari
Nadeane Luther Joint Living Trust Dated March 31,
2011
3.
OPPOSITION TO MOTION TO SET ASIDE DEFAULT
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DECLARATION OF DAVID M. LAWRENCE
I, DAVID M. LAWRENCE, declare:
1. Iam an attorney licensed to practice law in the courts of the State of California. I am a
partner at FitzGerald Yap Kreditor LLP, counsel of record for plaintiffs Shari Luther, as trustee of
The Douglas Richard Luther and Shari Nadeane Luther Joint Living Trust Dated March 31, 2011 and
Douglas Luther, as trustee of The Douglas Richard Luther and Shari Nadeane Luther Joint Living
Trust Dated March 31, 2011 (collectively “Plaintiffs”) in the above-captioned action. I am one of the
attorneys primarily responsible for this matter. I have personal knowledge of the facts within this
Declaration based upon my personal knowledge, and if called upon to testify to them I could and
would competently do so.
2. My office was never served with defendants Delabar Construction Company and Geoff
Delabar’s (collectively “Defendants’) Motion to Set Aside Default Pursuant to CCP 437(b). We
learned of the motion when reviewing the Court docket and ordered a copy of the motion on July 24,
2018. A review of the motion’s proof of service shows that it was purportedly emailed to an incorrect
email address for me. My email address is dlawrence@fyklaw.com. The motion, however, was
apparently emailed to dlawrene@fyklaw.com, which is not and has never been one of my email
addresses.
3. As aresult of defendants Delabar Construction Company and Geoff Delabar’s (collectively
“Defendants”) failure to timely respond to the operative complaint in this matter, Plaintiffs have
incurred fees and costs in order to prepare a request for entry of default, attend case management
conferences that will have to be repeated if the default is set aside, attend an order to show cause
regarding the default, and prepare two declarations that were going to be submitted in support of
Plaintiffs’ request for a default judgment. Specifically, as set forth in the attached Declaration of
David M. Lawrence, Plaintiffs have incurred the following attorney fees and costs as a result of
/
J
OPPOSITION TO MOTION TO SET ASIDE DEFAULT
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Defendants failure to timely appear in this action:
Preparing and Filing Request for Entry of Default $ 121.97
Appearing at CMC’s and OSC $1,104.25
Preparing Declarations in Support of Request for Default Judgment $2.250.90
Total $3,477.12
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed this 26th day of Jul t ine, California.
Hi
OPPOSITION TO MOTION TO SET ASIDE DEFAULT
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a.
PROOF OF SERVICE
Shari Luther et al. v. Delabar Construction Company, et al.
Superior Court of California, County of Orange Case No. 30-2018-00970240
I am employed in the County of Orange, State of California. I am over the age of 18 and
not a party to the within action; my business address is 16148 Sand Canyon Avenue, Irvine,
California 92618.
On July 26, 2018, I served the foregoing document(s) described as follows:
OPPOSITION TO MOTION TO SET ASIDE DEFAULT; REQUEST FOR ATTORNEY
FEES AND COSTS; DECLARATION OF DAVID M. LAWRENCE
on the interested parties in this action by placing [X] a true copy [] the original thereof addressed
as follows:
SEE ATTACHED SERVICE LIST
[] (MAIL) (C.C.P. § 1013(a)) Pursuant to CCP § 1013(a) and under firm practice said
envelope would be deposited with the U.S. Postal Service on the same day with postage thereof
fully prepaid at Irvine, California in the ordinary course of business. I am readily familiar with
FitzGerald Yap Kreditor LLP’s ordinary business practice of collection and processing
correspondence for mailing. I followed this business practice and I placed the envelope for
collection and mailing on the date identified above. Iam aware that on motion of the party served,
service is presumed invalid if postage cancellation date or postage date is more than one day after
date of deposit for mailing in affidavit.
X (ELECTRONIC SERVICE) (CCP § 1010.6(a)(4)) I caused such document(s) to be
electronically served, via One Legal Attorney Service, served on all interested parties in this action
shown by Electronic-Filing through One Legal Attorney Service which is then printed and
maintained with the original documents in our office. Electronic service is complete at the time of
transmission. My electronic notification address is 16148 Sand Canyon Avenue, Irvine, CA
92618. E-mail: jvaldez@fyklaw.com.
Xx (STATE) I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on July 26, 2018, at Irvine, California.
Jacl aldez
1 PROOF OF SERVICE
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SERVICE LIST
Keith A. Attlesey, Esq.
Marc W. Thomas, Esq.
ATTLESEY STORM LLP
2552 Walnut Avenue, Suite 100
Tustin, CA 92780
Email: kattlesey@attleseystorm.com
Email: mthomas@attleseystorm.com
Tel: (714) 508-4949
Fax: (714) 508-0015
Attorneys for Defendants Delabar Construction
Company and Geoff Delabar
2 PROOF OF SERVICE
