Plaintiffs Response To Order To Show Cause Re Proof of ServiceResponseCal. Super. - 1st Dist.May 31, 201610 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JONATHAN ASSELIN-NORMAND Mailing Address: 610 C Street Suite D Marysville, CA 95901 Telephone: 530-292-6611 Plaintiff, In Pro Per SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JONATHAN ASSELIN-NORMAND, Case No.: CGC 16552301 Plaintiff, vs. PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF LA LUNA INN; AND DOES1ITHROUGH SERVICE 100, INCLUSIVE, Defendants. Date: March 14, 2017 Time: 10:30 a.m. Dept.: 610 Complaint Filed: May 31, 2016 Trial Date: None Set Pursuant to CRC 3.110(i), Plaintiff Jonathan Asselin-Normand responds to the court’s order to appear in Department 610 on Mar-14-2017 at 10:30 am to show cause why this action should not be dismissed or why sanctions should not be imposed for failure to file proof of service on defendant(s) and obtain answer(s), or enter default(s). RELEVANT PROCEDURAL HISTORY On May 31, 2016, Plaintiff filed his complaint alleging age discrimination in the renting of rooms at Defendants’ lodging establishment. On June 14, 2016, Plaintiff duly served his complaint under Code of Civil Procedurg (“CCP”) § 415.95 for a business entity of unknown form. 1 n d PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On July 7, 2016,the clerk rejected Plaintiff’s (physically filed) original proof of service on the ground that a “Declaration of Due dilligence was not attached/submitted.” On July 20, 2016, the clerk rejected Plaintiff’s (physically filed) copy of proof of service on the ground that “The Original document with the original signature is required.” On July 26, 2016, the clerk rejected Plaintiff’s (electronically filed) proof of service on the ground of “No indication of service on corporate officer or authorized agent (CCP 412.30, CCP 416.10). Agent must be specified by name andtitle.” Regarding a Request for Entry of Default filed therewith, the clerk stated: “Applicable boxes not marked/completed under item #(s) #5 a-g ( required for entry of default).” On or around October 14, 2016, the court vacated a case management conference (“CMC” and set the order to show cause (“OSC”) for December 13, 2016. On December 13, 2016, the court continued the OSC hearing to M arch 14, 2017. PLAINTIFF HAD DULY FILEDTHE PROOF OF SERVICE AND REQUEST FOR ENTRY OF DEFAULT CCP § 415.95, under which Plaintiff>s service was made, reads: (a) A summons may be served on a business organization, form unknown, by leaving a copy of the summons and complaint during usual office hours with the person who is apparently in charge of the office of that business organization, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid, to the person to be served at the place where a copy of the summons and complaint was left. Service of a summons in this manner is deemed complete on the 10th day after the mailing. (b) Service of a summons pursuantto this section is not valid for a corporation with a registered agent for service of process listed with the Secretary of State. As appears on Plaintiff’s proof of service (Attachment A), service was madeon LA LUNA INN’s manager at LA LUNA INN’s address that was alleged in the complaint. The server thereafter mailed (by first-class, postage prepaid) copies of the documents to the person to be served at the place where the copies were left. Such service was in compliance with CCP § 415.95 A declaration of due diligence as required by the clerk for acceptance of the filing was not necessary under said section of the CCP. Regarding the request for entry of default, item #5 a-c, as required by the clerk for acceptance of the filing (in addition to a proof of service deemed acceptable), was not necessary 2 PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 because, as noted on the form, the said item is required only for entry of default under CCP § 585(a), which applies when the action is arising upon contract or judgment for the recovery of money or damages and the clerk is to immediately thereafter enter judgment for the principal amount demanded in the complaint. Here, Plaintiff was requesting entry of default under CCP § 585(b), which does not require the completion of item #5 a-c. Therefore, Plaintiff had duly filed the proof of service with proper service under CCP § 415.95 (Attachment A) and the request for entry of default under CCP § 585(b) (Attachment B). Plaintiff intended to address these issues at the CM C hearing and in the related statement but said hearing was vacated and an OSC was set. THE PROOF OF SERVICE AND REQUEST FOR ENTRY OF DEFAULT SHOULD BE ACCEPTED FOR FILING AS OF THEIR FILING DATE In a case where the trial court was prompted to reconsider a prior ruling by a motion filed in violation of section 1008, the Court of Appeal stated a trial court has “inherent authority tg correctits errors.” In reMarriageofBarthold (2008) 158 Cal.A pp.4th 1301, 1303. Here, the court should use its inherent authority to correct errors by accepting the filings of 1) the proof of service as of July 7, 2016 and 2) the request for entry of default as of J uly 26, 2016. PLAINTIFF HADGOOD CAUSE AND SUBSTANTIALJUSTIFICATION FOR FAILURE TO APPEAR AT THE FIRST OSC HEARING Plaintiff, a resident of Canada, was unable to appear at the first OSC hearing due to his medical condition and his inability to travel on the set date. Plaintiff attempted to secure legal counsel to appear at the hearing, but was unable to do so. Plaintiff respectfully asks the court tg vacate the $400 sanctions without the need for a written ex parte application under Local Rule 3.0 C. 3) because Plaintiff had good cause and substantial justification for failure to appear. In the alternative, Plaintiff respectfully asks the court to lower the amount in sanctions, which is of $400 for a first failure to appear by a non-resident unrepresented party while Defendants have nof appeared in the case. Plaintiff has been unable to pay the sanctions but intends to do so as soon ag possible should the sanctions be maintained. I 3 PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION Plaintiff had duly filed the proof of service (Attachment A) and request for entry of default (Attachment B), but they were rejected due to perceived defects although they were in compliance with CCP § 415.95 and CCP § 585(b). Plaintiff intended to address these issues at the CM C hearing and in the related statement, but said hearing was vacated, and Plaintiff had good cause and substantial justification for failure to appear at the first OSC hearing. Therefore, Plaintiff respectfully asks the court to: 1. use its inherent authority to correct errors by accepting the filings of 1) the proof of service (Attachment A) as of July 7, 2016 and 2) the request for entry of default (Attachment B as of July 26, 2016; and 2. vacate the $400 sanctions without the need for a written ex parte application under Local Rule 3.0 C. 3) because Plaintiff had good cause and substantial justification for failure tg appear at the OSC hearing, or in the alternative, lower the amount in sanctions. Dated: March 8, 2017 JONATHAN ASSELIN-NORMAND Plaintiff, in pro per 4 PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT A PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE In Pro Per: For Court Use Only JONATHAN ASSELIN-NORMAND 402 W BROADWAY, STE. 400 San Diego, CA 92101 Telephone No: 415-735-5476 Ref. No. or File No.: In Pro Per: Plaintiff Insert name ofCourt, and Judicial District and Branch Court: SAN FRANCISCO COUNTY SUPERIOR COURT Plaintiff: JONATHAN ASSELIN-NORMAND Defendant: LA TUNA INN; AND DOES 1 THROUGH 100,INCLUSIVE Dept/Div: Case Number: CGC-16-552301 Time:PROOF OF SERVICE Hearing Date: SUMMONS AND COMPLAIN 1. At the time ofservice I was at least 18years ofage and not a party to this action. 2. Iserved copies of the Summons And Complaint; Civil Case Cover Sheet; Adr Program Information Package; Judicial Mediation; Blank Stipulation To Adr; Blank Case Management Statement; Expedited Jury Trial Information Sheet 3. a Party served: LA LUNA INN 4. Address where the party was served: 2599 LOMBARD STREET San Francisco, CA 94123 5. I served theparty: b. by substituted service. On: Tue., Jun. 14, 2016 at: 9:15AM by leaving the copies with or in the presence of: BOBBY LAUB, MANAGER Asian, Male, 55 years old, Salt & Pepperhair, Glasses, 5'9", 170 pounds (1) (Business) Person in charge over 18. I informed him or her ofthe general nature ofthe papers. (4) I thereafter mailed (by first-class, postage prepaid) copies ofthe documents to the person to be served at the place where the copies were left (Code Civ. Proc., 415.20). I mailed the document on: Tue., Jun. 14, 2016 from: San Bruno, CA 6. The "Notice to the Person Served” (on the Summons) was completed asfollows: on behalfof: LA LUNA INN Other: CCP 415.95 FORM UNKNOWN 7. Person Who Served Papers: Recoverable Cost Per CCP 1033.5(a)(4)(B) a. Andy Esquer d. The Feefor Service was: $45.00 e. Iam: (3) registered California process server tyLane (i) Independent Contractor San Bruno,CA 94066 (ii) Registration No.: 1009 Phone 650.794.1923 (iti) County: San Francisco FAY 6500804182 ji ys (iv) Expiration Date: Mon, Mar. 06, 2017 8. Ideclare under penalty ofperjury under the laws ofthe State ofCalifornia that theforegoing i d correct. Date: Wed, Jun. 15, 2016 rutdSYSREP Tamar1s2007 sumRbESVNT Jonnor. 120686 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ATTACHMENT B PLAINTIFF'S RESPONSE TO ORDER TO SHOW CAUSE RE: PROOF OF SERVICE CIV-100 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY | Jonathan Asselin-Normand 402 W Broadway Ste 400 San Diego CA 92101 TELEPHONE No: 415-735-5476 FAX NO. (Optional): E-MAIL ADDRESS (optiona): Jonathan@EdificalLaw.com ATTORNEY FOR (Name): Plaintiff In Pro Per SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco street appress: 400 McAllister St. maine aooress: 400 McAllister St. amv ann zip cope: San Francisco, CA 94102 srancr nave: Civic Center Courthouse PLAINTIFF/PETITIONER: Jonathan Asselin-Normand DEFENDANT/RESPONDENT: LA LUNA INN,et al. REQUEST FOR Entry of Default [1 clerk's Judgment (Application) CGC 16 552301 [1 court Judgment 1. TO THE CLERK: On the complaint or cross-complaint filed a. on (date): May 31, 2016 b. by (name): Jonathan Asselin-Normand C. Enter default of defendant (names): LA LUNA INN CASE NUMBER: d. Cl | request a court judgment under Code of Civil Procedure sections 585(b), 585(c), 989, etc., against defendant (names): (Testimony required. Apply to the clerk for a hearing date, unless the court will enter a judgment on an affidavit under Code Civ. Proc., § 585(d).) e. [] Enter clerk’s judgment (1)y [1] for restitution of the premises only and issue a writ of execution on the judgment. Code of Civil Procedure section 1174(c) does not apply. (Code Civ. Proc., § 1169.) [1] Include in the judgment all tenants, subtenants, named claimants, and other occupants of the premises. The Prejudgment Claim of Right to Possession was served in compliance with Code of Civil Procedure section 415.46. (2) LC] under Code of Civil Procedure section 585(a). (Complete the declaration under Code Civ. Proc., § 585.5 on the reverse (item 5).) 3)y [1] for default previously entered on (date): 2. Judgment to be entered. Amount acknowledged Balance a. Demand of complaint ............ $ $ $ b. Statement of damages * (1)Special .................... $ $ $ (2)General .................... $ $ $ c. Interest ....................... $ $ $ d. Costs (seereverse).............. $ $ $ e. Attorneyfees................... $ $ $ f. TOTALS ...................... $ $ $ g. Daily damages were demanded in complaint at the rate of: $ per day beginning (date): (* Personalinjury or wrongful death actions; Code Civ. Proc., § 425.11.) 3. C1] (Check if filed in an unlawful detainer case) Legal document assistant or unlawful detainer assistant information is on the reverse (complete item 4) Date: 2016-07-26 ) Jonathan Asselin-Normand (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY FOR PLAINTIFF) 1) Default entered as requested on (date): (2) Default NOT entered as requested (state reason): FOR COURT USE ONLY Clerk, by , Deputy Page 1 of 2 FormAdopted for Mandatory Use REQUEST FOR ENTRY OF DEFAULT CodeofCivil Procedure, Judicial Council of California . . §§ 585-587, 1169 CIV-100 [Rev. January 1, 2007] (Application to Enter Default) www.courtinfo.ca.gov CIvV-100 PLAINTIFF/PETITIONER: Jonathan Asselin-Normand CASE NUMBER: CGC 16 552301 DEFENDANT/RESPONDENT: LA LUNA INN, et al. 4. Legal document assistant or unlawful detainer assistant (Bus. & Prof. Code, § 6400 et seq.). A legal document assistant or unlawful detainer assistant [1] did did not for compensation give advice or assistance with this form. (If declarant has received any help or advice for pay from a legal document assistant or unlawful detainer assistant, state): Telephone no.: County ofregistration: Registration no.: Expires on (date): a. Assistant's name: b. Street address, city, and zip code: ~ 0 2 0 5. C1] Declaration under Code of Civil Procedure Section 585.5 (required for entry of default under Code Civ. Proc., § 585(a)). This action a. [] is [] isnot on a contract or installment sale for goods or services subject to Civ. Code, § 1801 et seq. (Unruh Act). b. [] is [1] is not on a conditional sales contract subject to Civ. Code, § 2981 et seq. (Rees-Levering Motor Vehicle Sales and Finance Act). C. [1] is [1] is not on an obligation for goods, services, loans, or extensions of credit subject to Code Civ. Proc., § 395(b). 6. Declaration of mailing (Code Civ. Proc., § 587). A copy of this Request for Entry of Default was a. [1] not mailed to the following defendants, whose addresses are unknown to plaintiff or plaintiff's attorney (names): b. mailedfirst-class, postage prepaid, in a sealed envelope addressed to each defendant’s attorney of record or, if none,to each defendant's last known address as follows: (1) Mailed on (date): 2016-07-26 (2) To (specify names and addresses shown on the envelopes): La Luna Inn 2599 Lombard St San Francisco, CA 94123 | declare under penalty of perjury under the laws of the State of California that the foregoing items 4, 5, and 6 are true and correct. Date: 2016-07-26 Jonathan Asselin-Normand ) “sro AO (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 7. Memorandum of costs (required if moneyjudgment requested). Costs and disbursements are as follows (Code Civ. Proc., § 1033.5): a. Clerk'sfiingfees .................... $ b. Process serversfees ................. $ ¢. Other (specify): ........... $ d. $ e TOTAL.............................$ f. [1] Costs and disbursements are waived. 9- | am the attorney, agent, or party who claims these costs. To the best of my knowledge and belief this memorandum of costs is correct and these costs were necessarily incurred in this case. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: » (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) 8. [1] Declaration of nonmilitary status (required for a judgment). No defendant named in item 1c of the application is in the military service so as to be entitled to the benefits of the Servicemembers Civil Relief Act (50 U.S.C. App. § 501 et seq.). | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: » (TYPE OR PRINT NAME) (SIGNATURE OF DECLARANT) Civ-100 [Rev. January 1, 2007] REQUEST FOR ENTRY OF DEFAULT Page 2 of 2 (Application to Enter Default)
