Escolar Documentos
Profissional Documentos
Cultura Documentos
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BENNIE LEWIS and LOUREEN LEWIS, )
10 individuals and as trustees of the Bennie ) Case No.: MC027031
and Loureen Lewis Living Trust )
11 ) NOTICE AND NOTICE OF MOTION AND
PLAINTIFFS, ) MOTION TO SET ASIDE DEFAULT
12 ) JUDGMENTM DECLARATION OF
) DEFENDANT PATRICIA LEWIS IN
13 ) SUPPORT TO MOTION TO SET
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PATRICIA LEWIS, an individual; and ASIDE DEFAULT JUDGMENT;
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DOES 1-50 inclusive ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT
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DEFENDANT. ) THEREOF
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) DATE July 24, 2017
17 ) TIME: 8:30 A.M.
DEPT.: Department A-15
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN that, on July 24, 2017 at 8:30 A.M., or as soon
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thereafter as the matter may be heard, in Department A-15 of the above captioned
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court, located at 42011 4th Street West, Lancaster, California, Defendant PATRICIA
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LEWIS will move for an order pursuant to Code of Civil Procedure Section 473 and
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Code of Civil Procedure Section 473.1 relieving her from the default entered on May 11,
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2 within six months based on: Mistake, Inadvertence, Surprise, Excusable Neglect.
3 Defendant send to the court by mail the response to the Defendant Complaint,
4 when Defendant check with the court on 05/17/2017, she find out that a default
5 judgment has been entered, Defendant presented to the clerk her copy of the answer.
6 See attached Exhibit 1. Defendant was told by the clerk that she needed to file a
8 The motion will be based on the Memorandum of Points and Authorities and the
9 Declaration of Patricia Lewis which follow, and on all of the pleading, records, and files
10 in this action.
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Dated: May 20, 2017 Respectfully Submitted
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______________________________________
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PATRICIA LEWIS, Defendant-In Pro Per
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9 BENNIE LEWIS and LOUREEN LEWIS, ) Case No.: MC027031
individuals and as trustees of the Bennie )
10 and Loureen Lewis Living Trust ) DECLARATION PATRICIA LEWIS
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PLAINTIFFS,
) DATE JULY 24, 2017
12 ) TIME: 8:30 A.M.
) DEPT.: Department A-15
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vs. )
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14 PATRICIA LEWIS, and individual; and )
DOES1-50 inclusive )
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DEFENDANTS. )
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22 seeking relief from the Default Judgment entered on 05/11/2017, I am also requesting
23 that the Court to grant me to file the answer to the complaint, which is attached to the
24 motion.
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2 stipulated Judgment reached between the parties due to provisions contained therein
3 that I objected to, and that I had repeatedly asked my then attorney of record Debra
4 Burdette to have changed before I would agree to sign. I initialed the pages I agreed to
5 and asked Debra Burdette to have opposing counsel make several changes. Without
6 my consent, Debra Burdette signed the stipulation and sent it to opposing counsel.
9 continued to from September 15, 2011. On Monday October 17, 2011 I received a
10 notice via email from opposing counsel that she would be requesting a continuance of
11 my motion due to late service. I was at the Court on that date and advised that my
12 motion had been taken off calendar but I do not know how or by whom or why.
14 Judgment. Debra Burdette is no longer my attorney or record and does not have
17 changed, or explained which never happened. I have emails that I am attaching hereto
18 as Exhibit A that details my desire to have changes made and stating that I did not
20 6. I am unsure exactly what has taken place here but I never agreed or
21 consented to removing my motion from the Calendar, I was never notified of any other
22 court dates, and I do not consent or agree to the Stipulated Judgment that was entered.
24 Stipulate Judgment and allow a new trial to be set. I also ask that if the Writ has already
25 been issued that the Court Recall or Quash the writ pending a new trial on the matter.
3 I declare under penalty of perjury that the foregoing is true and correct and if
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______________________________________
8 PATRICIA LEWIS, Defendant-In Pro Per
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BENNIE LEWIS and LOUREEN LEWIS, )
9 indivudals and as trustees of the Bennie ) Case No.: MC027031
and Loureen Lewis Living Trust )
10 ) MEMORANDUM OF POINTS AND
PLAINTIFFS, ) AUTHORITIES
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)
12 ) DATE JULY 24, 2017
PATRICIA LEWIS, an individual; and )
DOES 1-50 inclusive TIME: 8:30 A.M.
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DEPT.: Department A-15
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14 DEFENDANT. )
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A JUDGMENT ENTERED AGAINST A PARTY SHOULD BE SET ASIDE
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WHEN THE PARTY WAS NOT NOTIFIED OF THE PROCEEDINGS
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THE COURT MAY, UPON SUCH TERMS AS MAY BE JUST,
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RELIEVE A PARTY FROM A PROCEEDING TAKEN AGAINST HIM
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THROUGH HIS MISTAKE, INADVERTENCE, SURPRISE
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OR EXCUSABLE NEGLECT
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Code of Civil Procedure Section 473 grants authority to the court to set aside
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defaults and default judgments that have been entered against a party:
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(b) The court may, upon any terms as may be just, relieve a party or his
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or her legal representative from a judgment or other proceeding taken
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against him or her through his or her mistake, inadvertence, surprise, or
11 excusable neglect. Application for this relief shall be accompanied by a
12 copy of the answer or other pleading proposed to be filed therein, and
15 In Baratti v. Baratti (1952) 109 Cal. App. 2d 917 the court defined the 473
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18 than they are; a mistake of law is when a person knows the facts as they
19 really are but has a mistaken belief as to the legal consequences of those
4 Surprise constituting grounds for a set-aside under C.C.P. 473 was found
5 where the party against whom the default had been taken did not receive actual notice
6 due to the fact that the party was not actually served with process. Thus, in the case of
8 Alliance (1984) 162 Cal. App. 3d 1166, the court found that [p]laintiff was not notified of
9 the assignors service of process or default being entered before the entry of the default
10 judgment, and thus was taken by surprise. 162 Cal. App. 3d at 1173 (emphasis added).
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trial and disposition on the merits. [citations]. Moreover, any doubts in
applying section 473 must be resolved in favor of the party seeking relief
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from default. [citations]. Additionally, where the party in default moves
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promptly to seek relief, and the party opposing the motion will not suffer
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prejudice if relief is granted, the policy of permitting trial on the merits
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must prevail. [citations].
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Brochtrup v. Intep (1987) 190 Cal. App. 3d 323 at 329 (emphasis added).
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In the instant case, Defendant did not agree to the provisions contained in the
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stipulated Judgment and communicated this on several occasions in writing to her own
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attorney and to the attorney for the Plaintiff. It was clear to all parties that when
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Defendant filed her motion to set-aside or oppose the stipulated Judgment that there
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were obviously points with which she disagreed.
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Due to some mistake, misunderstanding or other circumstance beyond the
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Defendants control, the stipulated Judgment was entered on October 24, 2011 signed
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by Defendants former attorney of record Debra Burdette. This alone should invalidate
2 agreement should not bear her name. Furthermore, Defendant declares that she did
3 not sign the agreement and withheld her signature until the corrections and/or
4 requested changes were made or various provisions were clarified. That this Stipulation
5 has been filed in opposition to Defendant and without her agreement shows that the
6 Plaintiffs are not playing fair and are merely using this court to gain the upper hand.
7 Defendant has emails from opposing counsel that makes it abundantly clear that
8 Plaintiff understood and acknowledged that the Defendant had a motion pending before
9 this Court and that Plaintiffs intended to request a continuance. How this matter came
11 For all of the foregoing reasons, defendant respectfully requests that the court
12 grant her motion to set aside or vacate the Stipulated Judgment, and to Recall or Quash
13 (the subsequent) Writ of Execution while this matter is pending, and to permit a New
14 Trial.
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18 PATRICIA LEWIS, Defendant-In Pro Per
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I am employed in the County of Los Angeles, State of California. I am over the
5 age of 18 and not a party to the within action. My business address is
____________________________________________________________________
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On May 22, 2017, I served the foregoing document described as: NOTICE AND
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NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT JUDGMENT;
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DECLARATIONS IN SUPPORT THEREOF; MEMORANDUM OF POINTS AND
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AUTHORITIES IN SUPPORT THEREOF
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on the interested party or parties in this action by placing an original or a true copy
11 thereof enclosed in a sealed envelope addressed as follows:
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BY FACSIMILE I caused such document to be transmitted by means of facsimile
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machine, the transmittal attached hereto, to the number facsimile number as shown
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above.
23 I declare under penalty of perjury under the laws of the State of California that
24 the above is true and correct. Executed on May 22, 2017 at Palmdale, California.
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Rosa A. Urbina
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