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ATTORNEY FOR DEFENDANT 1234 N. Main Street, Orange, CA 92867 (714) 000-0000 Attorney for Defendants Jon Doe and Jane Doe

SUPERIOR COURT OF CALIFORNIA COUNTY OF LOS ANGELES, CENTRAL DISTRICT

) ) ) ) ) Plaintiff, ) ) ) v. ) ) JON DOE; JANE DOE; and DOES 1 to ) 10, ) ) ) Defendants. ) ) ) ) ) ) ) ) ) TOM SMITH,

Case No.: #### NOTICE OF MOTION AND MOTION TO SET ASIDE ENTRY OF DEFAULTAND DEFAULT JUDGMENT AGAINST DEFENDANTS JON DOE AND JANE DOE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF DEFENDANT JON DOE AND JANE DOE; [Proposed] ANSWER Date: Time: Department: Judge: July , xxxx 8:30 AM Dept. ### Honorable XXX

TO PLAINTIFF TOM SMITH AND OMAR GASTELUM, HIS ATTORNEY OF RECORD:


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NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT

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PLEASE TAKE NOTICE that, on August , 2010, at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department 88C as posted of the aboveentitled court located at 505 South Centre Street, San Pedro, CA 90731 Defendants JON DOE and JANE DOE will, and hereby do, move the court for an order to set aside the default and default judgment that had been entered against them. Defendants motion will be made on the following grounds: (1) C.C.P. Section 473(d): Default judgment is void due to improper service; (2) C.C.P. Section 473(d): Defendants did not have actual or constructive notice of proceedings; (3) C.C.P. Section 473.5: Defendants never received actual notice of the proceedings. The motion will be based on the attached Memorandum of Points and

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Authorities, Declaration of Jon Doe and Jane Doe, Proposed Motion to Quash, together with the records, papers and file of the within matter, and such other evidence, both oral and documentary, as may be presented at the hearing of the motion.

DATED: June 10, 2010 Attorney for Defendants

__________________________ By: (name) Attorney for Defendants Jon Doe and Jane Doe

NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT

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ATTORNEY FOR DEFENDANT 1234 N. Main Street, Orange, CA 92867 (714) 000-0000 Attorney for Defendants Jon Doe and Jane Doe

SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE-CENTRAL JUSTICE CENTER TOM SMITH, ) ) Plaintiff, ) v. ) JON DOE; JANE DOE; and DOES 1 to ) 10, ) ) ) Defendants. ) ) ) ) ) ) Case No.: ####

MEMORANDUM OF POINTS AND AUTHORITIES

Date: July , Time: 8:30 a.m. Dept.:

STATEMENT OF FACTS Default was taken against Defendants Jon Doe and Jane Doe in the aboveentitled action on April 22, 2009, and default judgment entered on November 4, 2009. However, because of the lack of service of the summons and complaint as well as subsequent notices, the moving defendants were unaware of the complaint and associated proceedings, and did not retain counsel to respond accordingly. Upon review discussion with family members, Defendants discovered that the summons and
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complaint was served on their 13 year old grandson, who never informed them of the pending action. As a matter of fact, when questioned by defendants, their grandson did not remember what he did with the summons and complaint as he did not understand or appreciate the gravity of the documents given to him. Any service, even if substituted, was clearly ineffective when delivered to a minor. Clearly, there has been an absolute lack of actual or constructive notice and a failure of service of process on Defendants. Consequently, any subsequent judgment as a result should be considered void and set aside. ARGUMENT I IMPROPER SERVICE OF SUMMONS RENDERS A JUDGMENT VOID AS A MATTER OF LAW Where service was improper, Code of Civil Procedure, 473(d) provides that the court may set aside default judgment valid on its face, but void as a matter of law due to the improper service. Ellard v. Conway (2001) 94 Cal.App.4th 540, 544, 114 Cal.Rptr.2d 399, 401. The grandson (Bobby Doe, age 12) of Defendants received the summons and complaint, despite what was attested to in the proof of service filed by Plaintiff (see Declarations of Jon Doe and Jane Doe). Because the summons and complaint was delivered to Bobby Doe, this minor child statutorily cannot receive service of process. In addition to no actual notice, simply a lack of constructive notice is enough to render the judgment void and subject to being set aside pursuant to CCP 473(d). Lovato v. Santa Fe Intl Corp. (1984) 151 Cal.App.3d 549, 553, 198 Cal.Rptr. 838, 840, where the court ruled that there was no notice because papers were served upon an attorney who was suspended by the State Bar and thus had no authority to represent defendant.

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II PURSUANT TO CCP 473.5 THE COURT WILL SET ASIDE A DEFAULT JUDGMENT WHERE THERE WAS NO ACTUAL NOTICE Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default judgment. C.C.P. Section 473.5. This section is designed to provide relief where substitute service nevertheless did not provide actual notice to defendant in time to defend the action. Randall v. Randall (1928) 203 Cal. 462, 464-465, 264 P. 751, 752. Defendant may seek relief under CCP 473.5 within 2 years after entry of default judgment. CCP 473.5; Schenkel v. Resnik (1994) 27 Cal.App.4th Supp. 1, 4, 33 Cal.Rptr.2d 60, 61. Although substitute service may have been rendered, Defendants never received actual notice of the lawsuit.

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III THE POLICY OF THE LAW FAVORS HEARING ON THE MERITS WHERE RELIEF IS SOUGHT BY A TIMELY MOTION AND THE MOVING PARTY HAS A MERITORIOUS DEFENSE A. Timeliness of motion. The filing of this motion is made within the time frame allowed by statute since it is made within two years after entry of default judgment (judgment entered on November 4, 2009). CCP Section 473.5. Furthermore, although the motion is addressed to the sound discretion of the trial court, such discretion should be exercised with a view to seeing that justice is done [Sanford v Smith (1970) 11 CalApp3d 991, 998, 90 Cal Rptr 256]. B. Meritorious Defense.

The policy of law favors, wherever possible, a hearing on the merits, and disfavors a party who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his or her adversary. Thus
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appellate courts are much more disposed to affirm an order if the result is to compel a trial on the merits than they are when the judgment by default is allowed to stand and it appears that a substantial defense could be made [Weitz v Yankosky (1966) 63 Cal2d 849, 855, 48 Cal Rptr 620, 409 P2d 700 (motion in equity); Slusher v Durrer (1977) 69 Cal App3d 747, 753, 138 Cal Rptr 265]. Defendant has meritorious defenses to the action, as shown by the proposed Answer included herewith. In short, this is simply a dispute over money owed as a result of a purported loan - there is no fraud, and Defendants will defend themselves accordingly. Moreover, in order to move forward with the merits of the case, Defendants attorney will acknowledge service of the summons and complaint upon receipt of same. CONCLUSION For the foregoing reasons, Defendants JON DOE and JANE DOE respectfully

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request that the court grant their motion and set aside the default and default judgment that had been entered against them.

Attorney for Defendants

DATED: May 28, 2010

__________________________ BY: (name) Attorney for Defendants Jon Doe and Jane Doe

NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT

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DECLARATION OF JON DOE AND JANE DOE

We, Jon Doe and Jane Doe, declare as follows: 1. We are the Defendants named in this case, and declare that the following facts are known by us to be true, and of our own personal knowledge. We are competent to testify to such facts, and would so testify if we appear in court as witnesses. 2. Our grandson is Bobby Doe and is age 13 at this time. 3. We never received the underlying summons and complaint in this case at any time. 4. Enrique Rodriguez informed us that he was given paperwork that looked like a summons and complaint on or about (date). However, he also did not know what he did with the paperwork, and never gave it to us for review. 5. We have made a diligent attempt to find the summons and complaint in the house, but have been unable to locate them.

We declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

DATED: June 10, 2010

______________________ JON DOE

______________________ JANE DOE


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NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT