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Monika M. Setyan In-Pro-Per 11518 B. Santa Monica Blvd. Suite #303 Los Angeles, CA 90025 (310) 477-4440

SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES

VAZGEN MIRZAKHANYAN PLAINTIFF, vs. MONIKA M.SETYAN, ET AL DEFENDANT

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Case No.: BC442906 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT ENTERED ON JULY 17, 2011 MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MONIKA M. SETYAN IN SUPPORT THEREOF. PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE TO 473 (b).

Date: Dept: Time: TO THE Plaintiff VAZGEN MIRZAKHANYAN AND ITS ATTORNEYS OF RECORD: COMES DEFENDANT MONIKA M. SETYAN with this motion to vacate the Dismissal is made on the grounds that the Default and Default Judgment was entered because of DEFENDANTS MONICA M. SETYANS honest mistake and excusable neglect, pursuant to 473(b), based on DEFENDANTS failure to know laws and court rules because she does not possess any legal knowledge. DEFENDANT was left without

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an attorney when her counsel requested and was granted the motion to be relieved as Monika M. Setyans counsel by the court on May 27, 2011. The motion is based on attached declaration of Monica M. Setyan, the Court file and on such oral documentary evidence as may be presented at time of trial.

Dated: August 11, 2011 ______________________________ By: Monika M. Setyan In-Pro-Per

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This case involves a Contractual fraud claim of PLAINTIFF VAZGEN MIRZAKHANYAN against the DEFENDANT MONIKA M. SETYAN and et al arising out of PLAINTIFF VAZGEN MIRZAKHANYANs allegations for breach of contract and failure to return a real property downpayment. The Complaint was filed on August 2, 2010 and served on September 14, 2010. The answer was due on October 14, 2010. Unfortunately, counsel for Monica M. Setyan failed to file an answer and as a result the Default and default judgment was entered. Subsequently, DEFENANTS counsel asked the Court to be relieved as DEFENDANTS counsel and was granted that motion. Accordingly, the default and default judgment was a result of DEFENDANTS counsel to timely respond in the allotted 30 day period and DEFENDANTS own inadvertent mistake and excusable

negligence not to know laws and court rules with respect to timely court responses. Therefore, the DEFENDANT now makes this motion to vacate the default and default judgment entered on July 19, 2011.

ARGUMENT California Code of Civil Procedure, Section 473 (b) states

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in pertinent part that The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Based on the facts aforementioned,

Monika M. Setyan made an inadvertent mistake by not answering the complaint because she does not have any legal knowledge and was left without a viable defense counsel under surrounding set of circumstances. Therefore, this statutory prerequisite is

satisfied. Furthermore, under 473 (b), Application for this

relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within

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a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken In this case, this application to set aside default is entered within a reasonable time and, hence, the allotted statutory 6 months period from the entry of default by the Court on July 17, 2011. This request is filed only within one month after the default was entered. // // // Hence, this

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requirement is satisfied as well. However, 473 (b) also discloses that in the case of a judgment, dismissal, order, or other proceeding

determining the ownership or right to possession of real or personal property, [the six-month period does not extend and application of the for relief] shall In this expire case, 90 to days after M.

service

notice

MONICA

SETYANS personal knowledge this case, although about eal property, does not deal with the determination of the real or personal propertys right of possession. Even if the

case that the judge determines that the case deals with the determination of real property rights, this COURT REQUEST was filed within only one month of the entry of default judgment and, hence, within applicable 90 days period.

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Also, based on 473 (b) No affidavit or declaration of merits shall be required of the moving party.

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an [] affidavit attesting to [her] mistake, inadvertence, surprise, or neglect, vacate

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any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by [] mistake, inadvertence, surprise, or neglect. In the present case, good grounds for relief under this code exist because the dismissal was caused by DEFENDANTs
inadvertent failure to

file and serve the DEFENDANTs answer prior

to the Plaintiff obtaining a default. DEFENDANT, in this case, does not have any legal knowledge and was left without a viable defense counsel under the surrounding set of circumstances.

CONCLUSION Based on the foregoing, DEFENDNANT respectfully requests that the Court grant the Defendants motion to vacate the Default and Default judgment entered on July 17, 2011.

Dated: August 11, 2011 ______________________________ By: Monika M. Setyan In-Pro-Per

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DECLARATION OF MONIKA M. SETYAN IN SUPPORT OF PLAINTIFFS MOTION TO VACATE DISMISSAL OF THE PLAINTIFFS COMPLAINT. I, Monika M. Setyan, declare:
1.

I am currently self-represented since my previous counsels Request to be Relieved as my Counsel was granted by the Court on May 27, 2011. All facts in this declaration are

based on my personal knowledge and I could and would competently testify thereto if called upon to testify in a Court of law. 2. This case involves a Contractual Fraud claim of PLAINTIFF et

VAZGEN MIRZAKHANYAN against I, DEFENDANT, MONICA M. SETYAN,

al, arising out of PLAINTIFF VAZGEN MIRZAKHANYANs allegations for breach of contract and failure to return a real property down-payment. 3. The Complaint was filed on August 2, 2010 and served on September 14, 2010. The answer was due on October 14, 2010. 4. Unfortunately, I personally do not have any legal background or knowledge, in order to know a due date for an answer to a complaint. My counsel did not respond to PLAINTIFFS COMPLAINT

in a timely manner and, thereafter, requested and was granted the request to be excused as my counsel. Therefore, neither my

excused defense counsel nor I filed an answer to the complaint

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and as a result the Default and default judgment was entered on July 27, 2011. 5. Accordingly, the default and default judgment resulted due to my inadvertent mistake excusable negligence of not knowing laws and court rules when to file an answer to a complaint because I do not possess any legal knowledge with respect to due dates in California court system. 6. Further, in compliance with statute a true and correct copy of the answer is attached and identified as Exhibit A.

The foregoing is true and correct under the penalty of perjury under the laws of the State of California

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Executed this 11th day of August of 2011. _________________________ Monika M. Setyan Declarant