On August 21, 2013 a
Hearing
was filed
involving a dispute between
Moses Sr., Kenneth,
and
Alta Building Material Co.,
Ames Drywall Products Company,
Cahill Construction Co., Inc.,
Century Indemnity Company,,
Consolidated Insulation, Inc.,
Does 1 To 800, Inclusive,
Douglass Insulation Company, Inc., Et Al.,
Fdcc California, Inc.,
Georgia-Pacific Llc (Fka Georgia-Pacific,
Golden Gate Drywall, Inc.,
Hamilton Materials, Inc.,
James A. Nelson Co., Inc.,
J & R Construction,
Kaiser Gypsum Company, Inc.,
Kelly-Moore Paint Company, Inc.,
Marconi Plastering Company, Inc.,
Pacific Coast Building Products, Inc.,
Rich-Tex, Inc.,
Tom Oaks Drywall,
Union Carbide Corporation,
Moses Sr., Kenneth,
for civil
in the District Court of San Francisco County.
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WILLIAM M. HAKE, ESQ. (SBN 110956)
Bill. Hake@wilsonelser.com
JOHN E. ROSENTHAL, ESQ. (SBN 233591)
John.Rosenthal@wilsonelser.com
B. GARDINER MCKLEROY, ESQ. (SBN 239367)
Gardiner.Mckleroy@wilsonelser.com
WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
525 Market Street, 17th Floor
San Francisco, California 94105
Telephone: (415) 433-0990
Facsimile: (415) 434-1370
Attorneys for Specially Appearing for
Century Indemnity Company,
as successor to CCI Insurance Company,
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
12/01/2016
Clerk of the Court
BY:EDNALEEN ALEGRE
Deputy Clerk
as successor to Insurance Company of North America
the insurer of Defendant James A. Nelson Co., Inc.,
a suspended corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
KENNETH MOSES, SR.,
Plaintiff,
vs.
KAISER GYPSUM COMPANY, INC., et al.,
Defendants.
Case No.: CGC-13-276180
NOTICE OF MOTION AND MOTION
FOR AN ORDER SETTING ASIDE
DEFAULT AND DEFAULT
JUDGMNET ENTERED AGAINST
JAMES A. NELSON, CO., INC.
Date: December 29, 2016
Time: 9:30 a.m.
Dept.: 503, Hon. Garret Wong
Complaint: August 21, 2013
TO THE HONORABLE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF
RECORD:
PLEASE TAKE NOTICE that on December 29, 2016 at 9:30 a.m., or as soon thereafter as
the matter may be heard, in Department 503 of the above entitled Court, located at 400 McAllister,
NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET
ENTERED AGAINST JAMES A. NELSON, CO., INC...
1662899v.1Cm YN DH
St. in San Francisco, Century Indemnity Company, as successor to CCI Insurance Company, as
successor to Insurance Company of North America (“Century Indemnity”) hereby moves this Court
to set aside the entry of default and default judgment against its potential insured James A. Nelson,
Co., Inc., a suspended corporation.
Century Indemnity’s motion is brought on the grounds that the entry of default and default
judgment should be set aside because Plaintiff did not serve James A. Nelson with the complaint
and request for entry of default pursuant to the California statutory requirements (California Code
of Civil Procedure §§ 415 et seg. and Ellard v. Conway (2001) 94 Cal.App.4th 540); and,
alternatively, because Century Indemnity satisfies all of the requirements to set aside a default and
default judgment (see Rappleyea v. Campbell (1994) 8 Cal.4" 975 and California Code of Civil
Procedure § 473 et seq.)
This motion will be based on this Notice of Motion; Memorandum of Points and
Authorities; Declaration of Gardiner McKleroy and exhibits attached thereto; the records and files
of this case, the matters of which the Court takes judicial notice; and the oral arguments, if any,
presented at the hearing. A proposed order is served concurrently herewith.
Dated: December 1, 2016 | WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
By: /s/ Gardiner McKleroy
WILLIAM HAKE
JOHN ROSENTHAL
GARDINER McKLEROY
Counsel for Century Indemnity Company, as successor to CCI
Insurance Company, as successor to Insurance Company of
North America.
2
NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET
ENTERED AGAINST JAMES A. NELSON, CO., INC..
1662899v.1Cem XN a
PROOF OF SERVICE
I, Tyhera Payton, declare as follows: I am employed in the County of San
Francisco, State of California. My business address is Wilson, Elser, Moskowitz,
Edelman & Dicker, LLP, 525 Market Street, 17" Floor, San Francisco, CA 94105. ] am
over eighteen years old and not a party to this action.
On the date set forth below, I served the following document(s) described as:
NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE
DEFAULT AND DEFAULT JUDGMNET ENTERED AGAINST JAMES A.
NELSON, CO., INC.
><]: By Electronic Service. In the ordinary course of business, the foregoing
documents were served to all parties and their counsel registered with File &
ServeXpress, as designated on the Transaction Receipt available on the File &
ServeXpress website.
t declare under ee of perjury under the laws of thg z State of Cali grnikt that the
PROOF OF SERVICE
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WILLIAM M. HAKE, ESQ. (SBN 110956) Bill. Hake@wilsonelser.com JOHN E. ROSENTHAL, ESQ. (SBN 233591) John.Rosenthal@wilsonelser.com B. GARDINER MCKLEROY, ESQ. (SBN 239367) Gardiner.Mckleroy@wilsonelser.com WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 525 Market Street, 17th Floor San Francisco, California 94105 Telephone: (415) 433-0990 Facsimile: (415) 434-1370 Attorneys for Specially Appearing for Century Indemnity Company, as successor to CCI Insurance Company, ELECTRONICALLY FILED Superior Court of California, County of San Francisco 12/01/2016 Clerk of the Court BY:EDNALEEN ALEGRE Deputy Clerk as successor to Insurance Company of North America the insurer of Defendant James A. Nelson Co., Inc., a suspended corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO KENNETH MOSES, SR., Plaintiff, vs. KAISER GYPSUM COMPANY, INC., et al., Defendants. Case No.: CGC-13-276180 NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET ENTERED AGAINST JAMES A. NELSON, CO., INC. Date: December 29, 2016 Time: 9:30 a.m. Dept.: 503, Hon. Garret Wong Complaint: August 21, 2013 TO THE HONORABLE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 29, 2016 at 9:30 a.m., or as soon thereafter as the matter may be heard, in Department 503 of the above entitled Court, located at 400 McAllister, NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET ENTERED AGAINST JAMES A. NELSON, CO., INC... 1662899v.1Cm YN DH St. in San Francisco, Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America (“Century Indemnity”) hereby moves this Court to set aside the entry of default and default judgment against its potential insured James A. Nelson, Co., Inc., a suspended corporation. Century Indemnity’s motion is brought on the grounds that the entry of default and default judgment should be set aside because Plaintiff did not serve James A. Nelson with the complaint and request for entry of default pursuant to the California statutory requirements (California Code of Civil Procedure §§ 415 et seg. and Ellard v. Conway (2001) 94 Cal.App.4th 540); and, alternatively, because Century Indemnity satisfies all of the requirements to set aside a default and default judgment (see Rappleyea v. Campbell (1994) 8 Cal.4" 975 and California Code of Civil Procedure § 473 et seq.) This motion will be based on this Notice of Motion; Memorandum of Points and Authorities; Declaration of Gardiner McKleroy and exhibits attached thereto; the records and files of this case, the matters of which the Court takes judicial notice; and the oral arguments, if any, presented at the hearing. A proposed order is served concurrently herewith. Dated: December 1, 2016 | WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: /s/ Gardiner McKleroy WILLIAM HAKE JOHN ROSENTHAL GARDINER McKLEROY Counsel for Century Indemnity Company, as successor to CCI Insurance Company, as successor to Insurance Company of North America. 2 NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET ENTERED AGAINST JAMES A. NELSON, CO., INC.. 1662899v.1Cem XN a PROOF OF SERVICE I, Tyhera Payton, declare as follows: I am employed in the County of San Francisco, State of California. My business address is Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 525 Market Street, 17" Floor, San Francisco, CA 94105. ] am over eighteen years old and not a party to this action. On the date set forth below, I served the following document(s) described as: NOTICE OF MOTION AND MOTION FOR AN ORDER SETTING ASIDE DEFAULT AND DEFAULT JUDGMNET ENTERED AGAINST JAMES A. NELSON, CO., INC. ><]: By Electronic Service. In the ordinary course of business, the foregoing documents were served to all parties and their counsel registered with File & ServeXpress, as designated on the Transaction Receipt available on the File & ServeXpress website. t declare under ee of perjury under the laws of thg z State of Cali grnikt that the PROOF OF SERVICE