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KOI
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
May-15-2012 11:46 am
Case Number: CUD-12-641034
Filing Date: May-15-2012 11:45
Filed by: MICHAEL RAYRAY
Juke Box: 001 Image: 03615102
MOTION FOR SET ASIDE/VACATE JUDGMENT
SHEILA YEE VS. MEI BIN et al
001003615102
Instructions:
Please place this sheet on top of the document to be scanned.28
Fass we «Na LF
Thomas Mayhew (SBN 183539)
tmayhew@fbm.com
Amanda D. Hairston (SBN 251096)
ahairston@fbm.com
FARELLA BRAUN + MARTEL LLP
235 Montgomery Street, 17th Floor
San Francisco, CA 94104
Telephone: (415) 954-4400
Facsimile: (415) 954-4480
Attorneys for Defendant
Melvin Ferrera (sued as “MEI BIN”)
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
SHEILA YEE, Case No. CUD-12-641034
Plaintiff, NOTICE OF MOTION AND MOTION;
POINTS AND AUTHORITIES IN
vs. SUPPORT OF DEFENDANT'S
MOTION TO VACATE DEFAULT AND
MEI BIN, and DOES I through X. DEFAULT JUDGMENT AND RECALL
THE WRIT OF POSSESSION
Defendants.
Date: Mayged, 2012
Time: 9:30 a.m.
Location: Department 501
Judge: Hon. Ronald E. Quidachay
NOTICE OF MOTION AND MOTION
TO PLAINTIFF:
PLEASE TAKE NOTICE that on May aaR 2012, Defendant Melvin Ferrera (sued as “MEI
BIN”) will move and does hereby move to Vacate the Void Judgment under CCP §§ 473 (b) and
(d). The hearing on Mr. Ferrera’s Motion will be held at 9:30 a.m., or as soon thereafter as the
matter can be heard, in the Law and Motion Department of the above-entitled Superior Court,
Dept. 501, 400 McAllister St., San Francisco, California.
This motion is based upon California Code of Civil Procedure §§ 473 (b), (d), 1161B and
1161C, the Federal Protecting Tenants at Foreclosure Act of 2009 and the San Francisco Rent
NOTICE OF MOTION AND MOT
RECOV Uae Popes
JTHORITIES IN SUPPORT OF DEFENDANT'S.1 | Stabilization and Arbitration Ordinance; this notice; the attached memorandum of points and
2 | authorities; all papers and records on file herein; and such evidence, both oral and documentary,
3 || as may be presented at the hearing of this motion.
Dated: May 14, 2012 FARELLA BRAUN +MARTEL LLP
by: Moshe
anda Hairston
8 y Attorneys for Defendant
9 MELVIN FERRERA
10 | MEMORANDUM OF POINTS AND AUTHORITIES
11 Defendant Melvin Ferrera, by and through his attorneys. hereby submits this
12 | Memorandum of Points and Authorities in Support of his Motion to Vacate Judgment under
13 | CAL. CIV. PROC. CODE § 473 (b) and (d), as follows:
l4q. STATEMENT OF FACTS
15 This is an unlawful detainer action based on a foreclosure sale. Mr, Ferrera has lived in
16 | the subject premises, 344 Holloway Avenue, San Francisco for approximately six years as a
17 | tenant of the previous foreclosed homeowner and the most recent purchaser of the property,
18 | plaintiff Sheila Yee. See Declaration of Melvin Ferrera in Support of Motion to Set Aside
19 | Default and Default (“Ferrera Decl.”), attached hereto as Exhibit A, 2,4. Mr. Ferrera isa
20 | Honduran immigrant and is a monolingual Spanish speaker who does not speak or read English.
21 | See Ferrera Decl. at 93.
22 } The complaint on file with the court notes that the property was purchased at a foreclosure
23 | sale and includes only a three day notice to quit addressed to “MEI BIN and All Tenants.” The
24 | three-day notice to pay or quit alleges that $871 is due for the period of March 30, 2012 to April
25 | 5, 2012. The Complaint and its exhibits are attached hereto as Exhibit B. Plaintiff alleges that
26 | the Defendants in this action are tenants with a written rental agreement with Plaintiff's
27 | predecessor in interest for a month-to-month tenancy but does not allege an agreed-upon due date
28
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for the rent, Paragraph 6 of the Complaint also states that the written agreement is attached as
Exhibit | to the Complaint, but no such Exhibit is attached.
Mr. Ferrera has occupied various rooms in the subject property for approximately six
years. See Ferrera Decl. at {4. At all times, Mr. Ferrera had an oral rental agreement with the
previous owner, Carlos. See Ferrera Decl. at §5. Most recently, Mr. Ferrera had an oral
agreement to pay $400 per month in rent. See Id. Mr. Ferrera has never been evicted before.
See Id. at (6. Mr. Ferrera shares the property with eight other occupants, each of whom has a
separate rental agreement. See Id. at $7.
In this unlawful detainer action, Mr. Ferrera never received a copy of the April 5, 2012 3-
day notice to pay rent or quit, the summons and complaint, or the pre-judgment claim form. See
Ferrera Decl. at §8. The first time Mr. Ferrera was informed of the nature of this case was May 2,
2012 when he received from one of the other occupants of the property a Notice to Vacate from
the Sherriff’s office. See Ferrera Decl. at (9. The Notice to Vacate did not have Mr. Ferrera’s
name on it, it refers only to “MEI BIN.” While it is now presumed that “MEI BIN” is an attempt
to phonetically spell Mr. Ferrera’s first name — Melvin — this was not clear to Mr. Ferrera who
does not speak or read English. See Ferrera Decl. at §10. Plaintiff's proof of service for her
Complaint also refers only to “MEI BIN.”
Mr. Ferrera did not understand the Notice to Vacate. See Ferrera Decl. at 711. Despite
his inability to read the English document, he made immediate and consistent efforts to address
the situation, Over the next week, Mr. Ferrera contacted the Eviction Defense Collaborative who
assisted him in filing an Application for Stay of Execution on May 8, 2012, which was granted by
this Court. See Ferrera Decl. at 12. At that time, no attorney was appointed to assist Mr.
Ferrera in filing a motion to vacate the default judgment against him. /d. After receiving the
stay, he immediately contacted the Homeless Advocacy Project who put him in touch with his
current counsel on May 10, 2012. See Ferrera Decl. at 13.
The eviction proceeding has come as a surprise to Mr. Ferrera. See Ferrera Decl. at ql4.
When the property was sold out of foreclosure in March 2012, Mr. Ferrera did not receive notice
from the new owner Sheila Yee nor did he receive any instructions on how he should pay his rent.
NOTICE OF MOTION AND MOTI
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ITIES IN SUPPORT OF DEFENDANT'Swe
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See Ferrera Decl. at 15. Although plaintiff has attached a “final notice” dated March 30, 2012 to
her complaint, that notice was never received by Mr. Ferrera. /d. Moreover, the final notice was
addressed to “MET BIN and all Occupants” and is written in English. Mr. Ferrera has never
communicated directly with Ms. Yee and has only spoken with her husband Louis Zhang. See
Ferrera Decl. at 16. When Mr. Ferrera did learn that Ms. Yee owned the property, he and the
other occupants of the house sent a letter on April 19, 2012 to Ms. Yee and Mr, Zhang explaining
that there were numerous conditions that effect the habitability of the property including rat and
cockroach infestations, no heat or functioning heat sources, non-functioning appliances, no
electricity in some rooms, broken stairs, leaking roof, and water intrusion and mold. See Ferrera
Decl. at 17. Had Mr, Ferrera received the 3-day notice to quit or the summons and complaint
filed in this action, he would have acted diligently to respond. See Ferrera Decl. at 418. For the
first time, after May 2, Mr. Ferrera learned that another occupant of the house — Orland Chavez —
had filed a document in this action. See Ferrera Decl. at 19.
il. THIS COURT SHOULD SET ASIDE THE VOID JUDGMENT IN THIS CASE
BECAUSE PLAINTIFF HAS FAILED TO COMPLY WITH CODE OF CIVIL
PROCEDURE §§ 1161b, 1161c, THE FEDERAL PROTECTING TENANTS AT
FORECLOSURE ACT OF 2009 AND THE SAN FRANCISCO RENT
STABILIZATION AND ARBITRATION ORDINANCE.
The court has authority to void the judgment here under CCP § 473(d). The judgment is
void because Plaintiff has not complied with the mandates of Code of Civil Procedure §§ 1161B,
1161C, the Protecting Tenants at Foreclosure Act of 2009 and the San Francisco Rent
Stabilization and Arbitration Ordinance.
A. THE COURT HAS AUTHORITY TO VACATE THE VOID JUDGMENT.
The court should set aside the void judgment under the authority it has under Code of
Civil Procedure §473 (d). Subsection (d) of CCP § 473 states, in relevant part:
The court may... on motion of either party after notice to the other party, set aside any
void judgment or order.
B. PLAINTIFF HAS NOT GIVEN 60 DAYS WRITTEN NOTICE.
Plaintiff has not complied with Code of Civil Procedure §1161b. CCP §1161b requires
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)F MOTION AND MOTION; POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S131s) 95454400
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60 days’ written notice to quit before a tenant may be removed from a property sold at
foreclosure. The property was purchased at a foreclosure sale, as alleged in Plaintiff's complaint.
Mr. Ferrera is a tenant. Plaintiff has not alleged any service of a sixty day notice and Mr. Ferrera
has received no such notice. Section 1161b has not been complied with and so Mr. Ferrera
cannot be removed from the property and the complaint cannot support a judgment.
Cc. PLAINTIFF HAS NOT GIVEN THE REQUIRED NOTICE UNDER CCP §
1161C.
Similarly, Plaintiff has not complied with CCP § 1161c. This section requires that the
purchaser of a foreclosed property attach a cover sheet containing required language to any notice
of termination of tenancy served on a tenant of the property. It states that:
In the case of any foreclosure on a residential property, the immediate successor in interest
in the property pursuant to the foreclosure shall attach a cover sheet, in the form as set
forth in subdivision (b), to any notice of termination of tenancy served on a tenant of that
property within the first year after the foreclosure sale.
CCP §1161c. Plaintiff has made no allegations of compliance with §1161¢ and Mr. Ferrera has
not received any such notice. None of the exceptions provided for in §1161c apply to this
situation — no new rental agreement has been signed and Mr. Ferrera was a tenant well before
foreclosure proceedings began. Therefore the judgment is invalid.
D. PLAINTIFF HAS NOT GIVEN THE REQUISITE 90 DAY NOTICE.
Plaintiff has also failed to comply with the Federal Protecting Tenants at Foreclosure Act
of 2009, The Protecting Tenants in Foreclosure Act of 2009 requires:
In the case of any foreclosure ... on any dwelling or residential real property...any
immediate successor in interest in such property pursuant to the foreclosure shall assume
such interest subject to—
(1) the provision, by such successor in interest of a notice to vacate to any
bona fide tenant at least 90 days before the effective date of such notice; and
(2) the rights of any bona fide tenant, as of the date of such notice of foreclosure—
12 U.S.C. § 5220 note (emphasis added); The Protecting Tenants at Foreclosure Act of 2009,
Pub. L. No. 111-22, tit, VII, § 702, 123 Stat.1632, 1660-62 (2009). Mr. Ferrara is a bona fide
tenant of the unit at 344 Holloway Ave. Therefore, in order to evict Mr. Ferrera from the
foreclosed property, under federal law Plaintiff was required to give them 90 days notice. The
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NOTICE OF MOTION AND MOTION: POINTS AN
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federal law does not give any exception to the minimum 90-day notice requirement, even for
alleged nonpayment of rent. See PNMAC Mortgage y. Stanko (March 7, 2012 order from the
Superior Court for the County of Los Angeles, Case No. 11004495, Hon. Lawrence H. Cho a
copy is attached hereto as Exhibit C). Plaintiff did not provide the requisite 90-day notice, and in
fact did not give Mr. Ferrera any notice at all. Therefore Plaintiff is barred by federal law from
evicting Mr. Ferrera and the judgment is void.
E. THE JUDGMENT IS ALSO VOID BECAUSE PLAINTIFF’S COMPLAINT
IMPROPERLY SEEKS TO COLLECT RENT THAT WAS NOT YET DUE
Paragraph 6 of the Complaint alleges that the Defendants have a written rental agreement
and claims that a copy is attached, but no copy of the agreement was attached. No agreed upon
due date for the rent is alleged. Civil Code section 1947 provides:
When there is no usage or contract to the contrary, rents are payable
at the termination of the holding when it does not exceed on year.
If the holding is by the day, week, month, quarter or year, rent is
payable at the termination of the respective period as it successively
becomes due.
Because Plaintiff has not alleged a “usage or contract to the contrary,” Mr. Ferrera’s
monthly rent would thus be due at the end of each month in accordance with Civil Code section
1947. The three-day notice, however, which was allegedly served on April 5, 2012, seeks rent for
the period March 30, 2012 to April 5, 2012.
Since Plaintiff failed to allege a proper cause of action for the rent claimed in the three-
day notice, the judgment in this action should never have been entered and must now be declared
void.
F. THE JUDGMENT IS VOID BECAUSE ONE OF THE OCCUPANTS OF
THE PROPERTY FILED A PRE-JUDGMENT CLAIM THE DAY BEFORE
THE JUDGMENT WAS ISSUED
According to the Register of Actions in this case, a Pre-Judgment Claim of Right to
Possession was filed by Orlando Chavez, another occupant of the property. Per CCP §1174.3,
Mr. Chavez then had 5 days during which to file his responsive pleading. Mr. Chavez actually
attempted to do so on May 1, 2012 but his filing was rejected by this Court because judgment had
already been entered on April 27, 2012. Accordingly, the judgment should be vacated since it
was issued in violation of CCP §1174.3.
NOTICE OF MOTION AND MOTION
Na ee ep ee
ORT
IN SUPPORT Of DEFENDANT'STS) 9st-4an
I. INTHE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS
DISCRETION TO GRANT RELIEF FROM JUDGMENT PURSUANT TO
CCP 473(b) BECAUSE MR. FERRERA ACTED WITH REASONABLE
DILIGENCE, PRUDENCE AND CARE UNDER THE CIRCUMSTANCES
Alternatively, the court should vacate the judgment pursuant to Code of Civil Procedure §
473(b). Civil Procedure Section 473(b) states that the Court “may... relieve a party from a
Judgment... taken against him or her through his or her mistake, inadvertence, surprise or
excusable neglect.” The court reviews the actions of the moving party that seeks relief and
inquires as to the whether the moving party has exercised “reasonable care and prudence” under
the circumstances in its attempt to respond in the action. Elms y. Elms, 72 Cal.2d 508. 513
(1946). Justification for such relief need only be proven by a small margin of evidence and the
display of prompt efforts made by the party seeking relief. Shamblin v. Brattain, 44 Cal.3d 474,
478 (1988).
California courts have repeatedly emphasized the need for liberal construction of Code of
Civil Procedure section 473 to ensure full and fair presentation of each case on its merits. All
doubts should be resolved in favor of the moving party:
“Section 473 of the Code of Civil Procedure is a remedial provision and is to be liberally
construed so as to dispose of cases upon their merits... even in a case where the showing
under section 473 is not strong, or where there is any doubt as to the setting aside of a
default, such doubt should be resolved in favor of the application.” Van Dyke v.
MacMillan (1958) 162 Cal.App.2d 594.
Furthermore, appeilate courts are consistently more disposed to affirm orders that result in trial
rather than those which hoid firm the default. Weitz v. Yanowsky (1966) 63 Cal.2d 849, Karlein
y. Karlein, supra. In order to obtain relief. the moving party must carry the burden of proof.
General Bank Nederland v. Eyes of the Beholder Ltd., 61 Cal.App.4th 1384, 1398 (1998). It
must persuade the Court that it was not “grossly careless as to {its] own affairs”. Gillingham v.
Lawrence, I] Cal-App. 231, 233 (1909). The moving party needs only prove excusable neglect
“by a small margin of evidence” and a display of prompt efforts to seek relief from default.
Shamblin v. Brattain, 44 Cal.3d 474, 478 (1988). California case law recognizes mental disability
as a valid basis for excusable neglect. Kesselman y. Kesselman (1963) 212 Cal.App.2d 196, 207-
208.
NOTICE OF MOTION AND Mt TIO}
'THORITIES IN SUPPORT OF DEFENDANT'Sope aaa
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In this case, Mr. Ferrera’s actions were reasonable and prudent under the circumstances.
First, Mr. Ferrera was not aware that the house had been sold to new owners until after the April
5, 2012 3-day notice to pay or quit had supposedly been posted. In addition, that notice was
directed to “MEI BIN and all tenants” and not to Mr. Ferrera specifically. Again, while
undersigned counsel nowunderstands that “MEI BIN” is an attempt to phonetically spell Mr.
Ferrera’s first name, that was not clear to Mr. Ferrera at the time. Moreover, Mr. Ferrera is a
monolingual Spanish speaker and was unable to read any of the documents supposedly posted at
the property.
As soon as Mr. Ferrera became aware of the eviction, he took immediate and
comprehensive steps to protect his rights. He contacted numerous agencies to find out what to do
and actively sought legal representation. When he was finally referred to the EDC, Mr. Ferrera
sought a stay immediately, which was granted May 8, 2012. After that, Mr. Ferrera was referred
to HAP for legal assistance and has been diligent in making appointments and following upon
the case. His actions clearly show that he is taking this matter incredibly seriously and that he
would have responded immediately to a summons and complaint. The Court should find that
these actions do qualify as “prompt efforts.” The Court should find that Mr. Ferrera has not been
grossly careless nor has he willfully slumbered on his rights. He has evinced a clear interest and
motivation to access justice.
For all these reasons, relief should be granted. The Motion has satisfied the legal standard
of “excusable neglect”. Mr. Ferrera should not be denied an opportunity to have his case
resolved on the merits. In the interests of justice, the Court should set aside default entered in this
action.
IV. IF THE DEFAULT AND DEFAULT JUDGMENT ARE VACATED, MR.
FERRERA HAS MERITORIOUS DEFENSES
If the motion to vacate the default and default judgment is granted, Mr. Ferrera
meritorious defenses, including: Plaintiff's demand for possession violates the local rent control
or eviction control ordinance, a breach of the warranty of habitability, the doctrine of unclean
hands, and that the complaint fails to state a proper cause of action. A true and correct copy of
his proposed demurrer is attached as Exhibit D. The court should allow Mr. Ferrera to present
evidence of his defenses at trial.
NOTICE OF MOTION AN. ) MOTI AUTHORITIES IN SUPPORT OF DEFENDANT'SVv. CONCLUSION
Because Mr. Ferrera has acted with duc diligence and prudence under the circumstances,
the default and default judgment entered in this case should be vacated and the writ of execution
recalled and quashed, and he should be allowed to file his responsive pleading.
Dated: May 14. 2012 FARELLA BRAUN + MARTEL LLP
By. he iyshe.
manda Hairston
Attorneys for Defendant
Melvin Ferrera
NOTICE OF MOTION AND MOTIO!
(UTHORITIES IN SUPPORT OF DEFENDANT'S
Preview
KOI SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet May-15-2012 11:46 am Case Number: CUD-12-641034 Filing Date: May-15-2012 11:45 Filed by: MICHAEL RAYRAY Juke Box: 001 Image: 03615102 MOTION FOR SET ASIDE/VACATE JUDGMENT SHEILA YEE VS. MEI BIN et al 001003615102 Instructions: Please place this sheet on top of the document to be scanned.28 Fass we «Na LF Thomas Mayhew (SBN 183539) tmayhew@fbm.com Amanda D. Hairston (SBN 251096) ahairston@fbm.com FARELLA BRAUN + MARTEL LLP 235 Montgomery Street, 17th Floor San Francisco, CA 94104 Telephone: (415) 954-4400 Facsimile: (415) 954-4480 Attorneys for Defendant Melvin Ferrera (sued as “MEI BIN”) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO SHEILA YEE, Case No. CUD-12-641034 Plaintiff, NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES IN vs. SUPPORT OF DEFENDANT'S MOTION TO VACATE DEFAULT AND MEI BIN, and DOES I through X. DEFAULT JUDGMENT AND RECALL THE WRIT OF POSSESSION Defendants. Date: Mayged, 2012 Time: 9:30 a.m. Location: Department 501 Judge: Hon. Ronald E. Quidachay NOTICE OF MOTION AND MOTION TO PLAINTIFF: PLEASE TAKE NOTICE that on May aaR 2012, Defendant Melvin Ferrera (sued as “MEI BIN”) will move and does hereby move to Vacate the Void Judgment under CCP §§ 473 (b) and (d). The hearing on Mr. Ferrera’s Motion will be held at 9:30 a.m., or as soon thereafter as the matter can be heard, in the Law and Motion Department of the above-entitled Superior Court, Dept. 501, 400 McAllister St., San Francisco, California. This motion is based upon California Code of Civil Procedure §§ 473 (b), (d), 1161B and 1161C, the Federal Protecting Tenants at Foreclosure Act of 2009 and the San Francisco Rent NOTICE OF MOTION AND MOT RECOV Uae Popes JTHORITIES IN SUPPORT OF DEFENDANT'S.1 | Stabilization and Arbitration Ordinance; this notice; the attached memorandum of points and 2 | authorities; all papers and records on file herein; and such evidence, both oral and documentary, 3 || as may be presented at the hearing of this motion. Dated: May 14, 2012 FARELLA BRAUN +MARTEL LLP by: Moshe anda Hairston 8 y Attorneys for Defendant 9 MELVIN FERRERA 10 | MEMORANDUM OF POINTS AND AUTHORITIES 11 Defendant Melvin Ferrera, by and through his attorneys. hereby submits this 12 | Memorandum of Points and Authorities in Support of his Motion to Vacate Judgment under 13 | CAL. CIV. PROC. CODE § 473 (b) and (d), as follows: l4q. STATEMENT OF FACTS 15 This is an unlawful detainer action based on a foreclosure sale. Mr, Ferrera has lived in 16 | the subject premises, 344 Holloway Avenue, San Francisco for approximately six years as a 17 | tenant of the previous foreclosed homeowner and the most recent purchaser of the property, 18 | plaintiff Sheila Yee. See Declaration of Melvin Ferrera in Support of Motion to Set Aside 19 | Default and Default (“Ferrera Decl.”), attached hereto as Exhibit A, 2,4. Mr. Ferrera isa 20 | Honduran immigrant and is a monolingual Spanish speaker who does not speak or read English. 21 | See Ferrera Decl. at 93. 22 } The complaint on file with the court notes that the property was purchased at a foreclosure 23 | sale and includes only a three day notice to quit addressed to “MEI BIN and All Tenants.” The 24 | three-day notice to pay or quit alleges that $871 is due for the period of March 30, 2012 to April 25 | 5, 2012. The Complaint and its exhibits are attached hereto as Exhibit B. Plaintiff alleges that 26 | the Defendants in this action are tenants with a written rental agreement with Plaintiff's 27 | predecessor in interest for a month-to-month tenancy but does not allege an agreed-upon due date 28 We oun cor -2- ‘ia’ || NOTICE OF MOTION AND MOTION: POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTSwe wa ve Sel LLP ncn Stes. th Floor sae CA 98104 WIS) 984-1 for the rent, Paragraph 6 of the Complaint also states that the written agreement is attached as Exhibit | to the Complaint, but no such Exhibit is attached. Mr. Ferrera has occupied various rooms in the subject property for approximately six years. See Ferrera Decl. at {4. At all times, Mr. Ferrera had an oral rental agreement with the previous owner, Carlos. See Ferrera Decl. at §5. Most recently, Mr. Ferrera had an oral agreement to pay $400 per month in rent. See Id. Mr. Ferrera has never been evicted before. See Id. at (6. Mr. Ferrera shares the property with eight other occupants, each of whom has a separate rental agreement. See Id. at $7. In this unlawful detainer action, Mr. Ferrera never received a copy of the April 5, 2012 3- day notice to pay rent or quit, the summons and complaint, or the pre-judgment claim form. See Ferrera Decl. at §8. The first time Mr. Ferrera was informed of the nature of this case was May 2, 2012 when he received from one of the other occupants of the property a Notice to Vacate from the Sherriff’s office. See Ferrera Decl. at (9. The Notice to Vacate did not have Mr. Ferrera’s name on it, it refers only to “MEI BIN.” While it is now presumed that “MEI BIN” is an attempt to phonetically spell Mr. Ferrera’s first name — Melvin — this was not clear to Mr. Ferrera who does not speak or read English. See Ferrera Decl. at §10. Plaintiff's proof of service for her Complaint also refers only to “MEI BIN.” Mr. Ferrera did not understand the Notice to Vacate. See Ferrera Decl. at 711. Despite his inability to read the English document, he made immediate and consistent efforts to address the situation, Over the next week, Mr. Ferrera contacted the Eviction Defense Collaborative who assisted him in filing an Application for Stay of Execution on May 8, 2012, which was granted by this Court. See Ferrera Decl. at 12. At that time, no attorney was appointed to assist Mr. Ferrera in filing a motion to vacate the default judgment against him. /d. After receiving the stay, he immediately contacted the Homeless Advocacy Project who put him in touch with his current counsel on May 10, 2012. See Ferrera Decl. at 13. The eviction proceeding has come as a surprise to Mr. Ferrera. See Ferrera Decl. at ql4. When the property was sold out of foreclosure in March 2012, Mr. Ferrera did not receive notice from the new owner Sheila Yee nor did he receive any instructions on how he should pay his rent. NOTICE OF MOTION AND MOTI eee pe ee eee ES ITIES IN SUPPORT OF DEFENDANT'Swe 5 See Ferrera Decl. at 15. Although plaintiff has attached a “final notice” dated March 30, 2012 to her complaint, that notice was never received by Mr. Ferrera. /d. Moreover, the final notice was addressed to “MET BIN and all Occupants” and is written in English. Mr. Ferrera has never communicated directly with Ms. Yee and has only spoken with her husband Louis Zhang. See Ferrera Decl. at 16. When Mr. Ferrera did learn that Ms. Yee owned the property, he and the other occupants of the house sent a letter on April 19, 2012 to Ms. Yee and Mr, Zhang explaining that there were numerous conditions that effect the habitability of the property including rat and cockroach infestations, no heat or functioning heat sources, non-functioning appliances, no electricity in some rooms, broken stairs, leaking roof, and water intrusion and mold. See Ferrera Decl. at 17. Had Mr, Ferrera received the 3-day notice to quit or the summons and complaint filed in this action, he would have acted diligently to respond. See Ferrera Decl. at 418. For the first time, after May 2, Mr. Ferrera learned that another occupant of the house — Orland Chavez — had filed a document in this action. See Ferrera Decl. at 19. il. THIS COURT SHOULD SET ASIDE THE VOID JUDGMENT IN THIS CASE BECAUSE PLAINTIFF HAS FAILED TO COMPLY WITH CODE OF CIVIL PROCEDURE §§ 1161b, 1161c, THE FEDERAL PROTECTING TENANTS AT FORECLOSURE ACT OF 2009 AND THE SAN FRANCISCO RENT STABILIZATION AND ARBITRATION ORDINANCE. The court has authority to void the judgment here under CCP § 473(d). The judgment is void because Plaintiff has not complied with the mandates of Code of Civil Procedure §§ 1161B, 1161C, the Protecting Tenants at Foreclosure Act of 2009 and the San Francisco Rent Stabilization and Arbitration Ordinance. A. THE COURT HAS AUTHORITY TO VACATE THE VOID JUDGMENT. The court should set aside the void judgment under the authority it has under Code of Civil Procedure §473 (d). Subsection (d) of CCP § 473 states, in relevant part: The court may... on motion of either party after notice to the other party, set aside any void judgment or order. B. PLAINTIFF HAS NOT GIVEN 60 DAYS WRITTEN NOTICE. Plaintiff has not complied with Code of Civil Procedure §1161b. CCP §1161b requires -4- )F MOTION AND MOTION; POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S131s) 95454400 ue un 60 days’ written notice to quit before a tenant may be removed from a property sold at foreclosure. The property was purchased at a foreclosure sale, as alleged in Plaintiff's complaint. Mr. Ferrera is a tenant. Plaintiff has not alleged any service of a sixty day notice and Mr. Ferrera has received no such notice. Section 1161b has not been complied with and so Mr. Ferrera cannot be removed from the property and the complaint cannot support a judgment. Cc. PLAINTIFF HAS NOT GIVEN THE REQUIRED NOTICE UNDER CCP § 1161C. Similarly, Plaintiff has not complied with CCP § 1161c. This section requires that the purchaser of a foreclosed property attach a cover sheet containing required language to any notice of termination of tenancy served on a tenant of the property. It states that: In the case of any foreclosure on a residential property, the immediate successor in interest in the property pursuant to the foreclosure shall attach a cover sheet, in the form as set forth in subdivision (b), to any notice of termination of tenancy served on a tenant of that property within the first year after the foreclosure sale. CCP §1161c. Plaintiff has made no allegations of compliance with §1161¢ and Mr. Ferrera has not received any such notice. None of the exceptions provided for in §1161c apply to this situation — no new rental agreement has been signed and Mr. Ferrera was a tenant well before foreclosure proceedings began. Therefore the judgment is invalid. D. PLAINTIFF HAS NOT GIVEN THE REQUISITE 90 DAY NOTICE. Plaintiff has also failed to comply with the Federal Protecting Tenants at Foreclosure Act of 2009, The Protecting Tenants in Foreclosure Act of 2009 requires: In the case of any foreclosure ... on any dwelling or residential real property...any immediate successor in interest in such property pursuant to the foreclosure shall assume such interest subject to— (1) the provision, by such successor in interest of a notice to vacate to any bona fide tenant at least 90 days before the effective date of such notice; and (2) the rights of any bona fide tenant, as of the date of such notice of foreclosure— 12 U.S.C. § 5220 note (emphasis added); The Protecting Tenants at Foreclosure Act of 2009, Pub. L. No. 111-22, tit, VII, § 702, 123 Stat.1632, 1660-62 (2009). Mr. Ferrara is a bona fide tenant of the unit at 344 Holloway Ave. Therefore, in order to evict Mr. Ferrera from the foreclosed property, under federal law Plaintiff was required to give them 90 days notice. The -5- NOTICE OF MOTION AND MOTION: POINTS AN MATICAL TA VPARP ATO Rast aut peewa 6 7 federal law does not give any exception to the minimum 90-day notice requirement, even for alleged nonpayment of rent. See PNMAC Mortgage y. Stanko (March 7, 2012 order from the Superior Court for the County of Los Angeles, Case No. 11004495, Hon. Lawrence H. Cho a copy is attached hereto as Exhibit C). Plaintiff did not provide the requisite 90-day notice, and in fact did not give Mr. Ferrera any notice at all. Therefore Plaintiff is barred by federal law from evicting Mr. Ferrera and the judgment is void. E. THE JUDGMENT IS ALSO VOID BECAUSE PLAINTIFF’S COMPLAINT IMPROPERLY SEEKS TO COLLECT RENT THAT WAS NOT YET DUE Paragraph 6 of the Complaint alleges that the Defendants have a written rental agreement and claims that a copy is attached, but no copy of the agreement was attached. No agreed upon due date for the rent is alleged. Civil Code section 1947 provides: When there is no usage or contract to the contrary, rents are payable at the termination of the holding when it does not exceed on year. If the holding is by the day, week, month, quarter or year, rent is payable at the termination of the respective period as it successively becomes due. Because Plaintiff has not alleged a “usage or contract to the contrary,” Mr. Ferrera’s monthly rent would thus be due at the end of each month in accordance with Civil Code section 1947. The three-day notice, however, which was allegedly served on April 5, 2012, seeks rent for the period March 30, 2012 to April 5, 2012. Since Plaintiff failed to allege a proper cause of action for the rent claimed in the three- day notice, the judgment in this action should never have been entered and must now be declared void. F. THE JUDGMENT IS VOID BECAUSE ONE OF THE OCCUPANTS OF THE PROPERTY FILED A PRE-JUDGMENT CLAIM THE DAY BEFORE THE JUDGMENT WAS ISSUED According to the Register of Actions in this case, a Pre-Judgment Claim of Right to Possession was filed by Orlando Chavez, another occupant of the property. Per CCP §1174.3, Mr. Chavez then had 5 days during which to file his responsive pleading. Mr. Chavez actually attempted to do so on May 1, 2012 but his filing was rejected by this Court because judgment had already been entered on April 27, 2012. Accordingly, the judgment should be vacated since it was issued in violation of CCP §1174.3. NOTICE OF MOTION AND MOTION Na ee ep ee ORT IN SUPPORT Of DEFENDANT'STS) 9st-4an I. INTHE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS DISCRETION TO GRANT RELIEF FROM JUDGMENT PURSUANT TO CCP 473(b) BECAUSE MR. FERRERA ACTED WITH REASONABLE DILIGENCE, PRUDENCE AND CARE UNDER THE CIRCUMSTANCES Alternatively, the court should vacate the judgment pursuant to Code of Civil Procedure § 473(b). Civil Procedure Section 473(b) states that the Court “may... relieve a party from a Judgment... taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.” The court reviews the actions of the moving party that seeks relief and inquires as to the whether the moving party has exercised “reasonable care and prudence” under the circumstances in its attempt to respond in the action. Elms y. Elms, 72 Cal.2d 508. 513 (1946). Justification for such relief need only be proven by a small margin of evidence and the display of prompt efforts made by the party seeking relief. Shamblin v. Brattain, 44 Cal.3d 474, 478 (1988). California courts have repeatedly emphasized the need for liberal construction of Code of Civil Procedure section 473 to ensure full and fair presentation of each case on its merits. All doubts should be resolved in favor of the moving party: “Section 473 of the Code of Civil Procedure is a remedial provision and is to be liberally construed so as to dispose of cases upon their merits... even in a case where the showing under section 473 is not strong, or where there is any doubt as to the setting aside of a default, such doubt should be resolved in favor of the application.” Van Dyke v. MacMillan (1958) 162 Cal.App.2d 594. Furthermore, appeilate courts are consistently more disposed to affirm orders that result in trial rather than those which hoid firm the default. Weitz v. Yanowsky (1966) 63 Cal.2d 849, Karlein y. Karlein, supra. In order to obtain relief. the moving party must carry the burden of proof. General Bank Nederland v. Eyes of the Beholder Ltd., 61 Cal.App.4th 1384, 1398 (1998). It must persuade the Court that it was not “grossly careless as to {its] own affairs”. Gillingham v. Lawrence, I] Cal-App. 231, 233 (1909). The moving party needs only prove excusable neglect “by a small margin of evidence” and a display of prompt efforts to seek relief from default. Shamblin v. Brattain, 44 Cal.3d 474, 478 (1988). California case law recognizes mental disability as a valid basis for excusable neglect. Kesselman y. Kesselman (1963) 212 Cal.App.2d 196, 207- 208. NOTICE OF MOTION AND Mt TIO} 'THORITIES IN SUPPORT OF DEFENDANT'Sope aaa 235 Mewyomers San Fronerss is} eda07 we 5 In this case, Mr. Ferrera’s actions were reasonable and prudent under the circumstances. First, Mr. Ferrera was not aware that the house had been sold to new owners until after the April 5, 2012 3-day notice to pay or quit had supposedly been posted. In addition, that notice was directed to “MEI BIN and all tenants” and not to Mr. Ferrera specifically. Again, while undersigned counsel nowunderstands that “MEI BIN” is an attempt to phonetically spell Mr. Ferrera’s first name, that was not clear to Mr. Ferrera at the time. Moreover, Mr. Ferrera is a monolingual Spanish speaker and was unable to read any of the documents supposedly posted at the property. As soon as Mr. Ferrera became aware of the eviction, he took immediate and comprehensive steps to protect his rights. He contacted numerous agencies to find out what to do and actively sought legal representation. When he was finally referred to the EDC, Mr. Ferrera sought a stay immediately, which was granted May 8, 2012. After that, Mr. Ferrera was referred to HAP for legal assistance and has been diligent in making appointments and following upon the case. His actions clearly show that he is taking this matter incredibly seriously and that he would have responded immediately to a summons and complaint. The Court should find that these actions do qualify as “prompt efforts.” The Court should find that Mr. Ferrera has not been grossly careless nor has he willfully slumbered on his rights. He has evinced a clear interest and motivation to access justice. For all these reasons, relief should be granted. The Motion has satisfied the legal standard of “excusable neglect”. Mr. Ferrera should not be denied an opportunity to have his case resolved on the merits. In the interests of justice, the Court should set aside default entered in this action. IV. IF THE DEFAULT AND DEFAULT JUDGMENT ARE VACATED, MR. FERRERA HAS MERITORIOUS DEFENSES If the motion to vacate the default and default judgment is granted, Mr. Ferrera meritorious defenses, including: Plaintiff's demand for possession violates the local rent control or eviction control ordinance, a breach of the warranty of habitability, the doctrine of unclean hands, and that the complaint fails to state a proper cause of action. A true and correct copy of his proposed demurrer is attached as Exhibit D. The court should allow Mr. Ferrera to present evidence of his defenses at trial. NOTICE OF MOTION AN. ) MOTI AUTHORITIES IN SUPPORT OF DEFENDANT'SVv. CONCLUSION Because Mr. Ferrera has acted with duc diligence and prudence under the circumstances, the default and default judgment entered in this case should be vacated and the writ of execution recalled and quashed, and he should be allowed to file his responsive pleading. Dated: May 14. 2012 FARELLA BRAUN + MARTEL LLP By. he iyshe. manda Hairston Attorneys for Defendant Melvin Ferrera NOTICE OF MOTION AND MOTIO! (UTHORITIES IN SUPPORT OF DEFENDANT'S