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G. SCOTT EMBLIDGE, State Bar No. 121613
EVAN M. ROSENBAUM, State Bar No. 310414
MOSCONE EMBLIDGE & RUBENS LLP
220 Montgomery Street, Suite 2100
San Francisco, CA 94104
Telephone: (415) 362-3599
Facsimile: (415) 362-2006
Email: emblidge@mosconelaw.com
rosenbaum@mosconelaw.com
Attorneys for Plaintiff Steven Edelman
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
STEVEN EDELMAN, Case No. 16CV296044
Plaintiff, NOTICE OF MOTION AND MOTION TO
SET ASIDE DISMISSAL (CCP § 473(b));
vs. MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF
JOHN NICHOLSON; and DOES 1-10, SCOTT EMBLIDGE
inclusive;
Defendants. Date: March 26, 2020
Time: 9:00 a.m.
Dept.: 20
Judge: Hon. Socrates P. Manoukian
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on Thursday, March 26, 2020 at 9:00 a.m., or as soon
thereafter as the matter may be heard, in Department 20 of the above-entitled court located at
191 N. First Street, San Jose, CA 95113, Plaintiff Steven Edelman will and does move the Court
for an order pursuant to Code Civ. Proc. § 473(b), setting aside the dismissal entered on or about
January 30, 2020. The requested relief is appropriate because the dismissal was granted based
on the mistake and inadvertence of plaintiff's attorney as declared in the attorney’s sworn
affidavit filed herewith.
PLAINTIFF MTN TO SET ASIDE DISMISSAL 1 Case No.: 16CV296044Cem nN DWH A
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This motion is based on this notice of motion, the memorandum of points and authorities,
the declaration of Scott Emblidge, the pleadings, documents, records, and files in this action, and
such oral and documentary evidence as may be presented at the hearing.
Dated: February 5, 2020 MOSCONE E IDGE & RUBENS LLP
By:
lidge
Attorneys for Plaintiff Steven Edelman
BACKGROUND
On October 3, 2016, at the request of Plaintiff Steven Edelman, this Court entered a
default against Defendant John Nicholson. After some back-and-forth with the Court and the
Clerk’s Office, on June 21, 2018, Plaintiff Steven Edelman filed a Request for Entry of Default
and Court Judgment. Since that time Plaintiff has been waiting for the Court to act on Plaintiff's
Request. Plaintiffs counsel has appeared at Court hearings on October 18, 2018, February 14,
2019, and August 8, 2018 to find out the status of Plaintiff's Request and has been informed at
each hearing that the Court is backlogged in processing such requests.
A similar hearing was scheduled on January 30, 2019. Lead counsel for Plaintiff was out
of town in depositions that day and, through mistake and inadvertence, failed to communicate to
his colleagues that one of them would need to cover the January 30 hearing in his absence.
MEMORANDUM OF POINTS AND AUTHORITIES
Code of Civil Procedure Section 473(b) states in relevant part:
[T]he 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 attorney’s sworn affidavit attesting to his
or her mistake, inadvertence, surprise, or neglect, vacate any . . .
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 the attorney’s mistake, inadvertence, surprise, or
neglect.
PLAINTIFF MTN TO SET ASIDE DISMISSAL 2 Case No.: 16CV2960440 Oe YW DH RF BW NY &
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“The purpose of section 473, subdivision (b) generally is ‘to promote the determination
of actions on their merits.’ [citations]. More specifically, section 473, subdivision (b)’s
mandatory relief provision has three purposes: (1) ‘to relieve the innocent client of the
consequences of the attorney’s fault’ [citations]; (2) ‘to place the burden on counsel’ [citation];
and (3) ‘to discourage additional litigation in the form of malpractice actions by the defaulted
client against the errant attorney’ [citation]. Martin Potts & Associates, Inc. v. Corsair, LLC
(2016) 244 Cal.App.4" 432, 439 (reviewing case law and holding the attorney’s sworn affidavit
need not include reasons).
In the present case, as stated in the accompanying swom affidavit of Scott Emblidge,
plaintiffs counsel failed to appear for a court-ordered case management conference through
mistake and inadvertence. That affidavit is sufficient for the court to order the mandatory relief
required by section 473(b). Id.
For the reasons stated in this Memorandum, the court should set aside the default and any
judgment thereon taken against defendant.
Dated: February 5, 2020
Attorneys for Plaintiff Steven Edelman
DECLARATION OF G. SCOTT EMBLIDGE
I, G. Scott Emblidge, declare as follows:
1. Tam a partner in the law firm of Moscone Emblidge & Rubens LLP, and lead
counsel of record to Plaintiff Steven Edelman, and I am licensed to practice law in the State of
California. I have personal knowledge of the facts stated below and could testify competently to
them if called as a witness to do so.
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2. On October 3, 2016, at our request, this Court entered a default against Defendant
John Nicholson. After some back-and-forth with the Court and the Clerk’s Office, on June 21,
2018, we filed a Request for Entry of Default and Court Judgment.
3. Since that time, we have been waiting for the Court to act on Plaintiff's Request.
Counsel from our firm has appeared at Court hearings on October 18, 2018, February 14, 2019,
and August 8, 2018 to find out the status of our Request and has been informed at each hearing
that the Court is backlogged in processing such requests.
4. A similar hearing was scheduled on January 30, 2020. I was out of town in
depositions that day and, through mistake and inadvertence, I failed to communicate to my
colleagues that one of them would need to cover the January 30 hearing in my absence.
I declare/certify under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed this Sth day of February 2020 at San F: , California.
G. Scott Emblidge
PLAINTIFF MTN TO SET ASIDE DISMISSAL 4 Case No.: 16CV296044Do eo YN DH BF WN
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PROOF OF SERVICE
Steven Edelman v. John Nicholson, et al.
Santa Clara County Superior Court
Case No. 16CV296044
I, Anna L. Hill, declare as follows:
Iam a citizen of the United States, over the age of eighteen years and not a party to the
within entitled action. On February 5, 2020, I served the attached:
e NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL;
MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF
SCOTT EMBLIDGE
on the interested party(ies) named below:
George H. Stern
P.O. Box 51590
Palo Alto, California 94303-0711
Tel: 650-851-5982
Fax: 650-851-5981
Email: GHStern@aol.com
Attorney for Defendant JOHN NICHOLSON
I served the attached document(s) in the manner indicated below:
X BY MAIL: | caused true and correct copy(ies) of the above documents to be placed and sealed
in envelope(s) addressed to the addressee(s) named above and, following ordinary business
practices, placed said envelope(s) at the Law Offices of Moscone Emblidge & Rubens LLP, 220
Montgomery, Suite 2100, San Francisco, California, 94104, for collection and mailing with the
United States Postal Service and there is delivery by the United States Post Office at said
address(es). In the ordinary course of business, correspondence placed for collection on a
particular day is deposited with the United States Postal Service that same day.
(1 BY PERSONAL SERVICE: I caused true and correct copies of the above documents to
be placed and sealed in envelope(s) addressed to the addressee(s) and I caused such
envelope(s) to be delivered by hand on the office(s) of the addressee(s).
(0 | BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via
facsimile machine. The fax number of the machine from which the document was
transmitted was (415) 362-2006. The fax number(s) of the machine(s) to which the
document(s) were transmitted are listed above. The fax transmission was reported as
complete and without error.
(1 BY FEDERAL EXPRESS OVERNIGHT: | caused true and correct copies of the above
documents to be placed and sealed in envelope(s) addressed to the addressee(s) named
above and, following ordinary business practices, placed said envelope(s) at the Law Offices
of Moscone Emblidge & Rubens LLP, 220 Montgomery Street, Suite 2100, San Francisco,
1
PROOF OF SERVICE Case No. 16 CV296044oO YN DH BF WN &
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California, 94104, for collection and mailing with Federal Express. I am informed that there
is delivery service by Federal Express at the address(es) of the addressee(s) named above.
In the ordinary course of business, correspondence placed for collection on a particular day
is deposited with Federal Express that same day.
BY ELECTRONIC MAIL: | caused true and correct copies of the above documents to
be sent via e-mail to the e-mail addressee(s) named above. I did not receive, within a
reasonable amount of time after the transmission, any electronic message other
indication that the transmission was unsuccessful.
BY CERTIFIED MAIL: I caused true and correct copy(ies) of the above documents to be
placed and sealed in envelope(s), certified mail, return receipt requested, addressed to the
addressee(s) named above and, following ordinary business practices, placed said envelope(s) at
the Law Offices of Moscone Emblidge & Rubens LLP, 220 Montgomery, Suite 2100, San
Francisco, California, 94104, for collection and mailing with the United States Postal Service and
there is delivery by the United States Post Office at said address(es). In the ordinary course of
business, correspondence placed for collection on a particular day is deposited with the United
States Postal Service that same day.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on February 5, 2020, at San Francisco, California.
fou elt
Anna L. Hill
PROOF OF SERVICE Case No. 16 CV296044
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0 OND WH BRB WN | YN YN NY NY NK NY NY Se He Be Be Be we Be ew Be oN AW BF Bw YH = SD we NY DH RF WH S| G. SCOTT EMBLIDGE, State Bar No. 121613 EVAN M. ROSENBAUM, State Bar No. 310414 MOSCONE EMBLIDGE & RUBENS LLP 220 Montgomery Street, Suite 2100 San Francisco, CA 94104 Telephone: (415) 362-3599 Facsimile: (415) 362-2006 Email: emblidge@mosconelaw.com rosenbaum@mosconelaw.com Attorneys for Plaintiff Steven Edelman SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA STEVEN EDELMAN, Case No. 16CV296044 Plaintiff, NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL (CCP § 473(b)); vs. MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN NICHOLSON; and DOES 1-10, SCOTT EMBLIDGE inclusive; Defendants. Date: March 26, 2020 Time: 9:00 a.m. Dept.: 20 Judge: Hon. Socrates P. Manoukian TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Thursday, March 26, 2020 at 9:00 a.m., or as soon thereafter as the matter may be heard, in Department 20 of the above-entitled court located at 191 N. First Street, San Jose, CA 95113, Plaintiff Steven Edelman will and does move the Court for an order pursuant to Code Civ. Proc. § 473(b), setting aside the dismissal entered on or about January 30, 2020. The requested relief is appropriate because the dismissal was granted based on the mistake and inadvertence of plaintiff's attorney as declared in the attorney’s sworn affidavit filed herewith. PLAINTIFF MTN TO SET ASIDE DISMISSAL 1 Case No.: 16CV296044Cem nN DWH A 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This motion is based on this notice of motion, the memorandum of points and authorities, the declaration of Scott Emblidge, the pleadings, documents, records, and files in this action, and such oral and documentary evidence as may be presented at the hearing. Dated: February 5, 2020 MOSCONE E IDGE & RUBENS LLP By: lidge Attorneys for Plaintiff Steven Edelman BACKGROUND On October 3, 2016, at the request of Plaintiff Steven Edelman, this Court entered a default against Defendant John Nicholson. After some back-and-forth with the Court and the Clerk’s Office, on June 21, 2018, Plaintiff Steven Edelman filed a Request for Entry of Default and Court Judgment. Since that time Plaintiff has been waiting for the Court to act on Plaintiff's Request. Plaintiffs counsel has appeared at Court hearings on October 18, 2018, February 14, 2019, and August 8, 2018 to find out the status of Plaintiff's Request and has been informed at each hearing that the Court is backlogged in processing such requests. A similar hearing was scheduled on January 30, 2019. Lead counsel for Plaintiff was out of town in depositions that day and, through mistake and inadvertence, failed to communicate to his colleagues that one of them would need to cover the January 30 hearing in his absence. MEMORANDUM OF POINTS AND AUTHORITIES Code of Civil Procedure Section 473(b) states in relevant part: [T]he 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 attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . 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 the attorney’s mistake, inadvertence, surprise, or neglect. PLAINTIFF MTN TO SET ASIDE DISMISSAL 2 Case No.: 16CV2960440 Oe YW DH RF BW NY & NON aa a a a a a BNURREBRNRSSCRRDTAEESR AS “The purpose of section 473, subdivision (b) generally is ‘to promote the determination of actions on their merits.’ [citations]. More specifically, section 473, subdivision (b)’s mandatory relief provision has three purposes: (1) ‘to relieve the innocent client of the consequences of the attorney’s fault’ [citations]; (2) ‘to place the burden on counsel’ [citation]; and (3) ‘to discourage additional litigation in the form of malpractice actions by the defaulted client against the errant attorney’ [citation]. Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4" 432, 439 (reviewing case law and holding the attorney’s sworn affidavit need not include reasons). In the present case, as stated in the accompanying swom affidavit of Scott Emblidge, plaintiffs counsel failed to appear for a court-ordered case management conference through mistake and inadvertence. That affidavit is sufficient for the court to order the mandatory relief required by section 473(b). Id. For the reasons stated in this Memorandum, the court should set aside the default and any judgment thereon taken against defendant. Dated: February 5, 2020 Attorneys for Plaintiff Steven Edelman DECLARATION OF G. SCOTT EMBLIDGE I, G. Scott Emblidge, declare as follows: 1. Tam a partner in the law firm of Moscone Emblidge & Rubens LLP, and lead counsel of record to Plaintiff Steven Edelman, and I am licensed to practice law in the State of California. I have personal knowledge of the facts stated below and could testify competently to them if called as a witness to do so. PLAINTIFF MTN TO SET ASIDE DISMISSAL 3 Case No.: 16CV296044bk WwW DY Co Oe IN DW 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2. On October 3, 2016, at our request, this Court entered a default against Defendant John Nicholson. After some back-and-forth with the Court and the Clerk’s Office, on June 21, 2018, we filed a Request for Entry of Default and Court Judgment. 3. Since that time, we have been waiting for the Court to act on Plaintiff's Request. Counsel from our firm has appeared at Court hearings on October 18, 2018, February 14, 2019, and August 8, 2018 to find out the status of our Request and has been informed at each hearing that the Court is backlogged in processing such requests. 4. A similar hearing was scheduled on January 30, 2020. I was out of town in depositions that day and, through mistake and inadvertence, I failed to communicate to my colleagues that one of them would need to cover the January 30 hearing in my absence. I declare/certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this Sth day of February 2020 at San F: , California. G. Scott Emblidge PLAINTIFF MTN TO SET ASIDE DISMISSAL 4 Case No.: 16CV296044Do eo YN DH BF WN Yb N NN NN KY Se Be Bw ew ewe ew ew ewe ew BRNRFRREBRRBGESEWRBESH AS PROOF OF SERVICE Steven Edelman v. John Nicholson, et al. Santa Clara County Superior Court Case No. 16CV296044 I, Anna L. Hill, declare as follows: Iam a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. On February 5, 2020, I served the attached: e NOTICE OF MOTION AND MOTION TO SET ASIDE DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SCOTT EMBLIDGE on the interested party(ies) named below: George H. Stern P.O. Box 51590 Palo Alto, California 94303-0711 Tel: 650-851-5982 Fax: 650-851-5981 Email: GHStern@aol.com Attorney for Defendant JOHN NICHOLSON I served the attached document(s) in the manner indicated below: X BY MAIL: | caused true and correct copy(ies) of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) named above and, following ordinary business practices, placed said envelope(s) at the Law Offices of Moscone Emblidge & Rubens LLP, 220 Montgomery, Suite 2100, San Francisco, California, 94104, for collection and mailing with the United States Postal Service and there is delivery by the United States Post Office at said address(es). In the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. (1 BY PERSONAL SERVICE: I caused true and correct copies of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) and I caused such envelope(s) to be delivered by hand on the office(s) of the addressee(s). (0 | BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via facsimile machine. The fax number of the machine from which the document was transmitted was (415) 362-2006. The fax number(s) of the machine(s) to which the document(s) were transmitted are listed above. The fax transmission was reported as complete and without error. (1 BY FEDERAL EXPRESS OVERNIGHT: | caused true and correct copies of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) named above and, following ordinary business practices, placed said envelope(s) at the Law Offices of Moscone Emblidge & Rubens LLP, 220 Montgomery Street, Suite 2100, San Francisco, 1 PROOF OF SERVICE Case No. 16 CV296044oO YN DH BF WN & RYN YN NY NY NR KY NY Be we Be ew ee eB Se oN DAW RB YBN FF Go we IA DH BF BY = California, 94104, for collection and mailing with Federal Express. I am informed that there is delivery service by Federal Express at the address(es) of the addressee(s) named above. In the ordinary course of business, correspondence placed for collection on a particular day is deposited with Federal Express that same day. BY ELECTRONIC MAIL: | caused true and correct copies of the above documents to be sent via e-mail to the e-mail addressee(s) named above. I did not receive, within a reasonable amount of time after the transmission, any electronic message other indication that the transmission was unsuccessful. BY CERTIFIED MAIL: I caused true and correct copy(ies) of the above documents to be placed and sealed in envelope(s), certified mail, return receipt requested, addressed to the addressee(s) named above and, following ordinary business practices, placed said envelope(s) at the Law Offices of Moscone Emblidge & Rubens LLP, 220 Montgomery, Suite 2100, San Francisco, California, 94104, for collection and mailing with the United States Postal Service and there is delivery by the United States Post Office at said address(es). In the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 5, 2020, at San Francisco, California. fou elt Anna L. Hill PROOF OF SERVICE Case No. 16 CV296044