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SUPERIOR COURT OF CALIFORNIA
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Nov-26-2012 11:17 am
Case Number: CUD-12-642163
Filing Date: Nov-26-2012 11:15
Filed by: ROSSALY DELAVEGA
Juke Box: 001 Image: 03850371
OPPOSITION
ECLIPSE PROPERTY MANAGEMENT INC. VS. WILFREDO N. UMANZOR et al
001003850371
Instructions:
Please place this sheet on top of the document to be scanned.Cem NIN DH FF WN
NY MN KRY NY NN NNN HY eee ee ewe Se eS
cI KDA BF WwNYH SK& Do weAI DH BF wWwNH HK SD
Andres Sanchez (SBN 237821)
M C HALL & ASSOCIATES
Attorneys and Counselors at Law
605 Market Street Suite 900
San Francisco CA 94105
Telephone: (415) 512-9865
Facsimile: (415) 495-7204
Attorneys for Plaintiff
ECLIPSE PROPERTY MANAGEMENT, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
LIMITED CIVIL JURISDICTION
ECLIPSE PROPERTY MANAGEMENT,
”
Case No.: CUD-12-642163
OPPOSITION TO DEFENDANT'S
Plaintiff, MOTION FOR RELIEF FROM
JUDGMENT
vs.
WILFREDO I. UMANZOR, et al., Counsel, Proposed Order]
Defendants. Date: November 27, 2012
Time: 9:30 a.m.
Dept. 501
)
)
)
)
} [Accompanying Documents: Declaration of
)
)
) Judge: Hon. Ronald E. Quidachay
I. INTRODUCTION
This case arises out of an unlawful detainer action that resulted in a Settlement
Agreement and Stipulation for Entry of Judgment or in the Alternative Dismissal (“Agreement”).
The Agreement authorized Plaintiff Eclipse Property Management, Inc. (“Plaintiff”) to obtain an
ex parte judgment in its favor upon any breach of the terms of the Agreement. The Agreement
also included a waiver of the right to seek relief from such judgment. Defendants Wilfredo I.
Umanzor and Maria Ortega (“Defendants”) previously defaulted on the terms of their obligation
to timely pay Plaintiff under the Agreement, and now Defendant Umanzor (“Defendant”) seeks
relief from a second, identical default, just a month after being warned by this Court that no
further breaches would be tolerated.
According to the terms of the Agreement, Defendants’ breach entitled Plaintiff to
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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immediate judgment. Defendants received timely notice of the ex parte motion for judgment but
failed to appear at the October 29, 2012 hearing. Yet Defendant seeks to vacate the judgment on
the grounds of mistake, surprise, and excusable neglect based on Defendant’s newly claimed
“Jimited” ability to speak and read English, unfair surprise due to insufficient notice, and lack of
prejudice to Plaintiff stemming from Defendant’s habitual defaults. Defendant then
unconvincingly reprises these claims in an attempt to challenge the Agreement itself, claiming
that the breach was non-material, notice was improper, and waiver was unintentional.
By this Opposition, Plaintiff seeks the denial of the motion on the following grounds: 1)
Defendant has failed to prove that he did not receive proper notice of the date, time and place of
the ex parte hearing; 2) Defendant Umanzor cannot establish surprise, or any other basis for
relief under CCP § 473(b); 3) Defendant has waived the right to seek relief from a properly
noticed judgment; and 4) Plaintiff has been prejudiced by Defendant’s defaults, and will continue
to suffer prejudice in the future if Defendant remains a tenant. Plaintiff also asserts that
Defendant’s grounds for contractual relief from the Agreement are without merit because: 1)
Defendant’s notice of motion fails to indicate any relief sought on an equitable ground; 2) the
breach was material under the express terms of the Agreement; 3) notice was properly given
pursuant to both California Rules of Court and the terms of the Agreement; and 4) Defendant
fails to establish that the waiver is inapplicable due to limited English proficiency by the
requisite clear and convincing evidence standard.
Il. STATEMENT OF FACTS
This is an unlawful detainer case based on a three-day notice to pay rent or quit, after
Defendants failed to pay their July and August rent. Defendant represented himself during the
unlawful detainer proceeding, including filing an Answer on August 8, 2012. Thereafter,
Defendants negotiated a Settlement Agreement with Plaintiff and their counsel, which, among
other things, required Defendants to timely make rental payments and reimbursement of
unlawful detainer costs payments to Plaintiff. This is Defendants’ second breach of the
Agreement because they again failed to timely and properly make the $158.21 monthly cost
payment.
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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The Terms of The Settlement Agreement
On August 27, 2012 Plaintiff and Defendant entered into a Settlement Agreement and
Stipulation for Entry of Judgment or in the Alternative Dismissal (“Agreement”). The relevant
terms of the Agreement are as follows: “Each provision of the Agreement is material, and time
is of the essence. This provision shall be interpreted in its strictest sense, with any failure to
perform any requirement set forth herein or before the date upon which performance is due, even
if performance is late by only a single day, resulting in the relief upon default set forth above
without regard to the relative hardship to the Parties and substantial performance shall not be
sufficient.” [Declaration of Sanchez, Ex. 1 Agreement, § 1 (emphasis added).] “If Defendants
fail to perform any duty or obligation contained in this Agreement, upon any such failure: a)
Plaintiff shall be entitled to immediate judgment for the full relief set forth in the complaint.”
[Id. at §3.] Plaintiff may obtain such judgment by ex parte application to the court ... Plaintiff's
attorney shall notify Defendants or Defendants' attorney by telephone of such application at least
24 hours prior to the hearing.“ [/d. at § 3(b).] Defendant waived the right to move to set aside or
for relief from any judgment taken against him resulting from any breach of the Agreement. [/d.
at ¥ 3(e).]
By the terms of the Agreement, Defendant was to make all payments directly to Eclipse
Property Management at their offices in Alameda, California. A payment of $1,720 was due by
the 5" of each month. [/d. at J 1(b).] Defendant also agreed to make a second, smaller monthly
payment of $158.21 directly to Eclipse Property Management by the 20" of each month. [d. at §
1(c).]
The First Breach
Defendants failed to make the first $158.21 payment due on September 20, 2012.
Defendant claimed he had forgotten to make the payment. Plaintiffs counsel informed
Defendants that they had breached the Agreement, and gave telephonic notice that he would seek
judgment ex parte on September 24, 2012. Defendant appeared at the hearing and was ordered
to make payment to counsel, but Defendant decided he would rather pay by money order later
that day. The Court warned Defendant not to breach the Agreement again and that judgment
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
3would enter on any future breach. Accordingly, after the hearing, Defendant asked counsel
where he should deliver the payment, and was told to consult the Agreement. Defendant, who
now claims he did not understand the Agreement, did not seek further clarification, or ask for a
Spanish translation of the Agreement. Instead, he delivered the payment to counsel’s office.
The Second Breach
On Friday, October 19, 2012, at the end of the day, Defendant, without notice or
permission, delivered his $158.21 payment not to Plaintiff as specified by the Agreement but to
Plaintiffs counsel’s office. On Monday, October 22, 2012, Plaintiffs counsel called Defendant
and informed him the money order had been returned, that Defendant had an extension of time
until October 26, 2012 to perform as agreed and to deliver the payment to Plaintiff, or Plaintiffs
counsel would seek judgment ex parte on October 29, 2012. On that same date (October 22,
2012) the money order was returned to Defendant via certified mail along with a letter
explaining that he must make payment as specified in the Agreement and specifying the proper
address for delivery. During that call, Defendant cursed at counsel completely and effectively in
English.
Defendant’s Failure to Appear On October 29, 2012
Pursuant to California Rules of Court and the notice provision of the Agreement,
Defendant was informed on October 22, 2012, of the time and place of the ex parte application
by telephone message. [Sanchez Decl. Ex. 2.] Defendant did not appear. Defendant did not
contact Plaintiffs counsel at any time between October 22, 2012 and the hearing date of October
29, 2012. On November 13, 2012 Defendant obtained counsel. On November 14, 2012,
Defendant filed the instant motion to vacate the judgment based primarily on claims that he did
not receive proper notice of the ex parte hearing due to surprise.
Til. ARGUMENT
a. Notice of the October 29, 2012 Ex Parte Hearing Was Properly Given
Under California Rules of Court Rule 3.1203(a) And The Agreement.
CRC Rule 3.1203(a) provides: “A party seeking an ex parte order must notify all parties
no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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exceptional circumstances that justify a shorter time for notice.” The Agreement provides that
notice must be given “at least 24 hours prior to the application.” [Sanchez Decl. Ex. 1
Agreement §1(c).] Here, Plaintiff's counsel telephonically informed Defendants of the October
29, 2012 ex parte appearance on October 22, 2012, in accordance with the California Rules of
Court! [Sanchez Dec. Ex. 2.] As counsel had given identical telephonic notice to Defendants
just one month before, on September 21, 2012 which defendant understood and appeared for,
counsel had no reason to believe that telephonic notice was insufficient to advise Defendant of
the time and place of hearing.
The moving party bears the burden of proving that he or she is entitled to relief under
CCP § 473(b) by a preponderance of the evidence. As discussed in detail below, Defendant’s
claims to have misunderstood properly given notice fails because after learning he had
misunderstood the hearing date, he took no steps to correct his misunderstanding for eleven days,
despite knowing that he had breached the Agreement and that a hearing had been scheduled to
take judgment against him.
b. Defendant Is Not Entitled To Relief Under CCP § 473(b) Based on
He Failed To Exercise Ordinary Prudeace By Taking No Further Actes
For Eleven Days, Despite Knowing That Plaintiff Tntended To Seek Entry
of Judgment Against Him.
The term “surprise” refers to “some condition or situation in which a party ... is
unexpectedly placed to his injury, without any default or negligence of his own, which ordinary
prudence could not have guarded against.” [Credit Managers Ass'n of So. Calif. v. National
Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173, emphasis added; see also,
Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.] Defendant’s claim of surprise based on
misunderstanding the date of the hearing is without merit. Even if the Court credits Defendant’s
claim that the true date of the hearing was a surprise, the relevant analysis is whether Defendant
could have guarded against being taken by surprise through the exercise of ordinary prudence,
" Defendant claims that Plaintiff's counsel “knew that [Defendant] did not understand English well, but did little to
insure that [he] had sufficient notice” of the October ex parte. This is not supported by any evidence in the record,
is improper to the extent is alleges intent to prevent Defendant from appearing, and should thus be disregarded.
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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and without any contributing default or negligence on his part. Defendant has entirely failed to
meet this burden.
Defendant knew that he had breached the Agreement, and that the breach would result in
Plaintiff seeking judgment against him, because less than one month prior to the instant default,
Defendant breached the Agreement and Plaintiff sought entry of judgment against him for failing
to timely make the $158.21 payment. Defendant received the identical telephonic notification of
the September 24, 2012 ex parte hearing from Plaintiffs counsel. [Umanzor Dec. § 13.]
Defendant was able to understand the date and time of the hearing, and appeared as directed.
(Umanzor Dec. J 13.] This Court warned Defendant of the consequences of another breach.
Based on recent experience alone, Defendant did not have any reasonable basis to conclude that
the October hearing had been cancelled when he appeared on the wrong day. More importantly,
a prudent person could have easily guarded against missing the hearing by simply contacting
Plaintiff's counsel to ask the correct date of the hearing. Defendant did nothing for eleven full
days after learning of his mistake, and therefore is not entitled to relief based on his claim of
surprise, because a reasonable person facing eviction would not fail to act. Defendant, having
just gone through an unlawful detainer proceeding and an ex parte hearing, especially knew the
consequences of failing to timely act. Thus, he is solely responsible for missing the hearing.
* Pails = Defendant Admits He Understood That Counsel Told: Hint To
Consult The Agreement For Payment Instructions, Defendant Had 25
Days To Do So Before Making The October Payment, But Did Nothing.
For a mistake of fact to justify relief, the party seeking relief must have understood the
facts to be other than they are. [Gilio v. Campbell (1952) 114 Cal.App.2d Supp. 853, 857.] That
understanding must also be excusable. [Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301.] To
be excusable, the mistake must be one that might have been made by a reasonably prudent
person in the same circumstances. [Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.]
In other words, the default could not have been avoided through the exercise of ordinary care.
{Ubid.| Again, Defendant cannot meet that burden.
Defendant concedes in his own papers that his mistake was not reasonable and most
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
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certainly could have been avoided through the exercise of ordinary care. Defendant forgot to
make the September payment on time, and Plaintiff moved for judgment. On September 24,
2012, Plaintiff's counsel directed Defendant to make the $158.21 payment pursuant to the
Agreement; Defendant understood what counsel told him, but Defendant did not comply.
[Umanzor Dec. § 14.] Despite claiming inability to understand the Agreement’s payment
instructions, Defendant never sought assistance in interpreting the instructions from anyone.
(Umanzor Dec. § 14-15.] No reasonable person facing eviction would ignore an instruction to
consult the Agreement for information on where to make the next payment. Rather, assuming
arguendo that Defendant did not understand the Agreement, a reasonable person in Defendant’s
position would have sought help from someone who could explain the Agreement, so he would
be certain of where to make his next payment. On September 24, 2012, Defendant was given 25
days to do just that, but instead chose to do nothing. [Umanzor Dec. {J 14-15.]
Further, Defendant’s actions were not the result of a language barrier, as Defendant states
he knew from the time he made the September payment that: 1) the next payment was due on
October 20"; 2) the Agreement provided specific instructions on how to make it; and 3) he had
been directed to consult the Agreement for instructions on where to make his payment, but
decided to do what he had done last time anyway. [Umanzor Dec. {{ 14-15.] Defendant had also
been advised, by this Court, that he would not be relieved of further breaches of the Agreement.
{Sanchez Dec. § 12.] Defendant’s failure to timely deliver the October 19" payment to the proper
party and place per the Agreement, which resulted in the instant judgment, is therefore not
excusable.
Last, it is inescapable that despite his claimed language limitations, Defendant knew
something was wrong with his October payment because he received a call from counsel on
October 22, 2012 stating that there would be another hearing. Having just attended a similar
hearing less than 20 days prior, Defendant surely understood what was at stake. Yet, with so
much on the line, Defendant unreasonably chose to take no action after appearing on October 26,
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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2012, rather than seek any help whatsoever’. Had Defendant done anything, he would have
learned that the hearing was set for October 29, 2012. [Sanchez Dec. § 18.] For this reason, the
claim that Defendant did not receive the certified letter from counsel is a red herring. In his
moving papers, Defendant admits that the certified letter was properly mailed on October 22,
2012, that notice of the certified letter was duly delivered, but that he failed to collect the
certified letter. (Defendant’s Memorandum of Points and Authorities P. 5, Line 18).
Furthermore, after Defendant mistakenly attended court on October 26", he unreasonably
continued to do nothing until the fifth of November — a total of eleven days.
d. Plaintiff Will Be Prejudiced If The Judgment Is Set Aside.
Defendant has repeatedly breached his obligations to pay rent, resulting in the unlawful
detainer judgment, and his obligations to pay for the costs of that judgment pursuant to the
Agreement. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740 is
unavailing because the prejudice to Plaintiff far exceeds the receiving the “advantage of default.”
But here, Defendant has twice asked the Court to relieve him of his defaults, forcing Plaintiff to
engage in further litigation and incur further costs far in excess of the two $158.21 payments
Defendant failed to timely tender. Moreover, the San Francisco Rent Ordinance mandates that
landlords should not bear the burden of maintaining serial defaulters like Defendant. [See,
S.F.R.O. § 37.9(a)(1)(B): just cause for eviction for habitual late payment, as here, that this is
not acceptable.] Accordingly, Plaintiff will be prejudiced if the judgment is set aside.
e. Defendant’s Argument That the Judgment Should be Set Aside Based on
the Allegation that the Breach is Immaterial Must Be Disregarded as
Defendant’s Notice of Motion Fails to Specify That Ground for Relief.
It is the consistent policy of this court that only grounds specified in the Notice of
Motion will be considered. Here, Defendant’s Notice of Motion specifies that he is seeking relief
under CCP 473(b) (mistake, inadvertence, surprise or excusable neglect), but nowhere does he
notice that he is seeking to set aside the judgment based on equitable grounds such as immaterial
breach. As such Defendant’s argument under paragraph B(1) of his Memorandum of Points and
> When given notice of the October 29, 2012 hearing, Defendant cursed at counsel in thorough, explicit, and
colloquial English such that counsel was unable to discern whether Defendant intended to appear. [Sanchez Dec. {.]
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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Authorities must be disregarded.
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f. Assuming Arguendo that The Court Will Entertain Defendant’s
Equitable Argument Despite the Absence of That Ground From His
Notice of Motion, Defendant Is Barred From Seeking Relief From The
Agreement Because The Breach Was Material And Supported By
Valuable Consideration That Allowed Defendant To Maintain Possession
Of The Rent-Controlled Premises.
Defendant's breach of the Agreement is unquestionably material. The Agreement made
timely delivery of each payment, to the appropriate party and at the specified location, a
material obligation. [Sanchez Decl. Ex. 1 § 1 (“Each provision of the Agreement is considered
material by the Parties...Moreover, time is of the essence in the performance of all obligations
under this Agreement. This provision shall be interpreted in its strictest sense, with any failure to
perform any requirement set forth herein on or before the date upon which performance is due,
even if performance is late by only a single day, resulting in the relief upon default set forth
above without regard to the relative hardship to the Parties and substantial performance shall not
be sufficient.”).]
The law in California is clear that “[w]hen time is made of the essence of a contract, a
failure to perform within the time specified is a material breach of the contract.” [U.S. Hertz, Inc.
v. Niobrara Farms (1974) 41 Cal.App.3d 68, 78; see also Associated Lathing & Plastering Co. v.
Dunn, Inc. (1955) 135 Cal.App.2d 40, 50 (holding that trial court was justified in considering
that “contract provided that time was of the essence” in determining materiality of breach).
Under the express terms of the Agreement, Defendant's second failure to deliver the $158.21
monthly payment by the 20" of the month was a material breach.
To the extent Defendant argues that the breach was waived, he is incorrect. Defendant
was ordered to pay the September payment to Plaintiff's counsel during the hearing, but
Defendant refused, stating he wanted a money order receipt. On his way out of the courtroom,
Defendant asked counsel where he should make the payment and was told to review the
Agreement. Thereafter, when Defendant attempted to make the October payment to counsel at
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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his office, it was immediately rejected. Nor should the Court credit the claim that it would be
“cruel and oppressive” to enforce the Agreement. Defendant has received the full benefit of the
Agreement, as he has retained occupancy of the rent-controlled unit in exchange for his promise
to strictly comply with his Agreement to make his payments on time for one year. Yet
Defendant has already breached that promise twice in the first two months since the Agreement
was executed.
g. Defendant Cannot Meet The Burden To Prove Waiver By Clear And
Convincing Evidence.
A party may expressly waive the right to appeal from any judgment. [Elliott & Ten Eyck
Partnership v. City of Long Beach (1997) 57 Cal.App.4th 495, 504.] “The burden is on the party
claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the
matter to speculation." [DRG/Beverly Hills, Ltd. y. Chopstix Dim Sum Cafe & Takeout III, Ltd.
(1994) 30 Cal.App.4th 54, 35 Cal.Rptr.2d 515.] Defendant has not credibly established by clear
and convincing evidence that there exists a language barrier that prevented him from
understanding the provisions of the Agreement he negotiated in exchange for retention of his
rent-controlled tenancy.
All of Defendant’s arguments stem from his claim that he has a “limited” ability to speak,
read, or understand English. [Umanzor Dec. J 6.] Yet, Defendant participated in every aspect of
this case without ever disclosing a language barrier. He negotiated his lease in English without
asking for a Spanish language translation. Defendant adequately represented himself in the
unlawful detainer proceeding by filing a verified Answer on his own behalf and entering into an
agreement that allowed him to retain possession of the Premises. He extensively negotiated the
terms of the settlement, and signed the Agreement without ever disclosing a language barrier,
asking for time to seek assistance, or for a Spanish translation of the document. Defendant also
accepted telephonic notification of the September 24" ex parte hearing from Plaintiff's counsel
without difficulty. He appeared, represented himself, argued before the court and prevailed, all
without ever disclosing difficulty understanding English, requesting an interpreter, or indicating
in any way that he could not understand the proceedings. Defendant also verified the Declaration
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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supporting the instant motion to vacate, which is artfully worded and contains lengthy
contractual passages. Defendant did not state that he received help in drafting or comprehending
the contents of the declaration. This verification alone proves Defendant’s acumen in
understanding English is sufficient.
The “evidence” proffered by Defendant to establish lack of English proficiency is
insufficient to establish unintentional waiver. Defendant’s claim he was unable to understand
counsel’s notice of the October 29" ex parte hearing is belied by the fact that Defendant had no
difficulties whatsoever receiving the identical form of notice on September 22, 2012.
Defendant’s other claim, that he simply could not parse the complex instructions in the
Agreement directing him where and how to make payment also are unsupported. The
Agreement contains identical provisions for making the rent payment and the $158.21 payment:
“Payment shall be made by cashier’s check or money order made payable to Mission Park
Building C/O Eclipse Property Management, Inc., at 1001 Marina Village Parkway # 115,
Alameda, CA 94501.” [Sanchez Decl. Ex.1, Agreement, §(1)(c).] Defendant had no difficulty
tendering his September 5" and October 5" to the correct party and at the correct address
pursuant to the Agreement, thus his failure to do so in regards to his October 20" payment is
wholly due to his intentional decision to disregard the terms of the Agreement.
h. Defendant Waived The Right To Seek Relief From Judgment Granted
Upon A Properly Noticed Motion.
The Agreement provides that Plaintiff may move for judgment on an ex parte basis so
long as proper notice has been given. Defendant waived the right to move for relief from any
judgment entered after a properly noticed motion. The evidence establishes that notice was
properly given pursuant to California Rules of Court and l(c) of the Agreement itself.
Defendant personally acknowledged he received notice, but claims to have misunderstood the
date of the hearing. Yet, Defendant knew there was a hearing, as he appeared on October 26,
2012 at the appointed time and place. When he turned out to be mistaken, Defendant did nothing
to ascertain the true date of the hearing, despite having the time and ability to do so on October
26, 2012. Consequently, Defendant’s right to move for relief is waived.
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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Iv. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests the Court DENY Defendant’s
motion.
Respectfully submitted,
Dated: November 26, 2012 MC HALL & ASSOCIATES oo
a
ANDRES SANCHEZ
Attorneys for Plaintiff
ECLIPSE PROPERTY
MANAGEMENT, INC.
By:
PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Case No. CUD-12-642163
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PROOF OF SERVICE - CIVIL
I declare that I am a citizen of the United States, over the age of eighteen years and not
a party to the within cause; my business address is 605 Market Street, Suite 900, San
Francisco, California 94105. On November 26, 2012 I served a true copy of the foregoing
OPPOSITION TO DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT on
the interested parties in said action:
Benjamin C. Geiger
Farella Braun + Martel LLP
235 Montgomery St 17th Fl
San Francisco CA 94104
in the manner marked below:
[]
U]
[xX]
C]
BY UNITED STATES MAIL: | caused a true and correct copy of the above
document, by following ordinary business practices, to be placed and sealed in an
envelope addressed to the addressee and for collection and mailing with the United
States Postal Service in the ordinary course of business, correspondence placed for
collection on a particular day, which is deposited with the United States Postal Service
that same day.
BY OVERNIGHT MAIL: I caused a true and correct copy of the above document,
by following ordinary business practices, to be placed and sealed in an envelope
addressed to the addressee and for collection and mailing with Federal Express in the
ordinary course of business, correspondence placed for collection on a particular day,
which is deposited with Federal Express that same day.
BY MESSENGER SERVICE: | caused a true and correct copy of the above
document to be delivered to the parties in such cause by hand delivery by placing same
in a sealed envelope addressed to the addressee and providing it to a professional
messenger service for service.
BY FACSIMILE TRANSMISSION: I caused a copy of such document to be
transmitted via facsimile machine. The fax number of the machine to which the
document was transmitted is listed above. The facsimile transmission was reported as
complete and without error.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed at San Francisco, California on November 26, 2012.
(LB
Jennifer B
I lennifer Bearss
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fe IN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Nov-26-2012 11:17 am Case Number: CUD-12-642163 Filing Date: Nov-26-2012 11:15 Filed by: ROSSALY DELAVEGA Juke Box: 001 Image: 03850371 OPPOSITION ECLIPSE PROPERTY MANAGEMENT INC. VS. WILFREDO N. UMANZOR et al 001003850371 Instructions: Please place this sheet on top of the document to be scanned.Cem NIN DH FF WN NY MN KRY NY NN NNN HY eee ee ewe Se eS cI KDA BF WwNYH SK& Do weAI DH BF wWwNH HK SD Andres Sanchez (SBN 237821) M C HALL & ASSOCIATES Attorneys and Counselors at Law 605 Market Street Suite 900 San Francisco CA 94105 Telephone: (415) 512-9865 Facsimile: (415) 495-7204 Attorneys for Plaintiff ECLIPSE PROPERTY MANAGEMENT, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO LIMITED CIVIL JURISDICTION ECLIPSE PROPERTY MANAGEMENT, ” Case No.: CUD-12-642163 OPPOSITION TO DEFENDANT'S Plaintiff, MOTION FOR RELIEF FROM JUDGMENT vs. WILFREDO I. UMANZOR, et al., Counsel, Proposed Order] Defendants. Date: November 27, 2012 Time: 9:30 a.m. Dept. 501 ) ) ) ) } [Accompanying Documents: Declaration of ) ) ) Judge: Hon. Ronald E. Quidachay I. INTRODUCTION This case arises out of an unlawful detainer action that resulted in a Settlement Agreement and Stipulation for Entry of Judgment or in the Alternative Dismissal (“Agreement”). The Agreement authorized Plaintiff Eclipse Property Management, Inc. (“Plaintiff”) to obtain an ex parte judgment in its favor upon any breach of the terms of the Agreement. The Agreement also included a waiver of the right to seek relief from such judgment. Defendants Wilfredo I. Umanzor and Maria Ortega (“Defendants”) previously defaulted on the terms of their obligation to timely pay Plaintiff under the Agreement, and now Defendant Umanzor (“Defendant”) seeks relief from a second, identical default, just a month after being warned by this Court that no further breaches would be tolerated. According to the terms of the Agreement, Defendants’ breach entitled Plaintiff to PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 1CoO eI DH BF WN immediate judgment. Defendants received timely notice of the ex parte motion for judgment but failed to appear at the October 29, 2012 hearing. Yet Defendant seeks to vacate the judgment on the grounds of mistake, surprise, and excusable neglect based on Defendant’s newly claimed “Jimited” ability to speak and read English, unfair surprise due to insufficient notice, and lack of prejudice to Plaintiff stemming from Defendant’s habitual defaults. Defendant then unconvincingly reprises these claims in an attempt to challenge the Agreement itself, claiming that the breach was non-material, notice was improper, and waiver was unintentional. By this Opposition, Plaintiff seeks the denial of the motion on the following grounds: 1) Defendant has failed to prove that he did not receive proper notice of the date, time and place of the ex parte hearing; 2) Defendant Umanzor cannot establish surprise, or any other basis for relief under CCP § 473(b); 3) Defendant has waived the right to seek relief from a properly noticed judgment; and 4) Plaintiff has been prejudiced by Defendant’s defaults, and will continue to suffer prejudice in the future if Defendant remains a tenant. Plaintiff also asserts that Defendant’s grounds for contractual relief from the Agreement are without merit because: 1) Defendant’s notice of motion fails to indicate any relief sought on an equitable ground; 2) the breach was material under the express terms of the Agreement; 3) notice was properly given pursuant to both California Rules of Court and the terms of the Agreement; and 4) Defendant fails to establish that the waiver is inapplicable due to limited English proficiency by the requisite clear and convincing evidence standard. Il. STATEMENT OF FACTS This is an unlawful detainer case based on a three-day notice to pay rent or quit, after Defendants failed to pay their July and August rent. Defendant represented himself during the unlawful detainer proceeding, including filing an Answer on August 8, 2012. Thereafter, Defendants negotiated a Settlement Agreement with Plaintiff and their counsel, which, among other things, required Defendants to timely make rental payments and reimbursement of unlawful detainer costs payments to Plaintiff. This is Defendants’ second breach of the Agreement because they again failed to timely and properly make the $158.21 monthly cost payment. PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 2CoN Dn FF WBN = NNN NY NY N WH NN eee Se Be Be Be ee cCN AA BF wWwH KF DO we ADH FF WN KF SO The Terms of The Settlement Agreement On August 27, 2012 Plaintiff and Defendant entered into a Settlement Agreement and Stipulation for Entry of Judgment or in the Alternative Dismissal (“Agreement”). The relevant terms of the Agreement are as follows: “Each provision of the Agreement is material, and time is of the essence. This provision shall be interpreted in its strictest sense, with any failure to perform any requirement set forth herein or before the date upon which performance is due, even if performance is late by only a single day, resulting in the relief upon default set forth above without regard to the relative hardship to the Parties and substantial performance shall not be sufficient.” [Declaration of Sanchez, Ex. 1 Agreement, § 1 (emphasis added).] “If Defendants fail to perform any duty or obligation contained in this Agreement, upon any such failure: a) Plaintiff shall be entitled to immediate judgment for the full relief set forth in the complaint.” [Id. at §3.] Plaintiff may obtain such judgment by ex parte application to the court ... Plaintiff's attorney shall notify Defendants or Defendants' attorney by telephone of such application at least 24 hours prior to the hearing.“ [/d. at § 3(b).] Defendant waived the right to move to set aside or for relief from any judgment taken against him resulting from any breach of the Agreement. [/d. at ¥ 3(e).] By the terms of the Agreement, Defendant was to make all payments directly to Eclipse Property Management at their offices in Alameda, California. A payment of $1,720 was due by the 5" of each month. [/d. at J 1(b).] Defendant also agreed to make a second, smaller monthly payment of $158.21 directly to Eclipse Property Management by the 20" of each month. [d. at § 1(c).] The First Breach Defendants failed to make the first $158.21 payment due on September 20, 2012. Defendant claimed he had forgotten to make the payment. Plaintiffs counsel informed Defendants that they had breached the Agreement, and gave telephonic notice that he would seek judgment ex parte on September 24, 2012. Defendant appeared at the hearing and was ordered to make payment to counsel, but Defendant decided he would rather pay by money order later that day. The Court warned Defendant not to breach the Agreement again and that judgment PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 3would enter on any future breach. Accordingly, after the hearing, Defendant asked counsel where he should deliver the payment, and was told to consult the Agreement. Defendant, who now claims he did not understand the Agreement, did not seek further clarification, or ask for a Spanish translation of the Agreement. Instead, he delivered the payment to counsel’s office. The Second Breach On Friday, October 19, 2012, at the end of the day, Defendant, without notice or permission, delivered his $158.21 payment not to Plaintiff as specified by the Agreement but to Plaintiffs counsel’s office. On Monday, October 22, 2012, Plaintiffs counsel called Defendant and informed him the money order had been returned, that Defendant had an extension of time until October 26, 2012 to perform as agreed and to deliver the payment to Plaintiff, or Plaintiffs counsel would seek judgment ex parte on October 29, 2012. On that same date (October 22, 2012) the money order was returned to Defendant via certified mail along with a letter explaining that he must make payment as specified in the Agreement and specifying the proper address for delivery. During that call, Defendant cursed at counsel completely and effectively in English. Defendant’s Failure to Appear On October 29, 2012 Pursuant to California Rules of Court and the notice provision of the Agreement, Defendant was informed on October 22, 2012, of the time and place of the ex parte application by telephone message. [Sanchez Decl. Ex. 2.] Defendant did not appear. Defendant did not contact Plaintiffs counsel at any time between October 22, 2012 and the hearing date of October 29, 2012. On November 13, 2012 Defendant obtained counsel. On November 14, 2012, Defendant filed the instant motion to vacate the judgment based primarily on claims that he did not receive proper notice of the ex parte hearing due to surprise. Til. ARGUMENT a. Notice of the October 29, 2012 Ex Parte Hearing Was Properly Given Under California Rules of Court Rule 3.1203(a) And The Agreement. CRC Rule 3.1203(a) provides: “A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance, absent a showing of PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 4Com N DH BF WY NN YN NY NY KN ND BS BeBe ee ee Be oN Dn FW NH KF OD 0D FN DH FF WYN KF OS exceptional circumstances that justify a shorter time for notice.” The Agreement provides that notice must be given “at least 24 hours prior to the application.” [Sanchez Decl. Ex. 1 Agreement §1(c).] Here, Plaintiff's counsel telephonically informed Defendants of the October 29, 2012 ex parte appearance on October 22, 2012, in accordance with the California Rules of Court! [Sanchez Dec. Ex. 2.] As counsel had given identical telephonic notice to Defendants just one month before, on September 21, 2012 which defendant understood and appeared for, counsel had no reason to believe that telephonic notice was insufficient to advise Defendant of the time and place of hearing. The moving party bears the burden of proving that he or she is entitled to relief under CCP § 473(b) by a preponderance of the evidence. As discussed in detail below, Defendant’s claims to have misunderstood properly given notice fails because after learning he had misunderstood the hearing date, he took no steps to correct his misunderstanding for eleven days, despite knowing that he had breached the Agreement and that a hearing had been scheduled to take judgment against him. b. Defendant Is Not Entitled To Relief Under CCP § 473(b) Based on He Failed To Exercise Ordinary Prudeace By Taking No Further Actes For Eleven Days, Despite Knowing That Plaintiff Tntended To Seek Entry of Judgment Against Him. The term “surprise” refers to “some condition or situation in which a party ... is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” [Credit Managers Ass'n of So. Calif. v. National Independent Business Alliance (1984) 162 Cal.App.3d 1166, 1173, emphasis added; see also, Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.] Defendant’s claim of surprise based on misunderstanding the date of the hearing is without merit. Even if the Court credits Defendant’s claim that the true date of the hearing was a surprise, the relevant analysis is whether Defendant could have guarded against being taken by surprise through the exercise of ordinary prudence, " Defendant claims that Plaintiff's counsel “knew that [Defendant] did not understand English well, but did little to insure that [he] had sufficient notice” of the October ex parte. This is not supported by any evidence in the record, is improper to the extent is alleges intent to prevent Defendant from appearing, and should thus be disregarded. PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 5COU ON DH BF WN YN NY NY NY NY NY NY NY YN | | KF FF KF Fe FS eS CIA KDA BF wWwNH KF SCO we AKI DH FF WN and without any contributing default or negligence on his part. Defendant has entirely failed to meet this burden. Defendant knew that he had breached the Agreement, and that the breach would result in Plaintiff seeking judgment against him, because less than one month prior to the instant default, Defendant breached the Agreement and Plaintiff sought entry of judgment against him for failing to timely make the $158.21 payment. Defendant received the identical telephonic notification of the September 24, 2012 ex parte hearing from Plaintiffs counsel. [Umanzor Dec. § 13.] Defendant was able to understand the date and time of the hearing, and appeared as directed. (Umanzor Dec. J 13.] This Court warned Defendant of the consequences of another breach. Based on recent experience alone, Defendant did not have any reasonable basis to conclude that the October hearing had been cancelled when he appeared on the wrong day. More importantly, a prudent person could have easily guarded against missing the hearing by simply contacting Plaintiff's counsel to ask the correct date of the hearing. Defendant did nothing for eleven full days after learning of his mistake, and therefore is not entitled to relief based on his claim of surprise, because a reasonable person facing eviction would not fail to act. Defendant, having just gone through an unlawful detainer proceeding and an ex parte hearing, especially knew the consequences of failing to timely act. Thus, he is solely responsible for missing the hearing. * Pails = Defendant Admits He Understood That Counsel Told: Hint To Consult The Agreement For Payment Instructions, Defendant Had 25 Days To Do So Before Making The October Payment, But Did Nothing. For a mistake of fact to justify relief, the party seeking relief must have understood the facts to be other than they are. [Gilio v. Campbell (1952) 114 Cal.App.2d Supp. 853, 857.] That understanding must also be excusable. [Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301.] To be excusable, the mistake must be one that might have been made by a reasonably prudent person in the same circumstances. [Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58.] In other words, the default could not have been avoided through the exercise of ordinary care. {Ubid.| Again, Defendant cannot meet that burden. Defendant concedes in his own papers that his mistake was not reasonable and most PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 6Co oN DH FF WH NN NN NY NY NY NY DN FY Fe Fe ee Re Re Ke eS CIDA BW NH KF SO wH ADAH BwWwNH eK ST certainly could have been avoided through the exercise of ordinary care. Defendant forgot to make the September payment on time, and Plaintiff moved for judgment. On September 24, 2012, Plaintiff's counsel directed Defendant to make the $158.21 payment pursuant to the Agreement; Defendant understood what counsel told him, but Defendant did not comply. [Umanzor Dec. § 14.] Despite claiming inability to understand the Agreement’s payment instructions, Defendant never sought assistance in interpreting the instructions from anyone. (Umanzor Dec. § 14-15.] No reasonable person facing eviction would ignore an instruction to consult the Agreement for information on where to make the next payment. Rather, assuming arguendo that Defendant did not understand the Agreement, a reasonable person in Defendant’s position would have sought help from someone who could explain the Agreement, so he would be certain of where to make his next payment. On September 24, 2012, Defendant was given 25 days to do just that, but instead chose to do nothing. [Umanzor Dec. {J 14-15.] Further, Defendant’s actions were not the result of a language barrier, as Defendant states he knew from the time he made the September payment that: 1) the next payment was due on October 20"; 2) the Agreement provided specific instructions on how to make it; and 3) he had been directed to consult the Agreement for instructions on where to make his payment, but decided to do what he had done last time anyway. [Umanzor Dec. {{ 14-15.] Defendant had also been advised, by this Court, that he would not be relieved of further breaches of the Agreement. {Sanchez Dec. § 12.] Defendant’s failure to timely deliver the October 19" payment to the proper party and place per the Agreement, which resulted in the instant judgment, is therefore not excusable. Last, it is inescapable that despite his claimed language limitations, Defendant knew something was wrong with his October payment because he received a call from counsel on October 22, 2012 stating that there would be another hearing. Having just attended a similar hearing less than 20 days prior, Defendant surely understood what was at stake. Yet, with so much on the line, Defendant unreasonably chose to take no action after appearing on October 26, PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 7NN YN NN NNN He He Be Se ee Se Be ee CIDA BF WONH KF SO eA DH BF WH HF DO we ADA WN BF WH 2012, rather than seek any help whatsoever’. Had Defendant done anything, he would have learned that the hearing was set for October 29, 2012. [Sanchez Dec. § 18.] For this reason, the claim that Defendant did not receive the certified letter from counsel is a red herring. In his moving papers, Defendant admits that the certified letter was properly mailed on October 22, 2012, that notice of the certified letter was duly delivered, but that he failed to collect the certified letter. (Defendant’s Memorandum of Points and Authorities P. 5, Line 18). Furthermore, after Defendant mistakenly attended court on October 26", he unreasonably continued to do nothing until the fifth of November — a total of eleven days. d. Plaintiff Will Be Prejudiced If The Judgment Is Set Aside. Defendant has repeatedly breached his obligations to pay rent, resulting in the unlawful detainer judgment, and his obligations to pay for the costs of that judgment pursuant to the Agreement. Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740 is unavailing because the prejudice to Plaintiff far exceeds the receiving the “advantage of default.” But here, Defendant has twice asked the Court to relieve him of his defaults, forcing Plaintiff to engage in further litigation and incur further costs far in excess of the two $158.21 payments Defendant failed to timely tender. Moreover, the San Francisco Rent Ordinance mandates that landlords should not bear the burden of maintaining serial defaulters like Defendant. [See, S.F.R.O. § 37.9(a)(1)(B): just cause for eviction for habitual late payment, as here, that this is not acceptable.] Accordingly, Plaintiff will be prejudiced if the judgment is set aside. e. Defendant’s Argument That the Judgment Should be Set Aside Based on the Allegation that the Breach is Immaterial Must Be Disregarded as Defendant’s Notice of Motion Fails to Specify That Ground for Relief. It is the consistent policy of this court that only grounds specified in the Notice of Motion will be considered. Here, Defendant’s Notice of Motion specifies that he is seeking relief under CCP 473(b) (mistake, inadvertence, surprise or excusable neglect), but nowhere does he notice that he is seeking to set aside the judgment based on equitable grounds such as immaterial breach. As such Defendant’s argument under paragraph B(1) of his Memorandum of Points and > When given notice of the October 29, 2012 hearing, Defendant cursed at counsel in thorough, explicit, and colloquial English such that counsel was unable to discern whether Defendant intended to appear. [Sanchez Dec. {.] PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 8oe ND KH FF WwW NY NY NY YN KY NNN NY BS Be ee ee Be Be eB ond DAH FF WH KF DO eA DUN FB wWN | OO Authorities must be disregarded. Ml MI f. Assuming Arguendo that The Court Will Entertain Defendant’s Equitable Argument Despite the Absence of That Ground From His Notice of Motion, Defendant Is Barred From Seeking Relief From The Agreement Because The Breach Was Material And Supported By Valuable Consideration That Allowed Defendant To Maintain Possession Of The Rent-Controlled Premises. Defendant's breach of the Agreement is unquestionably material. The Agreement made timely delivery of each payment, to the appropriate party and at the specified location, a material obligation. [Sanchez Decl. Ex. 1 § 1 (“Each provision of the Agreement is considered material by the Parties...Moreover, time is of the essence in the performance of all obligations under this Agreement. This provision shall be interpreted in its strictest sense, with any failure to perform any requirement set forth herein on or before the date upon which performance is due, even if performance is late by only a single day, resulting in the relief upon default set forth above without regard to the relative hardship to the Parties and substantial performance shall not be sufficient.”).] The law in California is clear that “[w]hen time is made of the essence of a contract, a failure to perform within the time specified is a material breach of the contract.” [U.S. Hertz, Inc. v. Niobrara Farms (1974) 41 Cal.App.3d 68, 78; see also Associated Lathing & Plastering Co. v. Dunn, Inc. (1955) 135 Cal.App.2d 40, 50 (holding that trial court was justified in considering that “contract provided that time was of the essence” in determining materiality of breach). Under the express terms of the Agreement, Defendant's second failure to deliver the $158.21 monthly payment by the 20" of the month was a material breach. To the extent Defendant argues that the breach was waived, he is incorrect. Defendant was ordered to pay the September payment to Plaintiff's counsel during the hearing, but Defendant refused, stating he wanted a money order receipt. On his way out of the courtroom, Defendant asked counsel where he should make the payment and was told to review the Agreement. Thereafter, when Defendant attempted to make the October payment to counsel at PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 9oC Om ND UH FF WN NV NHN NN NN Ne ee eB eB eB eB eB on KD UV FF WN K& DOD ODO ONAN DN F&F W NY his office, it was immediately rejected. Nor should the Court credit the claim that it would be “cruel and oppressive” to enforce the Agreement. Defendant has received the full benefit of the Agreement, as he has retained occupancy of the rent-controlled unit in exchange for his promise to strictly comply with his Agreement to make his payments on time for one year. Yet Defendant has already breached that promise twice in the first two months since the Agreement was executed. g. Defendant Cannot Meet The Burden To Prove Waiver By Clear And Convincing Evidence. A party may expressly waive the right to appeal from any judgment. [Elliott & Ten Eyck Partnership v. City of Long Beach (1997) 57 Cal.App.4th 495, 504.] “The burden is on the party claiming a waiver of a right to prove it by clear and convincing evidence that does not leave the matter to speculation." [DRG/Beverly Hills, Ltd. y. Chopstix Dim Sum Cafe & Takeout III, Ltd. (1994) 30 Cal.App.4th 54, 35 Cal.Rptr.2d 515.] Defendant has not credibly established by clear and convincing evidence that there exists a language barrier that prevented him from understanding the provisions of the Agreement he negotiated in exchange for retention of his rent-controlled tenancy. All of Defendant’s arguments stem from his claim that he has a “limited” ability to speak, read, or understand English. [Umanzor Dec. J 6.] Yet, Defendant participated in every aspect of this case without ever disclosing a language barrier. He negotiated his lease in English without asking for a Spanish language translation. Defendant adequately represented himself in the unlawful detainer proceeding by filing a verified Answer on his own behalf and entering into an agreement that allowed him to retain possession of the Premises. He extensively negotiated the terms of the settlement, and signed the Agreement without ever disclosing a language barrier, asking for time to seek assistance, or for a Spanish translation of the document. Defendant also accepted telephonic notification of the September 24" ex parte hearing from Plaintiff's counsel without difficulty. He appeared, represented himself, argued before the court and prevailed, all without ever disclosing difficulty understanding English, requesting an interpreter, or indicating in any way that he could not understand the proceedings. Defendant also verified the Declaration PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 10Com nN Dn FF WN | NN YN NY YN NNN &— BH ee Se Se Pe Be Be CoD Dn FF WH KH DO HAYDN F&F WY KF OS supporting the instant motion to vacate, which is artfully worded and contains lengthy contractual passages. Defendant did not state that he received help in drafting or comprehending the contents of the declaration. This verification alone proves Defendant’s acumen in understanding English is sufficient. The “evidence” proffered by Defendant to establish lack of English proficiency is insufficient to establish unintentional waiver. Defendant’s claim he was unable to understand counsel’s notice of the October 29" ex parte hearing is belied by the fact that Defendant had no difficulties whatsoever receiving the identical form of notice on September 22, 2012. Defendant’s other claim, that he simply could not parse the complex instructions in the Agreement directing him where and how to make payment also are unsupported. The Agreement contains identical provisions for making the rent payment and the $158.21 payment: “Payment shall be made by cashier’s check or money order made payable to Mission Park Building C/O Eclipse Property Management, Inc., at 1001 Marina Village Parkway # 115, Alameda, CA 94501.” [Sanchez Decl. Ex.1, Agreement, §(1)(c).] Defendant had no difficulty tendering his September 5" and October 5" to the correct party and at the correct address pursuant to the Agreement, thus his failure to do so in regards to his October 20" payment is wholly due to his intentional decision to disregard the terms of the Agreement. h. Defendant Waived The Right To Seek Relief From Judgment Granted Upon A Properly Noticed Motion. The Agreement provides that Plaintiff may move for judgment on an ex parte basis so long as proper notice has been given. Defendant waived the right to move for relief from any judgment entered after a properly noticed motion. The evidence establishes that notice was properly given pursuant to California Rules of Court and l(c) of the Agreement itself. Defendant personally acknowledged he received notice, but claims to have misunderstood the date of the hearing. Yet, Defendant knew there was a hearing, as he appeared on October 26, 2012 at the appointed time and place. When he turned out to be mistaken, Defendant did nothing to ascertain the true date of the hearing, despite having the time and ability to do so on October 26, 2012. Consequently, Defendant’s right to move for relief is waived. PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 11= NY NY NY KY NY NY YN HN ee Re ee Re Re Re NY Du FW NH KF DO FAQ DHA FW NH KF DOD FAD NH FW LY N o Mt Mf Hil Iv. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests the Court DENY Defendant’s motion. Respectfully submitted, Dated: November 26, 2012 MC HALL & ASSOCIATES oo a ANDRES SANCHEZ Attorneys for Plaintiff ECLIPSE PROPERTY MANAGEMENT, INC. By: PLAINTIFF’S OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT Case No. CUD-12-642163 12Co ort AN FF WN DN MY YN KN NY NNN Bee ee Be es Be em on nn FW NY KF DO ww ANI DH FF WY KF SS PROOF OF SERVICE - CIVIL I declare that I am a citizen of the United States, over the age of eighteen years and not a party to the within cause; my business address is 605 Market Street, Suite 900, San Francisco, California 94105. On November 26, 2012 I served a true copy of the foregoing OPPOSITION TO DEFENDANT'S MOTION FOR RELIEF FROM JUDGMENT on the interested parties in said action: Benjamin C. Geiger Farella Braun + Martel LLP 235 Montgomery St 17th Fl San Francisco CA 94104 in the manner marked below: [] U] [xX] C] BY UNITED STATES MAIL: | caused a true and correct copy of the above document, by following ordinary business practices, to be placed and sealed in an envelope addressed to the addressee and for collection and mailing with the United States Postal Service in the ordinary course of business, correspondence placed for collection on a particular day, which is deposited with the United States Postal Service that same day. BY OVERNIGHT MAIL: I caused a true and correct copy of the above document, by following ordinary business practices, to be placed and sealed in an envelope addressed to the addressee and for collection and mailing with Federal Express in the ordinary course of business, correspondence placed for collection on a particular day, which is deposited with Federal Express that same day. BY MESSENGER SERVICE: | caused a true and correct copy of the above document to be delivered to the parties in such cause by hand delivery by placing same in a sealed envelope addressed to the addressee and providing it to a professional messenger service for service. BY FACSIMILE TRANSMISSION: I caused a copy of such document to be transmitted via facsimile machine. The fax number of the machine to which the document was transmitted is listed above. The facsimile transmission was reported as complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed at San Francisco, California on November 26, 2012. (LB Jennifer B I lennifer Bearss