Preview
DAVID R. SIDRAN (SBN 121063)
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F ITI§O§ORW
THOMAS M. CROWELL (SBN 172799) SAN MA
TOSCHI, SIDRAN, COLLINS & DOYLE
5145 Johnson Drive ‘
AWN
Pleasanton, CA 94588
Tel: (510) 835-3400
Fax: (510) 835-7800
Attorneys for Defendant,
LES STANFORD CHEVROLET CADILLAC
\OOO\IO\U1
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
UNLIMITED JURISDICTION
ANDY SABERI, an individual, Case NO.: CIV536294
1o
Plaintiff,
11 MEMORANDUM OF POINTS AND
V. AUTHORITIES IN SUPPORT OF
12 DEFENDANT LES STANFORD
LES STANFORD CHEVROLET CHEVROLET CADILLAC’S' EX PARTE
13 CADILLAC, INC., a Michigan corporation, APPLICATION TO:
BJ INTERSTATE AUTO TRANSPORTERS, 1) Set Aside Default and Drop Prove
14 INC. a Nevada corporation, BOGDAN , Up Hearing from Calendar
DEDYK, doing business as SAFE AUTO ALTERNATELY
15 TRANSPORT, an individual, and DOES 1 2) For Order Shortening Time to
through 25, inclusive, Notice And Hear Motion
\vvvvvvvvvvvvvvvvvvvvvvv
to Set
16 Aside Default And to Drop Prove-
Defendants. Up Hearing from Calendar
17
Date: July 22,2016 ~
18 Time: 2:00 pm.
CIV536294
MPA . . .
Dept: Law and Motion
19 '
F1led
Memorandum 0t Points & Authormes
Complaint Filed: November 18, 2015
20 Trial Date: None
“1111111111111111111
21 _ _
22
23 Defendant LES STANFORD CHEVROLET CADILLAC (“LES STANFORD”) hereby
24 submits Eitsex parte application for an order setting aside the default erroneously entered by the
25 Clerk’s office on the grounds that Defendant’s time to respond to the complaint had not expired.
26 Upon remand of a case from the United States District Court, a Defendant has 30 days from the
27 notice of remand to respond to the complaint. Here, Plaintiff requested, and the Clerk’s office
28 entered default fOur days after the notice of remand.
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CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
Ailtematively, if the Court is unwilling to correct this ministerial error through the ex parte
process, then an order shortening time is requested to notice and hear a motion to set aside the
default. Because a prove up hearing has been requested by Plaintiff (despite being informed of the
error of his it of
U14>~WN
actions,) is requested that the Court drop the prove-up hearing pending resolution
the default issue.
1. STATEMENT OF FACTS
The facts in this case are best presented in a bullet format. As the dates are the most
\OOO\)O\
important facts, in most cases only face pages will be attached as evidence.
°. Plaintiff filed his complaint on or about November 18, 2015. A copy of the face
10 page of the complaint, which is all that is relevant to this proceeding, is attached to the Declaration
11 of Thomas M. Crowell (“Crowell Dec. ”) as Exhibit “A.”
I
12 ° LES STANFORD was personally served in Michigan on March 2016. The
24,
13 proof of service IS attached to the Crowell Dec as Exhibit “B.”
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14 ‘
LES STANFORD filed a Notice of Removal to the United States District Court on
15 April 25, 2016. A copy of the face page is attached to the Crowell Dec as Exhibit “C.”
1
16 0 In the Federal District Court, a flurry of motion practice occurred. What is
17 important is that on May 2, 2016, LES STANFORD filed a Motion to Dismiss under F RCP Rule
18 12(b)(6.) A true and correct copy of the face page of this motion is attached to the Crowell Dec as
19 Exhibit “D.” Plaintiff also filed a Motion to Remand on May 6, 2016 (Exhibit “E” to the Crowell
20 Dec.) Oddly enough, despite the fact that LES STANFORD had appeared in the action and filed a
21 motion to Dismiss, Plaintiff filed a motion for default on May 16, 2016. This motion is attached in
22 its entirely as Exhibit “F,” because the Court should understand that the pattern of filing legally
23 and factually incorrect pleadings in both Federal and State Courts. As indicated by the face page
24 of Exhibit “F,” the District Court Denied this motion four days later, by simply stamping “Denied”
25 on the face page.
26 ' The Motion for Remand was granted by Order dated June 16, 2016, the face page is
27 attached to the Crowell Dec. as Exhibit “G.” Plaintiff filed a “Notice of Entry of Order Granting
28 Motion to Remand to Superior Court ...” on June 17, 2016 (the face page is attached as Exhibit
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CASE NO.: CIV536294
I
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
1
“H” to the Crowell Dec., as well as a copy of the June 17, letter from the District Court remanding
the matter.) On June 21, FOUR DAYS LATER, plaintiff filed and served a request for entry of
DJN
default (this entire request is attached as Exhibit “H” to the Crowell Dec.) Defendant then
received-a “Notice of Entry of Default,” dated June 14, 2016, demonstrating that that the Clerk’s
office had actually entered the Default. (Exhibit “1” to the Crowell Dec.) The Court should note
well that the Request for Default itself mentions that LES STANFORD was served March 24,
2016, (Exhibits H and 1, Paragraph 1.0) but fails to mention that the matter had been removed to
\OOOQO’X
i
Federal Court and subsequently remanded.
‘0'
LBS STANFORD’S Counsel called the Clerk’s office to alert them that they had
10 made a clerical or ministerial error in entering the default because the time for Defendant to
11 respond to the Complaint had not expired. The Clerk’s office instructed Counsel to send a letter to
12 the Clerk’s office. Thomas Crowell drafted a letter to the Clerk, attached to the Crowell Dec. as
13 Exhibit “J,” which was also copied to Plaintiff’s Counsel. A letter, attached to the Crowell Dec. as
14 Exhibit “K,” was also sent directly to Plaintiff’s counsel asking them to set aside the default
15 beCause it had been erroneously requested and entered.
'
0'
16 ,
Rather than do the right thing, Plaintiff’s counsel sent a fuming opposition letter to
17 the Clerk’s office, claiming that Exhibit “J” was an improper ex parte communication with the
18 Court (despite their receiving it,clearly, because it was copied to them) and presenting a factually
19 and legally incorrect argument for why the default should be entered. That letter is attached to the
20 Crowell Dec as Exhibit “L.”
I
21 - Defendant’s counsel called the Clerk’s office back, and was told that the matter
22 had been submitted to the Presiding Judge. However, on July 18, 2016, Defendant received notice
23 of a prove up hearing, set for July 26, 2016. Defendant can wait no longer and must therefore put
24 this matter before a judge, have the Court set the default aside, and allow Defendant to file its
.
25 initial pleading, which will be a demurrer to the Complaint.
26 That is the full relevant procedural history. The primary'facts are that the matter was
27 remanded June 16, 2016 and Plaintiff requested default be entered four days later. That was wrong
28 and the Court must, one way or the other, reverse this clerical error.
,
.
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CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
'
Defendant did give notice'to all parties of this application, as stated in the Declaration of
[\J Thomas M. Crowell.
II. STATUTORY AUTHORITY
The statute governing this issue is Code of Civil Procedure C.C.P §430.90, which states:
(a) Where the defendant has removed a civil action to federal court
without filing a response in the original court and the case is later
\DOOQQUI-bw
remanded for improper removal, the time to respond shall be as follows:
.(1) If the defendant has not generally appeared in either the original or
federal court, then 30 days from the day the original court receives the
case on remand to move to dismiss the action pursuant to Section 583.250
.
or to move to quash service of summons or to stay or dismiss the action
pursuant to Section 418.10, if the court has not ruled on a similar motion
filed by the defendant prior to the removal of the action to federal court.
10
'(2) If the defendant has not filed an answer in the original court, then 30
11 days from the dav the original court receives the case on remand to do any
of the following:
12 (A) Answer the complaint.
(B) Demur or move to strike all or a portion of the complaint if:
13
(i) an answer was not filed in the federal court, and (ii) a demurrer or
14 motion to strike raising the same or similar issues was not filed and ruled
upon by the original court prior to the removal of the action to federal
15 court or was not filed and ruled upon in federal court prior to the remand.
If the demurrer or motion to strike is denied by the court, the defendant
16 shall have 30 days to answer the complaint unless an answer was filed
with the demurrer or motion to strike.
17
'(b) For the purposes of this section, time shall be calculated from the
18 date of the original court's receipt of the order of remand.
19 (C.C.P §430.90 (emphasis added.)
I
20 C.C.P §473(a)(1) allows the Court to make “an amendment to any pleadings or proceeding
21 in other particulars,” §473(b) discusses relief from default for the attorneys’ or parties’ mistake,
22 inadvertence, or inexcusable neglect; however, the mistake in this instance was not made by
23 Defendants, it was Plaintiffs and the Clerk of the Court who should have recognized that the time
24 to respond is 30 days after remand. The Court has inherent power to correct mistakes such as this.
25 (C.C.P §‘128(8); Boylan v. Marine (1951, Cal App) 104 Cal App 2d 321, 322.)
I
26 III.ARGUMENT
‘
27 Defendant had 30 days from Jun 17, 2016 to respond to the Complaint. While the statute is
28 a bit complicated, any reasonable attorney should be able to figure it out.
.
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CASE N0.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
'
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
First of all, it should be clear that the requirement of subsection (a) of the statute identified
above is satisfied, as no response was filed by LES STANFORD in the San Mateo Superior Court
AWN before the matter was removed. The Notice of Removal was the first document filed by this
Defendant.
Next, subsection (a)(1) does not apply because a motion to dismiss under Rule 12(b)(6)
was filed, which serves as a general appearance since jurisdiction was not questioned. Of course,
even
\DOO\10\Ul
if itdid apply, Defendant would have had “30 days from the day the original court receives
the case 'on remand to move to dismiss the action pursuant to Section 583.250 or to move to quash
service of summons or to stay or dismiss the action pursuant to Section 418.10.” (C.C.P
1o §430.90(a)(l))
11 Subsection (a)(2) does apply. That section, essentially states that if an answer has not been
12 filed in the original court (as is the case here) the Defendant has 30 days to answer, or the
13 defendant may demur or move to strike if an answer was not filed in Federal Court (defendant did
14 not file an answer in the Federal Court here) and a demurrer or motion to strike raising the same
15 issues “was not filed and ruled upon by the original court prior to the removal of the action to
16 Federal Court or was not filed and ruled upon in federal court prior to the remand.”
&'
17 (§43o.90(a)(2)(i ii) (emphasis added.) )
18 So, this means that if a motion to strike or a demurrer was already ruled upon by the
19 original (State) or Federal Court, the Defendant does not get a second bite of the apple after
20 remand; but the Defendant stillgets 30 days to answer after remand. If no demurrer or motion to
21 strike was filed and ruled upon, then a demurrer and/or motion to strike may be filed in the state
22 court after remand, because there is no second bite of the apple in that scenario, and again
23 Defendaht gets 30 days to do that
24 Il’lview of the clearly controlling statute quoted above, Plaintiff certainly does not get to
25 enter a default 4 days after the remand; there is no statutory authority for that course of action
26 whatsoever.
I
27 That is basically all there is to this mess created by Plaintiffs counsel: Defendant had 30
28 days from the June 16, 2016 remand order to file an answer or demur to the complaint. Defendant
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CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
intends to demur. The default was therefore not permissible until July 16, 2016. The default was
erroneous entered by the Clerk of the Court 26 days prematurely. The Court mustfix this
problem.
Defendant sought to resolve this problem by notifying the Clerk and Plaintiff’s counsel of
the error. Defendant contends that a reasonable, competent, and respectful opposing counsel
O\ would have recognized his error and stipulated to set aside the default. Instead, the reaction was
irrational and Vicious, with a letter to the Clerk and-doubling-down on the procedural error by
OO-\l
scheduling a default prove-up hearing: That behavior forced Defendant to no longer wait for the
\D Court to correct the error and forced Defendant to file this application.
10 Therefore, Defendant requests the following relief.
11 1) The default should be set aside and the prove up hearing dropped from the
12 Calendar. The Court really needs to review nothing but the docket in this case to realize that an
13 error was made.
'
14 2) If the Court is not willing to set the default aside on an ex parte basis, then an order
15 shortening time to notice and hear a motion to set aside the default should be issued.
16 3.) In either case, the Court should drop the default prove-up hearing from the
I
17 Calendar.
18 If the Court is willing to drop the prove-up hearing but not willing to set aside the default, then
19 in all honesty the motions could probably be set for regular time, however, given Plaintiffs proven
20 tendency to file frivolous and improper motions and requests for default, Defendant fears further
21 mischief from Plaintiff and would request that the motions be heard sooner rather than later.
22 IV. CONCLUSION
23 For the reasons stated above, this application should be granted. Defendant’s preference is
24 as follows:
25 1) .The default should be set aside and the prove up hearing dropped from the
26 Calendar. The Court really needs to review nothing but-the docket in this case to realize that an
27 error was made.
\
28
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CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
. STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
2) If the Court is not willing to set the default aside on an ex parte basis, then an order
shortening time to notice and hear a motion to set aside the default should be issued.
b.)
3) In either case, the Court should drop the default prove-up hearing from the
Calendar.
kl]
Respectfully submitted.
DATED: July 20, 2016 TOSCHI -
SIDRAVLINS - DOYLE
0000\10
By:
/
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DAVID
7/) %
R.
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SIDRA'N
THOMAS M. CROWELL
Attorneys for Defendant
LES STANFORD CHEVROLET CADILLAC
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CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES
STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT
Preview
DAVID R. SIDRAN (SBN 121063) ' F ITI§O§ORW THOMAS M. CROWELL (SBN 172799) SAN MA TOSCHI, SIDRAN, COLLINS & DOYLE 5145 Johnson Drive ‘ AWN Pleasanton, CA 94588 Tel: (510) 835-3400 Fax: (510) 835-7800 Attorneys for Defendant, LES STANFORD CHEVROLET CADILLAC \OOO\IO\U1 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO UNLIMITED JURISDICTION ANDY SABERI, an individual, Case NO.: CIV536294 1o Plaintiff, 11 MEMORANDUM OF POINTS AND V. AUTHORITIES IN SUPPORT OF 12 DEFENDANT LES STANFORD LES STANFORD CHEVROLET CHEVROLET CADILLAC’S' EX PARTE 13 CADILLAC, INC., a Michigan corporation, APPLICATION TO: BJ INTERSTATE AUTO TRANSPORTERS, 1) Set Aside Default and Drop Prove 14 INC. a Nevada corporation, BOGDAN , Up Hearing from Calendar DEDYK, doing business as SAFE AUTO ALTERNATELY 15 TRANSPORT, an individual, and DOES 1 2) For Order Shortening Time to through 25, inclusive, Notice And Hear Motion \vvvvvvvvvvvvvvvvvvvvvvv to Set 16 Aside Default And to Drop Prove- Defendants. Up Hearing from Calendar 17 Date: July 22,2016 ~ 18 Time: 2:00 pm. CIV536294 MPA . . . Dept: Law and Motion 19 ' F1led Memorandum 0t Points & Authormes Complaint Filed: November 18, 2015 20 Trial Date: None “1111111111111111111 21 _ _ 22 23 Defendant LES STANFORD CHEVROLET CADILLAC (“LES STANFORD”) hereby 24 submits Eitsex parte application for an order setting aside the default erroneously entered by the 25 Clerk’s office on the grounds that Defendant’s time to respond to the complaint had not expired. 26 Upon remand of a case from the United States District Court, a Defendant has 30 days from the 27 notice of remand to respond to the complaint. Here, Plaintiff requested, and the Clerk’s office 28 entered default fOur days after the notice of remand. -1- CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT Ailtematively, if the Court is unwilling to correct this ministerial error through the ex parte process, then an order shortening time is requested to notice and hear a motion to set aside the default. Because a prove up hearing has been requested by Plaintiff (despite being informed of the error of his it of U14>~WN actions,) is requested that the Court drop the prove-up hearing pending resolution the default issue. 1. STATEMENT OF FACTS The facts in this case are best presented in a bullet format. As the dates are the most \OOO\)O\ important facts, in most cases only face pages will be attached as evidence. °. Plaintiff filed his complaint on or about November 18, 2015. A copy of the face 10 page of the complaint, which is all that is relevant to this proceeding, is attached to the Declaration 11 of Thomas M. Crowell (“Crowell Dec. ”) as Exhibit “A.” I 12 ° LES STANFORD was personally served in Michigan on March 2016. The 24, 13 proof of service IS attached to the Crowell Dec as Exhibit “B.” '1 14 ‘ LES STANFORD filed a Notice of Removal to the United States District Court on 15 April 25, 2016. A copy of the face page is attached to the Crowell Dec as Exhibit “C.” 1 16 0 In the Federal District Court, a flurry of motion practice occurred. What is 17 important is that on May 2, 2016, LES STANFORD filed a Motion to Dismiss under F RCP Rule 18 12(b)(6.) A true and correct copy of the face page of this motion is attached to the Crowell Dec as 19 Exhibit “D.” Plaintiff also filed a Motion to Remand on May 6, 2016 (Exhibit “E” to the Crowell 20 Dec.) Oddly enough, despite the fact that LES STANFORD had appeared in the action and filed a 21 motion to Dismiss, Plaintiff filed a motion for default on May 16, 2016. This motion is attached in 22 its entirely as Exhibit “F,” because the Court should understand that the pattern of filing legally 23 and factually incorrect pleadings in both Federal and State Courts. As indicated by the face page 24 of Exhibit “F,” the District Court Denied this motion four days later, by simply stamping “Denied” 25 on the face page. 26 ' The Motion for Remand was granted by Order dated June 16, 2016, the face page is 27 attached to the Crowell Dec. as Exhibit “G.” Plaintiff filed a “Notice of Entry of Order Granting 28 Motion to Remand to Superior Court ...” on June 17, 2016 (the face page is attached as Exhibit -2- CASE NO.: CIV536294 I MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT 1 “H” to the Crowell Dec., as well as a copy of the June 17, letter from the District Court remanding the matter.) On June 21, FOUR DAYS LATER, plaintiff filed and served a request for entry of DJN default (this entire request is attached as Exhibit “H” to the Crowell Dec.) Defendant then received-a “Notice of Entry of Default,” dated June 14, 2016, demonstrating that that the Clerk’s office had actually entered the Default. (Exhibit “1” to the Crowell Dec.) The Court should note well that the Request for Default itself mentions that LES STANFORD was served March 24, 2016, (Exhibits H and 1, Paragraph 1.0) but fails to mention that the matter had been removed to \OOOQO’X i Federal Court and subsequently remanded. ‘0' LBS STANFORD’S Counsel called the Clerk’s office to alert them that they had 10 made a clerical or ministerial error in entering the default because the time for Defendant to 11 respond to the Complaint had not expired. The Clerk’s office instructed Counsel to send a letter to 12 the Clerk’s office. Thomas Crowell drafted a letter to the Clerk, attached to the Crowell Dec. as 13 Exhibit “J,” which was also copied to Plaintiff’s Counsel. A letter, attached to the Crowell Dec. as 14 Exhibit “K,” was also sent directly to Plaintiff’s counsel asking them to set aside the default 15 beCause it had been erroneously requested and entered. ' 0' 16 , Rather than do the right thing, Plaintiff’s counsel sent a fuming opposition letter to 17 the Clerk’s office, claiming that Exhibit “J” was an improper ex parte communication with the 18 Court (despite their receiving it,clearly, because it was copied to them) and presenting a factually 19 and legally incorrect argument for why the default should be entered. That letter is attached to the 20 Crowell Dec as Exhibit “L.” I 21 - Defendant’s counsel called the Clerk’s office back, and was told that the matter 22 had been submitted to the Presiding Judge. However, on July 18, 2016, Defendant received notice 23 of a prove up hearing, set for July 26, 2016. Defendant can wait no longer and must therefore put 24 this matter before a judge, have the Court set the default aside, and allow Defendant to file its . 25 initial pleading, which will be a demurrer to the Complaint. 26 That is the full relevant procedural history. The primary'facts are that the matter was 27 remanded June 16, 2016 and Plaintiff requested default be entered four days later. That was wrong 28 and the Court must, one way or the other, reverse this clerical error. , . -3- CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT ' Defendant did give notice'to all parties of this application, as stated in the Declaration of [\J Thomas M. Crowell. II. STATUTORY AUTHORITY The statute governing this issue is Code of Civil Procedure C.C.P §430.90, which states: (a) Where the defendant has removed a civil action to federal court without filing a response in the original court and the case is later \DOOQQUI-bw remanded for improper removal, the time to respond shall be as follows: .(1) If the defendant has not generally appeared in either the original or federal court, then 30 days from the day the original court receives the case on remand to move to dismiss the action pursuant to Section 583.250 . or to move to quash service of summons or to stay or dismiss the action pursuant to Section 418.10, if the court has not ruled on a similar motion filed by the defendant prior to the removal of the action to federal court. 10 '(2) If the defendant has not filed an answer in the original court, then 30 11 days from the dav the original court receives the case on remand to do any of the following: 12 (A) Answer the complaint. (B) Demur or move to strike all or a portion of the complaint if: 13 (i) an answer was not filed in the federal court, and (ii) a demurrer or 14 motion to strike raising the same or similar issues was not filed and ruled upon by the original court prior to the removal of the action to federal 15 court or was not filed and ruled upon in federal court prior to the remand. If the demurrer or motion to strike is denied by the court, the defendant 16 shall have 30 days to answer the complaint unless an answer was filed with the demurrer or motion to strike. 17 '(b) For the purposes of this section, time shall be calculated from the 18 date of the original court's receipt of the order of remand. 19 (C.C.P §430.90 (emphasis added.) I 20 C.C.P §473(a)(1) allows the Court to make “an amendment to any pleadings or proceeding 21 in other particulars,” §473(b) discusses relief from default for the attorneys’ or parties’ mistake, 22 inadvertence, or inexcusable neglect; however, the mistake in this instance was not made by 23 Defendants, it was Plaintiffs and the Clerk of the Court who should have recognized that the time 24 to respond is 30 days after remand. The Court has inherent power to correct mistakes such as this. 25 (C.C.P §‘128(8); Boylan v. Marine (1951, Cal App) 104 Cal App 2d 321, 322.) I 26 III.ARGUMENT ‘ 27 Defendant had 30 days from Jun 17, 2016 to respond to the Complaint. While the statute is 28 a bit complicated, any reasonable attorney should be able to figure it out. . -4- CASE N0.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES ' STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT First of all, it should be clear that the requirement of subsection (a) of the statute identified above is satisfied, as no response was filed by LES STANFORD in the San Mateo Superior Court AWN before the matter was removed. The Notice of Removal was the first document filed by this Defendant. Next, subsection (a)(1) does not apply because a motion to dismiss under Rule 12(b)(6) was filed, which serves as a general appearance since jurisdiction was not questioned. Of course, even \DOO\10\Ul if itdid apply, Defendant would have had “30 days from the day the original court receives the case 'on remand to move to dismiss the action pursuant to Section 583.250 or to move to quash service of summons or to stay or dismiss the action pursuant to Section 418.10.” (C.C.P 1o §430.90(a)(l)) 11 Subsection (a)(2) does apply. That section, essentially states that if an answer has not been 12 filed in the original court (as is the case here) the Defendant has 30 days to answer, or the 13 defendant may demur or move to strike if an answer was not filed in Federal Court (defendant did 14 not file an answer in the Federal Court here) and a demurrer or motion to strike raising the same 15 issues “was not filed and ruled upon by the original court prior to the removal of the action to 16 Federal Court or was not filed and ruled upon in federal court prior to the remand.” &' 17 (§43o.90(a)(2)(i ii) (emphasis added.) ) 18 So, this means that if a motion to strike or a demurrer was already ruled upon by the 19 original (State) or Federal Court, the Defendant does not get a second bite of the apple after 20 remand; but the Defendant stillgets 30 days to answer after remand. If no demurrer or motion to 21 strike was filed and ruled upon, then a demurrer and/or motion to strike may be filed in the state 22 court after remand, because there is no second bite of the apple in that scenario, and again 23 Defendaht gets 30 days to do that 24 Il’lview of the clearly controlling statute quoted above, Plaintiff certainly does not get to 25 enter a default 4 days after the remand; there is no statutory authority for that course of action 26 whatsoever. I 27 That is basically all there is to this mess created by Plaintiffs counsel: Defendant had 30 28 days from the June 16, 2016 remand order to file an answer or demur to the complaint. Defendant -5- - CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT intends to demur. The default was therefore not permissible until July 16, 2016. The default was erroneous entered by the Clerk of the Court 26 days prematurely. The Court mustfix this problem. Defendant sought to resolve this problem by notifying the Clerk and Plaintiff’s counsel of the error. Defendant contends that a reasonable, competent, and respectful opposing counsel O\ would have recognized his error and stipulated to set aside the default. Instead, the reaction was irrational and Vicious, with a letter to the Clerk and-doubling-down on the procedural error by OO-\l scheduling a default prove-up hearing: That behavior forced Defendant to no longer wait for the \D Court to correct the error and forced Defendant to file this application. 10 Therefore, Defendant requests the following relief. 11 1) The default should be set aside and the prove up hearing dropped from the 12 Calendar. The Court really needs to review nothing but the docket in this case to realize that an 13 error was made. ' 14 2) If the Court is not willing to set the default aside on an ex parte basis, then an order 15 shortening time to notice and hear a motion to set aside the default should be issued. 16 3.) In either case, the Court should drop the default prove-up hearing from the I 17 Calendar. 18 If the Court is willing to drop the prove-up hearing but not willing to set aside the default, then 19 in all honesty the motions could probably be set for regular time, however, given Plaintiffs proven 20 tendency to file frivolous and improper motions and requests for default, Defendant fears further 21 mischief from Plaintiff and would request that the motions be heard sooner rather than later. 22 IV. CONCLUSION 23 For the reasons stated above, this application should be granted. Defendant’s preference is 24 as follows: 25 1) .The default should be set aside and the prove up hearing dropped from the 26 Calendar. The Court really needs to review nothing but-the docket in this case to realize that an 27 error was made. \ 28 -6~ CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES . STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT 2) If the Court is not willing to set the default aside on an ex parte basis, then an order shortening time to notice and hear a motion to set aside the default should be issued. b.) 3) In either case, the Court should drop the default prove-up hearing from the Calendar. kl] Respectfully submitted. DATED: July 20, 2016 TOSCHI - SIDRAVLINS - DOYLE 0000\10 By: / I DAVID 7/) % R. . SIDRA'N THOMAS M. CROWELL Attorneys for Defendant LES STANFORD CHEVROLET CADILLAC ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- CASE NO.: CIV536294 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO SET ASIDE DEFAULT