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DAVIDR. SIDRAN (SBN 121063)
THOMAS M. CROWELL (SBN 172799)
TOSCHI, SIDRAN, COLLINS &VDOYLE
5145 Johnson Drive FELED
Pleasanton, CA 94588 SAN MATEO COUNTY
Tel: (510) 835-3400
Fax: (510) 835-7800 JU
'
2016 3
(ll upenor
Attorneys for Defendant,
LES STANFORD CHEVROLET CADILLAC By 2
“DEW" CLERK
\OOO\)O\
SUPERIOR COURT OF CALIFORNIA, COUNTY
OF SAN MATEO
UNLIMITED JURISDICTION
ANDY SABERI, an individual, Case No.: CIV536294
10
Plaintiff,
1.1
v. DECLARATION OF THOMAS M.
12 CROWELL IN SUPPORT OF
LES STANFORD CHEVROLET DEFENDANT LES STANFORD
13
CADILLAC, INC., a Michigan corporation, CHEVROLET CADILLAC’S EX PARTE
B] INTERSTATE AUTO TRANSPORTERS, APPLICATION TO:
14 INC. a Nevada corporation, BOGDAN
DEDYK, doing business as SAFE AUTO 1) Set Aside Default
15
TRANSPORT, an individual, and DOES 1
ALTERNATELY
through 25, inclusive, 2) For Order Shortening Time to
Notice And Hear Motion to Set
\VVVVVVVVVVVVVVVVVVVVVVV
16
Aside Default And to Drop Prove-
Defendants. Up Hearing from Calendar
17
18 CIV536294 ‘ Date: July 22, 2016
DIS
Declaration in Support
I
Time: 2:00 pm.
l
19 34235 Dept: Law and Motion
20 g! lllllllllmllllllllllll Complaint Filed: November 18, 2015
2.1
Trial Date: None
22
23 I, Thomas M. Crowell, declare as follows:
24 1) I am an Attorney At Law licensed to practice
before all the courts of the State of California.
25 I am Senior Counsel at the Law Offices of
Toschi, Sidran, Collins & Doyle, Counsel of
26 Record for Defendant LES STANFORD CHEVROLET
CADILLAC herein. I have been
27 the attorney responsible for this case since it
was received in this office, and the following
28
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Case No.: C1V536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S
l)Set Aside Default, etc. ‘ EX PARTE APPLICATION TO:
facts are personally known to me through my work on the file and review of the papers and
the dockets in the case, both at the State and Federal level.
2) I have notice of this application to all parties by facsimile letter on July 20, 2016 at about
U‘I-D-UJN
4:30 pm. A true and correct copy of the notice letter and the confirmation is attached
hereto as Exhibit “0.” The notice provided the date, time, location, and subject of the
application.
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3) Defendant brings this ex parte application to set aside an erroneously entered default. The
Code of Civil Procedure allows a party 30 days from the date the Court receives notice of
remand to file a response; the default was entered four days after that notice which is
10 entirely improper.
11 4) The attorneys for Plaintiff ANDY SABERI are: James M. Dombroski, Esq and Thomas I.
12 Saberi, Esq., I spoke to Mr. Dombroski and he opposes the Application.
13 The attorney for BJ Interstate Autotransporters, Inc. is James Attridge, Esq., I spoke to him
14 and he does not oppose the Application.
15 The Attorney for Bogdan Dedyk, dba Safe Auto Transport is Michael J. LeVangie, Esq., I
16 spoke to him and he does not oppose the Application.
17 5) The urgency of this ex parte application is that Plaintiff has set a default prove up for next
18 week. Going forward with the prove up will be an unnecessary expense to the Court and
19 Defendant when the default entered against it is obvious and manifest clerical error on the
20 part of the Clerk’s office.
21 6) Plaintiff filed his complaint on or about November 18, 2015. A true and correct copy of
22 the face page 0f the complaint, which is all that is relevant to this proceeding, is attached to
23 hereto as Exhibit “A.”
24 7) LES STANFORD was personally served in Michigan on March 24, 2016. A true and
25 correct copy of the proof of service is attached hereto Exhibit “B.”
26 8) LES STANFORD filed a Notice of Removal to the United States District Court on April
27 25, 2016. A true and correct copy of the face page is attached hereto as Exhibit “C.”
28
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Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO:
l)Set Aside Default, etc.
9) In the Federal District Court, a flurry of motion practice occurred. What is important is
that on May 2, 2016, LES STANFORD filed a Motion to Dismiss under FRCP Rule
12(b)(6.) A true and correct copy of the face page of this motion is attached hereto as
A Exhibit “D.” Plaintiff also filed a Motion to Remand on May 6, 2016, a true and correct
copy of the facepage of that motion is attached hereto as Exhibit “E”. Oddly enough,
despite the fact that LES STANFORD had appeared in the action and filed a motion to
\DOONONUI
Dismiss, Plaintiff filed a motion for default on May 16, 2016. A true and correct copy of
that motion is attached in its entirety hereto as Exhibit “F,” because the Court should
understand that the pattern of filing legally and factually incorrect pleadings in both
10 Federal and State Courts. As indicated by the face page of Exhibit “F,” the District Court
11 Denied this motion four days later, by simply stamping “Denied” on the face page.
12 10) The Motion for Remand was granted by Order dated June 16, 2016, a true and correct copy
13 of the face page of the order is attached hereto as Exhibit “G.”
14 11) Plaintiff filed a “Notice of Entry of Order Granting Motion to Remand to Superior Court
15 ...” on June 17, 2016, a true and correct copy of the face page is attached hereto as Exhibit
16 “H”, as well as a true and correct copy of the June 17, letter from the District Court
17 remanding the matter.)
18 12) On June 21, FOUR DAYS LATER, plaintiff filed and served a request for entry of default
19 (a true and correct copy of this entire request is attached as Exhibit “H” to the Crowell
20 Dec.)
21 13) Defendant then received a “Notice of Entry of Default,” dated June 24, 2016,
22 demonstrating that that the Clerk’s office had actually entered the Default. A true and
23 corrct copy of this “Notice of Entry of Default is attached hereto as Exhibit “1.” The Court
24 should note well that the Request for Default itself mentions that LES STANFORD was
25 served March 24, 2016, (Exhibits H and 1, Paragraph 1.0) but fails to mention that the
26 matter had been removed to Federal Court and subsequently remanded.
27 14)I called the Clerk’s office to alert them that they had made a clerical or ministerial error in
28 entering the default because the time for Defendant to respond to the Complaint had not
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Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO:
1)Set Aside Default, etc.
expired. The Clerk’soffice instructed me to send a letter to the Clerk’s office. I drafted a
letter to the Clerk, a true and correct copy of which is attached hereto as Exhibit “J,” which
was also copied to Plaintiff’s Counsel. Another letter, a true and correct copy of which is
attached hereto as Exhibit “K,” was also sent directly to Plaintiff’ s counsel asking them to
set aside the default because it had been erroneously requested and entered.
15) Rather than do the right thing, Plaintiff” s counsel sent a fuming opposition letter to the
Clerk’s office, claiming that Exhibit “J” was an improper ex parte communication with the
\OOONONUIA
Court (despite their receiving it, clearly, because it was copied to them) and presenting a
factually and legally incorrect argument for why the default should be entered. A true and
10 correct copy of that letter is attached hereto as Exhibit “L.”
11 16) I called the Clerk’s office back, and was told that the matter had been submitted to the
12 Presiding Judge. However, on July 18, 2016, Defendant received notice of a prove up
13 hearing, set for July 26, 2016. A true and correct copy of this notice is attached hereto as
14 Exhibit “M.” Defendant can wait no longer and must therefore put this matter before a
15 judge, have the Court set the default aside, and allow Defendant to file its initial pleading,
16 which will be a demurrer to the Complaint.
17 17) Attached hereto as Exhibit “N” is a true and correct copy of the Memorandum of Points
18 and Authorities in support of the Demurrer Defendant proposed to file once the default is
19 set aside.
2o The foregoing is true and correct under penalty of perjury under the laws of the State of California.
21
22
23
24
DATED: July 21, 2016
By:
/‘
/
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TOSCHI - SI RAN
,
DA‘VID’R. SIDRAN
- OLLINS - DOYLE
25 THOMAS M. CROWELL
Attorneys for Defendant
26 LES STANFORD CHEVROLET CADILLAC
27
28
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Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO:
l)Set Aside Default, etc.
EXHIBIT A
Legal Tabs Co. 1-300-322-3022 Recycled
@ Stock # EXA-5-B
JAMES M. DOMBROSKI
(SEN 56898)
LAW OFFICE OF JAMES M.
19 DOMBRO 3m:
Post Office Box 751027
'
Petaluma, CA. 94975 ;
Tel. (707) 762-7807
;
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ENDQHSED WEED
Fax. (707) 769-0419 _
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SAN MATEO COUNTY
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THOMAS I.SABER1,ESQ.SB '
Nov 1 8 2015
-
LAW OFFICE OF WILLIAM H.
MW
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PAYNTER 3 lg. O Mm
1045 Ailport Blvd, Suite 12 I
3; magma
80. San Francisco, CA 94080 O
OEPUTV CLERK
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Telephune: (650) 588-2428
Facsimile: (650) 873~7046
‘
Attomeys for PlainfiffANDY '
SAEgERI.
SUPERIOR (:m OF THE 3mm OF CALIFORNIA
INAND FOR THE COUNT?! OF SAN
MATEO
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UILILIMITED IORISDICTION
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ANDY SABERIgaflndividfiél,’
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(Jury Trial}? Demanded)
. LES STANFORD CHEVROLET
CADILLAC.
INC, a Michigan corporation, 3]
ETERSTAT
AUTO WSPQRTERS, INC.,
corpmatiOn, BQGDANDEDYK.
a§Nevada I ~
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doing.
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business as'BAFE AUTO
TRANSPORT, 331i
individual, and DOES 1 through
25; inclusive; 3
Defendants. 3
. Plainfifl: Andy Saber]. Ollegcs asfoflows:
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1. .Plaintifi’Andy Saber} (hereinafier
“85.19.14? is'an individual
.
located in San Mateo
County; California. .I
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2.
Defendant Les Stamford Chevrolet
.
Caaiuao, Inc. (hereinafier “Les
Stanford'f). at all
times herein mentioned, is
IOOated £t21730 Michigaxj'Avenne,
Dearbbm, Michigan 48124.
Upon
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Comjylalnlfor Dafimgu
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James Dombroski, sen 56898
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SAN MATEO COUNTY
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Law Oitlces of Thomas Saberi
104t5 Airport Blvd.
South San Francisco. CA 94080
Mist-none no; (650} 588-2428
ATioflNil‘v‘ run (mum, Plaintiff
SUPERIOR COURT or CALIFORNIA. coumv as
San Mateo
400 County Center
Redwood Cilv CA 94063-1655 ' ..
mmnmammomm Andv Saberi individual 'cérvli'wm
CIV 536294
DEFkNDANICRESPONDE-‘JT Chevrolet Cadillac. et al
Rel \‘o ::r We rm
PROOF OF SERVICE OF summons none
1. At the time of. Icrvico I was a citizen oi the United States, at least 18 years oi ago and not a party to this action.
2- lservod copies of: Summons. Civil Case Cover Sheet, Complaint for Damages, Notice of Case Management
Conference, ADR info , Case Manegement Statement
3. 8- Patty served: Les Stanford Chevrolet Cadillac. inc.. 3 Michigan Corporation
BY FAX
0. Person Served: Scott Montgomury. h'lztrtagcr - Person Authorized to Accept Service oi'i’roccxs
4. Address where the party was served: 21730 Michioan Avenue
Dearborn. Mi 48124
01
. i served the party
i personally delivered the documents listed in item 2 to the party or person nuthorired to
a. by personal service.
receive service of process for the party ('1) (Inmate): 03/24/2016 (2) marine): 2:05PM
0. The "Notice to the Person Served" (on the summons) was completed as follows:
d. on helmli oi:
Les Stanford Chevrolet CadIllnrz. Inc.. a Michigan Corporation
under: CCP 416.10 (corporation)
7. Person who served papers
a. Name: Jason Schmaus
h. Address: One LetIai - ”ted-Marin
504 Redwood Blvd 1:223
Novalo, CA 94947
0. Telephone number: .11549143505
(1. The tee {or service was: :5 24995
e. lam:
(1) Not oregrstered Caiitomizi process Server.
. ..., ...
t3. idecinre under penaltv of perjury under the laws oi the United States at America: that the loreoornq‘IS inn: and correct.
Date: 04/06/2016 ’V/
Jason Schmaus
l.!l;0_l_PEST-0‘: \VNQ fl: RVFI? I‘J’I'l .101). LA 44/ “3::--G.‘IAII}RI}
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Inw Jutlt 122:2 PROOF OF SERVICE OF SUMMONS
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DAVID R. SIDRAN (SBN 121063) ~
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THOMAS M. CROWELL (SBN 172799)
TOSCHI, SIDRAN, COLLINS & DOYLE
31-45 “mamas
easanton,
Tel: (510) 835~3400
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SAN MATE °°°””"
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Fax: (510) 835-7800
Attorneys for Defendant,
LBS STANFORD CHEVROLET CADILLAC
.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO
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2/ UNLIMITED JURISDICTION
aha ANDY SABERI, an individual, ) Case No.: CIV536294
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Plaintiff, )
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) NOTICE TO COURT AND ADVERSE
V. PARTY OF REMOVAL TO FEDERAL
5/319 n—
N 3 COURT.
LBS STANFORD CHEVROLET )
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CADILLAC, INC., a Michigan corporation, )
BI INTERSTATE AUTO TRANSPORTERS, )
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A INC. a Nevada corporation, BOGDAN ) Complaint Filed: November 18, 2015
DEDYK, doing business as SAFE AUTO ) Trial Date: None
)— M TRANSPORT, an individual, and DOES 1 )
through 25, inclusive, )
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BY FAN
Defendants. /
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TO THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, AND
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PLAINTIFF ANDY SABERI, DEFENDANT l3] INTERSTATE AUTO TRAN SPORTERS,
t—d
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INC” and to their attorneys of record.
Ix.)
O PLEASE TAKE NOTICE that a Notice of Removal of this action was filed in the United
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States District Court for the Northern District of California on April 22, 2016.
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.
A copy of th Notice of Removal is attached to this Notice as Exhibit “A” This Notice is being
NW filed with the San Mateo Superior Court.
(O A DATED: April 25, 2016 TOSCHI - SIDRAN - COLLINS - DOYLE
N Lil
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DAVID R. SIDR'AN
N \I THOMAS M. CROWELL
Attorneys for Defendant
N 00 LES STANFORD CHEVROLET CADILLAC
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Case No.: CIV536294 NOTICE TO COURT AND ADVERSE PARTY OF REMOVAL TO FEDERAL COURT.
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EXHIBIT
1
Case 4:16—cv-,-._-.'_'=03-YGR Document 12 Filed 05/01:)“ Page 1 of 11
DAVID R. SIDRAN (SBN 121063)
THOMAS M. CROWELL (SBN 1727.99)
TOSCHI - SIDRAN - COLLINS . DOYLE
51451011113011 Drive
Pleasanton,“CA 94588
Tel: (510) 835-3400
Fax: (510) 83S~7800
Attorneys for Defendant9
LES STANFORD CHEVROLET CADILLAC
UNITED STATES DlSTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANDY SABER}, an inlidual, Case No: 3:]6-CV-2203-YGR
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Plaintiff; ) LES STANFORD CHEVROLET
-
) CADILLAC NOTICE OF MOTION AND
v. ) MOTlON T0 DISMISS COMPLAINT;
~ , 1 ) MEMORANDUM OF POINTS AND
LBS STANFORD CHEVROLET .
) AUTHORITIES
CADILLAC, INC, a Michigan corporarlml, ‘) .
4 .
B1 INTERSTATE 'AUTO 'l‘RANSPOR'l’Elisl ) (FRCP Rules 12b}; 12b6)
INC. 3 Nevada corporation, BOGDAN ' )
,DEDYK5 doing business as SAFE AUTO ) DATE: June 16, 2016
TRANSPORT, an individual, and DOES -l ,) TIME: 9:30: am.
through 25, inclusive, ) DEPT: C
) JUDGE: Honorable Magistrate
'
Judge
Defendants. ) Laurel Beeler
) _
) Complaint Filed: November 18, 2015
/‘ Trial Date; None
NOTICE OF MOTION AND MOTION
TO ALL PARTIESAND THEIR ATTORNEYS OF RECORD:.
PLEASE TAKELNOTICE that On June 16', 2016 at .9230 mm. or as soon thetéz‘ifier as the
matter may be} heard, before the Honorable Magistrate Judge Laurel Beeler, United States Districl
,JUdge, in Courtroom ’Clof'tlie ab0vca-cnlitled court, located on the fifieenthv floor of the San
_
Francisco Courthouse, 450. Golden Gate Ave, San Francisco, CA. 94102, Defendant LES.
STANFORD CHEVROLET lNC. (hereihafier “‘Djefe‘ndant”) shall incive, and does hereby move,
pursuant to pursuant to Rules 12(b)( 1) and 12(1))(6) of the Federal Rulcsof'Civil Procedure, for an
order dismissing without leave to amend cumin portiOnsv of Plaintiffs’ complaint, and-lo dismiss
‘
3:16.Cv.2203vca'
Case No.: LES STANFORD CHEVROLET CQILLACNOTICE OF MOTION AND
MOTION TO msmtss COMPLAINT; MEMORANDUM OF rom'rsnun AUTHORITIES
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case 4216-CV-UZZU3-YUH Document ll l—Iled Ub/Ub/lb Page 1 OT 19
JAMES M. DOMBROS‘RI (SBN 56898)
LAW OFFICE OF JAMES M. DOMBROSKI
Post Office BOX 751027 .
~
Petaluma, CA. 94975
Tel. (707) 762-7807
Fax. (707) 769-0419
.
Email: jdomski@aol.com
snowit
THOMAS I. SABERI, ESQ. SB
LAW OFFICE OF WILLIAM H. PAYNTER
1045 AirpOrt Blvd, Suite 12
So. San Francisco, CA 94080
00""
Telephone: (650) 588-2428
0 Facsimile: (650) 873-7046
Email: tsaberi@aol.com
~
Attorneys for Plaintiff ANDY SABERI.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANDY SABERI, an individual, Case No. 4:16-cv-2203-YGR
Plaintiff, i
PLAIN'I‘IFF’S N'U'l'ICE OF MOTION
vs.
FOR REMAND AND MEMORANDUM
OF POINTS AND AUTHORITIES;
i DECLARATION OF JAMES M.
LES STANFORD CHEVROLET CADILLAC. i)
INTERSTATE ) DOMBRUSKI; [PROPOSED] ORDER
INC, :1 Michigan corporation, BJ
AUTO TRANSPOR'I'ERS. INC. Nevada 21
) GRANTING MOTION TO REMAND;
corporation, BOGDAN DEDYK, doing business
CERTIFICATE OF SERVICE
i
SAFE AI ITO TRANSPORT, an individual, and ) Date: June 21, 2016
as:
DOES 1 through 25, inclusive, ) Time: 2:00 p.m.
) Dept: Courtroom 1, 4th Floor
Defendants. ) Judge: Judge Yvonne Gonzalez Rogers
)
1 Coznplaint filed November 18, 2015
) Removal Petition filed April 22, 2016
NOTICE OF MOTION AND MOTION FOR REMAND
TO: ALL PAR'I'IES AND THEIR ATTORNEYS OF RECORD.
PLEASE TAKE NOTICE that in the courtroom of the Honorable Yvonne Gonzalez
Rogers, Courtroom 1, United States District Court. for the, Northern District of California, located
1
Plaintifl’s Notice of Motion fOr Remand and memorandum ofPoint‘s and Authorities;
Declaration ofJames M Dombroski; [Proposed] Order
Case 4:16-cv—04ct13-YGR Document 23 Filed 05/2U/16 Page 1 of 6
p—l
JAMES M. DOMBROSKI (SBN 56898)
N
LAW OFFICE OF JAMES M. DOMBROSKI
Post Office Box 751027
Pctaluma, CA. 94975
Tel. (707) 762-7807
Ox-m:-b-UJ
Fax. (707) 769-0419
Email: jdomski@aol.oom
THOMAS I. SABERI, ESQ. (SBN 169652)
LAW OFFICE OF WILLIAM H. PAYNTER
00.x] 1045 Airport Blvd., Suite 12
So. San Francisco, CA 94080
Telephone: (650) 588-2428
xo
Facsimile: (650) 873-7046
Email: tsaberi@aol.com
Attorneys for Plaintiff ANDY SABERI.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ANDY SABERI, an individual, Case No. 4:16—cv—2203-YGR
Plaintiff: PLAIN TIFF’S NOTICE OF MOTION
vs. FOR DEFAULT; MEMORANDUM OF
POINTS AND AUTHORITIES;
LES STANFORD CHEVROLET CADILLAC, DECLARATION OF JAMES M.
INC, a Michigan corporation, BJ INTERSTATE DOMBROSKI; [PROPOSED] ORDER
AUTO TRAN SPORTERS, INC, a Nevada GRANTING MOTION FOR DEFAULT;
corporation, BOGDAN DEDYK, doing business VVVUVVVVVVVVVVWVV
CERTIFICATE OF SERVICE
as SAFE AUTO TRANSPORT, an individual, and
DOES 1 through 25, inclusive,
$332: $366 [3213:2016
Dept: Courtroom 1,4th Floor
Defendants. Judge: Judge Yvonne Gonzalez Rogers
Complaint filed November 18, 2015
Removal Petition filed April 22, 2016
NOTICE OF MOTION AND MOTION FOR DEFAULT
TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD.
PLEASE TAKE NOTICE that in the courtroom of the Honorable Yvonne G0n2alez
Rogers, Courtroom 1, United States District Court for the Northern District of California, located
1
Plaintifl‘s Notice of Motion for Default and Memormzdum of Pomzs andAuthor tries,
Declaration ofJames M Dombroslci; [Proposed] Order
Case 4:16-cv-02203-YGR Document 23 Filed 05/20/16 Page 2 of 6
on the fourth floor of the Oakland Courthouse, 1301 Clay Street, Oakland, Califonria 94612.
Plaintiff will move for an order entering default against Defendant Les Stanford Chevrolet
Cadillac, Inc. and striking the motion to diSmiss by Defendant Stanford Chevrolet Cadillac, Inc.
Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure and supporting case law,
Plaintiff requests that the Court enter default against Defendant Les Stanford Chevrolet Cadillac,
Inc. and strike the motion to dismiss by Defendant Les Stanford CheVrolet Cadillac, 1110., set for
hearing on June 2], 2016. This motion is based upon the pleadings and rec0rds on file in this
'
case, the Memomndum of Law, supporting decl. -
ttached hereto, and such other matters
and argument as the Court may cansider and a r hearing of this motion.
DATED: May 16, 2016.
’)
Plainn‘fl’s Notice ofMotion for Default and Memorandum ofPoints and Authorities:
Declaration ofJames M. Dombroski; [Proposed] Order
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”1? DAVIDR. SIDRAN (SBN 121063) THOMAS M. CROWELL (SBN 172799) TOSCHI, SIDRAN, COLLINS &VDOYLE 5145 Johnson Drive FELED Pleasanton, CA 94588 SAN MATEO COUNTY Tel: (510) 835-3400 Fax: (510) 835-7800 JU ' 2016 3 (ll upenor Attorneys for Defendant, LES STANFORD CHEVROLET CADILLAC By 2 “DEW" CLERK \OOO\)O\ SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO UNLIMITED JURISDICTION ANDY SABERI, an individual, Case No.: CIV536294 10 Plaintiff, 1.1 v. DECLARATION OF THOMAS M. 12 CROWELL IN SUPPORT OF LES STANFORD CHEVROLET DEFENDANT LES STANFORD 13 CADILLAC, INC., a Michigan corporation, CHEVROLET CADILLAC’S EX PARTE B] INTERSTATE AUTO TRANSPORTERS, APPLICATION TO: 14 INC. a Nevada corporation, BOGDAN DEDYK, doing business as SAFE AUTO 1) Set Aside Default 15 TRANSPORT, an individual, and DOES 1 ALTERNATELY through 25, inclusive, 2) For Order Shortening Time to Notice And Hear Motion to Set \VVVVVVVVVVVVVVVVVVVVVVV 16 Aside Default And to Drop Prove- Defendants. Up Hearing from Calendar 17 18 CIV536294 ‘ Date: July 22, 2016 DIS Declaration in Support I Time: 2:00 pm. l 19 34235 Dept: Law and Motion 20 g! lllllllllmllllllllllll Complaint Filed: November 18, 2015 2.1 Trial Date: None 22 23 I, Thomas M. Crowell, declare as follows: 24 1) I am an Attorney At Law licensed to practice before all the courts of the State of California. 25 I am Senior Counsel at the Law Offices of Toschi, Sidran, Collins & Doyle, Counsel of 26 Record for Defendant LES STANFORD CHEVROLET CADILLAC herein. I have been 27 the attorney responsible for this case since it was received in this office, and the following 28 -1- Case No.: C1V536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S l)Set Aside Default, etc. ‘ EX PARTE APPLICATION TO: facts are personally known to me through my work on the file and review of the papers and the dockets in the case, both at the State and Federal level. 2) I have notice of this application to all parties by facsimile letter on July 20, 2016 at about U‘I-D-UJN 4:30 pm. A true and correct copy of the notice letter and the confirmation is attached hereto as Exhibit “0.” The notice provided the date, time, location, and subject of the application. \OOO\]O'\ 3) Defendant brings this ex parte application to set aside an erroneously entered default. The Code of Civil Procedure allows a party 30 days from the date the Court receives notice of remand to file a response; the default was entered four days after that notice which is 10 entirely improper. 11 4) The attorneys for Plaintiff ANDY SABERI are: James M. Dombroski, Esq and Thomas I. 12 Saberi, Esq., I spoke to Mr. Dombroski and he opposes the Application. 13 The attorney for BJ Interstate Autotransporters, Inc. is James Attridge, Esq., I spoke to him 14 and he does not oppose the Application. 15 The Attorney for Bogdan Dedyk, dba Safe Auto Transport is Michael J. LeVangie, Esq., I 16 spoke to him and he does not oppose the Application. 17 5) The urgency of this ex parte application is that Plaintiff has set a default prove up for next 18 week. Going forward with the prove up will be an unnecessary expense to the Court and 19 Defendant when the default entered against it is obvious and manifest clerical error on the 20 part of the Clerk’s office. 21 6) Plaintiff filed his complaint on or about November 18, 2015. A true and correct copy of 22 the face page 0f the complaint, which is all that is relevant to this proceeding, is attached to 23 hereto as Exhibit “A.” 24 7) LES STANFORD was personally served in Michigan on March 24, 2016. A true and 25 correct copy of the proof of service is attached hereto Exhibit “B.” 26 8) LES STANFORD filed a Notice of Removal to the United States District Court on April 27 25, 2016. A true and correct copy of the face page is attached hereto as Exhibit “C.” 28 -2- Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO: l)Set Aside Default, etc. 9) In the Federal District Court, a flurry of motion practice occurred. What is important is that on May 2, 2016, LES STANFORD filed a Motion to Dismiss under FRCP Rule 12(b)(6.) A true and correct copy of the face page of this motion is attached hereto as A Exhibit “D.” Plaintiff also filed a Motion to Remand on May 6, 2016, a true and correct copy of the facepage of that motion is attached hereto as Exhibit “E”. Oddly enough, despite the fact that LES STANFORD had appeared in the action and filed a motion to \DOONONUI Dismiss, Plaintiff filed a motion for default on May 16, 2016. A true and correct copy of that motion is attached in its entirety hereto as Exhibit “F,” because the Court should understand that the pattern of filing legally and factually incorrect pleadings in both 10 Federal and State Courts. As indicated by the face page of Exhibit “F,” the District Court 11 Denied this motion four days later, by simply stamping “Denied” on the face page. 12 10) The Motion for Remand was granted by Order dated June 16, 2016, a true and correct copy 13 of the face page of the order is attached hereto as Exhibit “G.” 14 11) Plaintiff filed a “Notice of Entry of Order Granting Motion to Remand to Superior Court 15 ...” on June 17, 2016, a true and correct copy of the face page is attached hereto as Exhibit 16 “H”, as well as a true and correct copy of the June 17, letter from the District Court 17 remanding the matter.) 18 12) On June 21, FOUR DAYS LATER, plaintiff filed and served a request for entry of default 19 (a true and correct copy of this entire request is attached as Exhibit “H” to the Crowell 20 Dec.) 21 13) Defendant then received a “Notice of Entry of Default,” dated June 24, 2016, 22 demonstrating that that the Clerk’s office had actually entered the Default. A true and 23 corrct copy of this “Notice of Entry of Default is attached hereto as Exhibit “1.” The Court 24 should note well that the Request for Default itself mentions that LES STANFORD was 25 served March 24, 2016, (Exhibits H and 1, Paragraph 1.0) but fails to mention that the 26 matter had been removed to Federal Court and subsequently remanded. 27 14)I called the Clerk’s office to alert them that they had made a clerical or ministerial error in 28 entering the default because the time for Defendant to respond to the Complaint had not -3- Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO: 1)Set Aside Default, etc. expired. The Clerk’soffice instructed me to send a letter to the Clerk’s office. I drafted a letter to the Clerk, a true and correct copy of which is attached hereto as Exhibit “J,” which was also copied to Plaintiff’s Counsel. Another letter, a true and correct copy of which is attached hereto as Exhibit “K,” was also sent directly to Plaintiff’ s counsel asking them to set aside the default because it had been erroneously requested and entered. 15) Rather than do the right thing, Plaintiff” s counsel sent a fuming opposition letter to the Clerk’s office, claiming that Exhibit “J” was an improper ex parte communication with the \OOONONUIA Court (despite their receiving it, clearly, because it was copied to them) and presenting a factually and legally incorrect argument for why the default should be entered. A true and 10 correct copy of that letter is attached hereto as Exhibit “L.” 11 16) I called the Clerk’s office back, and was told that the matter had been submitted to the 12 Presiding Judge. However, on July 18, 2016, Defendant received notice of a prove up 13 hearing, set for July 26, 2016. A true and correct copy of this notice is attached hereto as 14 Exhibit “M.” Defendant can wait no longer and must therefore put this matter before a 15 judge, have the Court set the default aside, and allow Defendant to file its initial pleading, 16 which will be a demurrer to the Complaint. 17 17) Attached hereto as Exhibit “N” is a true and correct copy of the Memorandum of Points 18 and Authorities in support of the Demurrer Defendant proposed to file once the default is 19 set aside. 2o The foregoing is true and correct under penalty of perjury under the laws of the State of California. 21 22 23 24 DATED: July 21, 2016 By: /‘ / //// TOSCHI - SI RAN , DA‘VID’R. SIDRAN - OLLINS - DOYLE 25 THOMAS M. CROWELL Attorneys for Defendant 26 LES STANFORD CHEVROLET CADILLAC 27 28 -4- Case No.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’S EX PARTE APPLICATION TO: l)Set Aside Default, etc. EXHIBIT A Legal Tabs Co. 1-300-322-3022 Recycled @ Stock # EXA-5-B JAMES M. DOMBROSKI (SEN 56898) LAW OFFICE OF JAMES M. 19 DOMBRO 3m: Post Office Box 751027 ' Petaluma, CA. 94975 ; Tel. (707) 762-7807 ; : ENDQHSED WEED Fax. (707) 769-0419 _ ~ 5 > SAN MATEO COUNTY . ’ ’ . , THOMAS I.SABER1,ESQ.SB ' Nov 1 8 2015 - LAW OFFICE OF WILLIAM H. MW ~ PAYNTER 3 lg. O Mm 1045 Ailport Blvd, Suite 12 I 3; magma 80. San Francisco, CA 94080 O OEPUTV CLERK I Telephune: (650) 588-2428 Facsimile: (650) 873~7046 ‘ Attomeys for PlainfiffANDY ' SAEgERI. SUPERIOR (:m OF THE 3mm OF CALIFORNIA INAND FOR THE COUNT?! OF SAN MATEO .. UILILIMITED IORISDICTION ~ ..- -. * . ANDY SABERIgaflndividfiél,’ ' g - - CASE NO. O my 5~ ‘3 t 6 31.9.4 _ ,; ” ' ~ ~ PIaintlff, .. vs. . ' A I commtm FORDAMAOES ;‘ (Jury Trial}? Demanded) . LES STANFORD CHEVROLET CADILLAC. INC, a Michigan corporation, 3] ETERSTAT AUTO WSPQRTERS, INC., corpmatiOn, BQGDANDEDYK. a§Nevada I ~ ; .~---,BYFA><~-fjs ‘ * - doing. . business as'BAFE AUTO TRANSPORT, 331i individual, and DOES 1 through 25; inclusive; 3 Defendants. 3 . Plainfifl: Andy Saber]. Ollegcs asfoflows: . E . ' 1. .Plaintifi’Andy Saber} (hereinafier “85.19.14? is'an individual . located in San Mateo County; California. .I ‘ 2. Defendant Les Stamford Chevrolet . Caaiuao, Inc. (hereinafier “Les Stanford'f). at all times herein mentioned, is IOOated £t21730 Michigaxj'Avenne, Dearbbm, Michigan 48124. Upon l Comjylalnlfor Dafimgu P98- 010 ”KERR cu mm v without #1165153; radii; S‘fifi'ék'm-u .u. James Dombroski, sen 56898 ...-..- "III/'09“ F SAN MATEO COUNTY irofinflflé cg Law Oitlces of Thomas Saberi 104t5 Airport Blvd. South San Francisco. CA 94080 Mist-none no; (650} 588-2428 ATioflNil‘v‘ run (mum, Plaintiff SUPERIOR COURT or CALIFORNIA. coumv as San Mateo 400 County Center Redwood Cilv CA 94063-1655 ' .. mmnmammomm Andv Saberi individual 'cérvli'wm CIV 536294 DEFkNDANICRESPONDE-‘JT Chevrolet Cadillac. et al Rel \‘o ::r We rm PROOF OF SERVICE OF summons none 1. At the time of. Icrvico I was a citizen oi the United States, at least 18 years oi ago and not a party to this action. 2- lservod copies of: Summons. Civil Case Cover Sheet, Complaint for Damages, Notice of Case Management Conference, ADR info , Case Manegement Statement 3. 8- Patty served: Les Stanford Chevrolet Cadillac. inc.. 3 Michigan Corporation BY FAX 0. Person Served: Scott Montgomury. h'lztrtagcr - Person Authorized to Accept Service oi'i’roccxs 4. Address where the party was served: 21730 Michioan Avenue Dearborn. Mi 48124 01 . i served the party i personally delivered the documents listed in item 2 to the party or person nuthorired to a. by personal service. receive service of process for the party ('1) (Inmate): 03/24/2016 (2) marine): 2:05PM 0. The "Notice to the Person Served" (on the summons) was completed as follows: d. on helmli oi: Les Stanford Chevrolet CadIllnrz. Inc.. a Michigan Corporation under: CCP 416.10 (corporation) 7. Person who served papers a. Name: Jason Schmaus h. Address: One LetIai - ”ted-Marin 504 Redwood Blvd 1:223 Novalo, CA 94947 0. Telephone number: .11549143505 (1. The tee {or service was: :5 24995 e. lam: (1) Not oregrstered Caiitomizi process Server. . ..., ... t3. idecinre under penaltv of perjury under the laws oi the United States at America: that the loreoornq‘IS inn: and correct. Date: 04/06/2016 ’V/ Jason Schmaus l.!l;0_l_PEST-0‘: \VNQ fl: RVFI? I‘J’I'l .101). LA 44/ “3::--G.‘IAII}RI} Cutv)l|:r1:"mn-f~llt‘)~‘7'\l Inw Jutlt 122:2 PROOF OF SERVICE OF SUMMONS 10197045 A AVERY" (D Q18 RECYCLED PAPER MADE FROM 20% POST CONSUMER CONTENT o I: “.3 3: xl.l.l DAVID R. SIDRAN (SBN 121063) ~ i THOMAS M. CROWELL (SBN 172799) TOSCHI, SIDRAN, COLLINS & DOYLE 31-45 “mamas easanton, Tel: (510) 835~3400 . - : F I, E D SAN MATE °°°””" A P R 2 5 2016 JIt ' \OOO'QQUl-eJNH Fax: (510) 835-7800 Attorneys for Defendant, LBS STANFORD CHEVROLET CADILLAC . SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO Otevkofth p u 0 u“ / 2/ UNLIMITED JURISDICTION aha ANDY SABERI, an individual, ) Case No.: CIV536294 )—I C ) ' Plaintiff, ) h—t v-‘ ) NOTICE TO COURT AND ADVERSE V. PARTY OF REMOVAL TO FEDERAL 5/319 n— N 3 COURT. LBS STANFORD CHEVROLET ) I—I W CADILLAC, INC., a Michigan corporation, ) BI INTERSTATE AUTO TRANSPORTERS, ) r—I A INC. a Nevada corporation, BOGDAN ) Complaint Filed: November 18, 2015 DEDYK, doing business as SAFE AUTO ) Trial Date: None )— M TRANSPORT, an individual, and DOES 1 ) through 25, inclusive, ) r—- O\ ) BY FAN Defendants. / r—t \1 TO THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN MATEO, AND t—n 00 PLAINTIFF ANDY SABERI, DEFENDANT l3] INTERSTATE AUTO TRAN SPORTERS, t—d KO INC” and to their attorneys of record. Ix.) O PLEASE TAKE NOTICE that a Notice of Removal of this action was filed in the United N r-‘ States District Court for the Northern District of California on April 22, 2016. NN . A copy of th Notice of Removal is attached to this Notice as Exhibit “A” This Notice is being NW filed with the San Mateo Superior Court. (O A DATED: April 25, 2016 TOSCHI - SIDRAN - COLLINS - DOYLE N Lil N 0\ DAVID R. SIDR'AN N \I THOMAS M. CROWELL Attorneys for Defendant N 00 LES STANFORD CHEVROLET CADILLAC -1- Case No.: CIV536294 NOTICE TO COURT AND ADVERSE PARTY OF REMOVAL TO FEDERAL COURT. A AVERY m (D {gfi RECYCLED PAPER MADE FROM 20% POST CONSUMER CONTENT D EXHIBIT 1 Case 4:16—cv-,-._-.'_'=03-YGR Document 12 Filed 05/01:)“ Page 1 of 11 DAVID R. SIDRAN (SBN 121063) THOMAS M. CROWELL (SBN 1727.99) TOSCHI - SIDRAN - COLLINS . DOYLE 51451011113011 Drive Pleasanton,“CA 94588 Tel: (510) 835-3400 Fax: (510) 83S~7800 Attorneys for Defendant9 LES STANFORD CHEVROLET CADILLAC UNITED STATES DlSTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANDY SABER}, an inlidual, Case No: 3:]6-CV-2203-YGR g Plaintiff; ) LES STANFORD CHEVROLET - ) CADILLAC NOTICE OF MOTION AND v. ) MOTlON T0 DISMISS COMPLAINT; ~ , 1 ) MEMORANDUM OF POINTS AND LBS STANFORD CHEVROLET . ) AUTHORITIES CADILLAC, INC, a Michigan corporarlml, ‘) . 4 . B1 INTERSTATE 'AUTO 'l‘RANSPOR'l’Elisl ) (FRCP Rules 12b}; 12b6) INC. 3 Nevada corporation, BOGDAN ' ) ,DEDYK5 doing business as SAFE AUTO ) DATE: June 16, 2016 TRANSPORT, an individual, and DOES -l ,) TIME: 9:30: am. through 25, inclusive, ) DEPT: C ) JUDGE: Honorable Magistrate ' Judge Defendants. ) Laurel Beeler ) _ ) Complaint Filed: November 18, 2015 /‘ Trial Date; None NOTICE OF MOTION AND MOTION TO ALL PARTIESAND THEIR ATTORNEYS OF RECORD:. PLEASE TAKELNOTICE that On June 16', 2016 at .9230 mm. or as soon thetéz‘ifier as the matter may be} heard, before the Honorable Magistrate Judge Laurel Beeler, United States Districl ,JUdge, in Courtroom ’Clof'tlie ab0vca-cnlitled court, located on the fifieenthv floor of the San _ Francisco Courthouse, 450. Golden Gate Ave, San Francisco, CA. 94102, Defendant LES. STANFORD CHEVROLET lNC. (hereihafier “‘Djefe‘ndant”) shall incive, and does hereby move, pursuant to pursuant to Rules 12(b)( 1) and 12(1))(6) of the Federal Rulcsof'Civil Procedure, for an order dismissing without leave to amend cumin portiOnsv of Plaintiffs’ complaint, and-lo dismiss ‘ 3:16.Cv.2203vca' Case No.: LES STANFORD CHEVROLET CQILLACNOTICE OF MOTION AND MOTION TO msmtss COMPLAINT; MEMORANDUM OF rom'rsnun AUTHORITIES A AVERY ”“ OD (E149 RECYCLED PAPER MADE FROM 20% POST CONSUMER CONTENT LLI t: ‘2 :1: >< LLI case 4216-CV-UZZU3-YUH Document ll l—Iled Ub/Ub/lb Page 1 OT 19 JAMES M. DOMBROS‘RI (SBN 56898) LAW OFFICE OF JAMES M. DOMBROSKI Post Office BOX 751027 . ~ Petaluma, CA. 94975 Tel. (707) 762-7807 Fax. (707) 769-0419 . Email: jdomski@aol.com snowit THOMAS I. SABERI, ESQ. SB LAW OFFICE OF WILLIAM H. PAYNTER 1045 AirpOrt Blvd, Suite 12 So. San Francisco, CA 94080 00"" Telephone: (650) 588-2428 0 Facsimile: (650) 873-7046 Email: tsaberi@aol.com ~ Attorneys for Plaintiff ANDY SABERI. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANDY SABERI, an individual, Case No. 4:16-cv-2203-YGR Plaintiff, i PLAIN'I‘IFF’S N'U'l'ICE OF MOTION vs. FOR REMAND AND MEMORANDUM OF POINTS AND AUTHORITIES; i DECLARATION OF JAMES M. LES STANFORD CHEVROLET CADILLAC. i) INTERSTATE ) DOMBRUSKI; [PROPOSED] ORDER INC, :1 Michigan corporation, BJ AUTO TRANSPOR'I'ERS. INC. Nevada 21 ) GRANTING MOTION TO REMAND; corporation, BOGDAN DEDYK, doing business CERTIFICATE OF SERVICE i SAFE AI ITO TRANSPORT, an individual, and ) Date: June 21, 2016 as: DOES 1 through 25, inclusive, ) Time: 2:00 p.m. ) Dept: Courtroom 1, 4th Floor Defendants. ) Judge: Judge Yvonne Gonzalez Rogers ) 1 Coznplaint filed November 18, 2015 ) Removal Petition filed April 22, 2016 NOTICE OF MOTION AND MOTION FOR REMAND TO: ALL PAR'I'IES AND THEIR ATTORNEYS OF RECORD. PLEASE TAKE NOTICE that in the courtroom of the Honorable Yvonne Gonzalez Rogers, Courtroom 1, United States District Court. for the, Northern District of California, located 1 Plaintifl’s Notice of Motion fOr Remand and memorandum ofPoint‘s and Authorities; Declaration ofJames M Dombroski; [Proposed] Order Case 4:16-cv—04ct13-YGR Document 23 Filed 05/2U/16 Page 1 of 6 p—l JAMES M. DOMBROSKI (SBN 56898) N LAW OFFICE OF JAMES M. DOMBROSKI Post Office Box 751027 Pctaluma, CA. 94975 Tel. (707) 762-7807 Ox-m:-b-UJ Fax. (707) 769-0419 Email: jdomski@aol.oom THOMAS I. SABERI, ESQ. (SBN 169652) LAW OFFICE OF WILLIAM H. PAYNTER 00.x] 1045 Airport Blvd., Suite 12 So. San Francisco, CA 94080 Telephone: (650) 588-2428 xo Facsimile: (650) 873-7046 Email: tsaberi@aol.com Attorneys for Plaintiff ANDY SABERI. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ANDY SABERI, an individual, Case No. 4:16—cv—2203-YGR Plaintiff: PLAIN TIFF’S NOTICE OF MOTION vs. FOR DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; LES STANFORD CHEVROLET CADILLAC, DECLARATION OF JAMES M. INC, a Michigan corporation, BJ INTERSTATE DOMBROSKI; [PROPOSED] ORDER AUTO TRAN SPORTERS, INC, a Nevada GRANTING MOTION FOR DEFAULT; corporation, BOGDAN DEDYK, doing business VVVUVVVVVVVVVVWVV CERTIFICATE OF SERVICE as SAFE AUTO TRANSPORT, an individual, and DOES 1 through 25, inclusive, $332: $366 [3213:2016 Dept: Courtroom 1,4th Floor Defendants. Judge: Judge Yvonne Gonzalez Rogers Complaint filed November 18, 2015 Removal Petition filed April 22, 2016 NOTICE OF MOTION AND MOTION FOR DEFAULT TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD. PLEASE TAKE NOTICE that in the courtroom of the Honorable Yvonne G0n2alez Rogers, Courtroom 1, United States District Court for the Northern District of California, located 1 Plaintifl‘s Notice of Motion for Default and Memormzdum of Pomzs andAuthor tries, Declaration ofJames M Dombroslci; [Proposed] Order Case 4:16-cv-02203-YGR Document 23 Filed 05/20/16 Page 2 of 6 on the fourth floor of the Oakland Courthouse, 1301 Clay Street, Oakland, Califonria 94612. Plaintiff will move for an order entering default against Defendant Les Stanford Chevrolet Cadillac, Inc. and striking the motion to diSmiss by Defendant Stanford Chevrolet Cadillac, Inc. Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure and supporting case law, Plaintiff requests that the Court enter default against Defendant Les Stanford Chevrolet Cadillac, Inc. and strike the motion to dismiss by Defendant Les Stanford CheVrolet Cadillac, 1110., set for hearing on June 2], 2016. This motion is based upon the pleadings and rec0rds on file in this ' case, the Memomndum of Law, supporting decl. - ttached hereto, and such other matters and argument as the Court may cansider and a r hearing of this motion. DATED: May 16, 2016. ’) Plainn‘fl’s Notice ofMotion for Default and Memorandum ofPoints and Authorities: Declaration ofJames M. Dombroski; [Proposed] Order .nosou-~4 4=1sweetnessnnrlnosansssss 016