Preview
SAN MATEO cot-3NW
NOV 29 2016 -
5
Attomeys for
LES STANFORD Defendant,
CHEVROLET
CADILLAC
SUPERIOR
COURT OF
CALIFORNIA, CO UNTY
OF SAN
UNLIMITED MATEO
ANDY SABERI, JURISDIC TION
an individual,
:2E.E—é. F;
) Case No.:
) CIV536294
V
)
) 0L
LLAC, INC, a ) T
Michigan
PARTION
OPPOSITION
c
) L
\
RSTATE AUTO corporation, a T0
Nevada )
corporation,TRANSPORTERS,
BOGD )
, doing business
SPORT, an as SAFE ) AND
individual, and A T
, inclusive, DOES I )
)
) Date:
Defendants. ) Time.
) ept:
)
)
)
.
20 Clvs36294 ) nal
gigosition filed ))
273 on
)
)
/
I/l/[Will/III!IIIIl/IIII/Il/II/I/IIll
Defendant LES STANFORD
CHEVROLET
CADILLAC (“LES
STANFORD”)
hereby
CADIL ’
IN
HE ONORABLE OSITION
GERALD J.
BUCHWALD
1. STATEMENT OF FACTS
The facts related to this defendant are different than those related to the other two
AWN defendants. Rather than refile all of the papers reference below, the Court is directed to
Defendants Ex parte Application to Set Aside the Default, and the Declaration of Thomas M.
Crowell supporting that application, which should be on file. Even if not, as will be demonstrated
below, this is background information and what really matters is that the order granting the
motions
\OOO\10\M
and petitions to set aside the default makes it clear that relief was not granted to this
Defendant under C.C.P §473 and sanctions are not available under §473(c)(1).
- Plaintiff filed his complaint on or about November 18, 2015. A copy of the face
1o 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.”
12 - LES STANFORD was personally served in Michigan on March 24, 2016. The
13 proof of service is attached to the Crowell Dec as Exhibit “B.”
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.”
16 - 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 FRCP 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 0 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.: CW536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ lNC.’S PARTION OPPOSITION
T0 PLAINTIFF S “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD
AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(l).
“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
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 “I” to the Crowell Dec.) The Court should note
well that
\OOOflQUl-P-
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
Federal Court and subsequently remanded.
° LES STANFORD’S Counsel called the Clerk’s office to alert them that they had
1o 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 Plaintiffs Counsel. A letter, attached to the Crowell Dec. as
14 Exhibit “K,” was also sent directly to Plaintiffs counsel asking them to set aside the default
15 because it had been erroneously requested and entered.
16 ~ Rather than do the right thing, Plaintiffs 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.”
21 o 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 There were then multiple hearings before Judge Buchwald. Ultimately, the Court set aside
27 all of the defaults. With respect to LES STANFORD CHEVROLET, the Court found that “the
28 Clerk of this Court’s entry of default was an error and must be vacated and set aside.” (Order
CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION
TO PLAINTIFFS “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD
AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(l).
Granting Defendants Les Stanford Chevrolet Cadillac, BJ Interstate Auto Transporters Inc. and
Bogdan Dedyk dba Safe Auto Transport’s Applications and motions to Set Aside Defaults, filed
October 14, 2016 and attached to Plaintiff’s Motion, P. 2:14-16.) The Court also set aside the
other defendant’s defaults, and noted that Plaintiff had made an “oral request for sanctions which
was denied without prejudice.”
KOOOQO‘UI-bmwv—t
Therefore, the short answer is that the default was entered erroneously against this
Defendant by the Clerk of this Court, Judge Buchwald recognized that and had it set aside.
Plaintiff now moves for sanctions against all parties under C.C.P §473(c)(1).
II. ARGUMENT
a. Defendant Questions Whether the Presiding Judge Should Rule On the
Sanctions Portion of This Motion.
Judge Buchwald had three hearings on the motions and applications for which Plaintiff
now seeks sanctions. Judge Buchwald knows what happened, and why the motions and
applications were granted, and knows why he denied Plaintiff’s oral request for sanctions without
prejudice.
Plaintiffs bare-bones motion gives this judge little knowledge or understanding as to why
sanctions should be granted, why they weren’t requested with the original motions, and why they
should be granted now.
NNNNNNNNNv—Ir—tt—Ip—av—HHu—AHv—t There is no declaration setting forth the amount of sanctions sought or
justifying the amount, no billing records, nothing.
Wflam-PWND—‘OCWQQUIAUJN—‘O
It almost looks like it should be a motion for reconsideration, which should definitely be
heard by Judge Buchwald.
While Defendant will demonstrate that the motion should be denied as to this Defendant, it
does seem that Judge Buchwald should hear it.
b. The Court Cannot Sanction LES STANFORD CHEVROLET CADILLAC,
INC. When the Default Against it Was Due to Plaintiff’s and the Clerk’s
Error, Not Defendant or its Counsel.
The Court in this matter made a finding that it was improper for the Clerk of the Court to
enter a default against LES STANFORD CHEVROLET CADILLAC, INC. The reason it was
improper was because LES STANFORD CHEVROLET CADILLAC, INC was not in default! A
.4-
CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION
TO PLAINTIFFS “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD
AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(1).
responsive pleading in the form of a motion to dismiss had been filed in Federal Court, but before
it had been ruled on, Plaintiffs motion to remand was granted.
Judge Buchwald focused on the theory that the motion to dismiss was still pending and was
m:
amuw-a
the operative pleading, and that therefore Defendant was not in default. Defendant’s focus during
_..,
the prior motion practice was that under §430.90, Defendant had 30 days from the remand to file a
\oooxlmmhww...‘
n—zvav‘
emwm.
responsive pleading, which Defendant intended to be a demurrer. Because Plaintiff requested and
....
the Clerk entered default before that time elapsed, the default was improper.
Under either theory, the default had been improperly entered and it was properly set aside
by the Court. It was not set aside because of attorney or party error! While that may have been
the case with the other Defendants (and this Defendant takes no position on that subject,) it
certainly doesn’t apply to this Defendant. .
Plaintiff moves for sanctions under C.C.P §473(c)(1). That section states:
(1) Whenever the court grants relief from a default, default judgment, or dismissal
based on any of the provisions of this section, the court may do any of the
following:
(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an
offending attorney or party.
(B) Direct that an offending attorney pay an amount no greater than one
thousand dollars ($1,000) to the State Bar Client Security Fund.
(C) Grant other relief as is appropriate.
NNNNNNNNNh—lr—‘p—au—nr—av—Ip—Ii—nv—Av—t
(C.C.P §473(c)(l) (emphasis added.)
WQQMAWNHONOOOQQUl-PWNHO
Section 473(b) covers setting aside a default. It states that “The court may, upon any terms
as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order,
or other proceeding taken against him or her through his or her mistake, inadvertence,
surprise, or excusable neglect.” (C.C.P §473(b)(1) (emphasis added.»
Defendant readily admits that, as a “Hail Mary” play, it included an argument for relief
under §473 in one of the pleadings filed with the Court. However, 473 (c)(l) states that sanctions
are available when the default is set aside under the provisions of this section. In this Defendant’s
case, the relief was not provided under section 473, but rather because the default was erroneously
-5-
CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION
TO PLAINTIF F S “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD
AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(1).
.
We
“May
.«~
Eentered by- the Clerk of the Court. Since relief was not granted under §473 as to this Defln'dant,
:sanctions are unavailable under §473(c)(1.) The order granting the motions and applications,
gattached to Plaintiff’s motion, makes that perfectly elear.
That’s it. It’s that simple. The motion-must be denied asto this Defendant.
c. LES STANFORD CHEVROLET CADILLAC, INC. Has No Objection to
f
I
\OOOVONUI-hwlo
Assigningithe Case to Judge Buchwald.
Defendant does not believe that Plaintiff has follOwed the'proper procedure in combining
these twomotions, or‘in' requesting single assignment, but really is‘quite' 'fm‘e'with having’th’e
matter assigned the Judge Buchwald.
'
111. CONCLUSION
’10 ‘
I.
For the: reasons stated above, the motion for sanctiOns as to this Defendant must be denied. n
-
'11‘
Defendant takesno position on the: motion for single assignment but does not object to the case
12
being assigned to Judge Buchwald. Vul-mfiw.~7T-+C$Lm7fi\-
‘13
Respectfully submitted.
14
1752
iDA’TED; November 29-, 2016 TOSCHIa s- RAN- 0 'LINS- DOYLE
16 ;
17;
By:
18‘ DAVID R. SIDRAN
THOMAS M CROWELL
19, Attorneys for Defendant
LES STANFORD CHEVROLET CADILLAC
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2-7
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CASE N03 CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC" 'INC.’S PARTION OPPOSITION
TO PLAINTIFF S “MOTION;FORAORDERASSIGNING THIS CASE TO THE‘HONORABLE GERALD J. BUCHWALD
AND MOTION FOR ATTORNEY’S‘FEES PURSUANTTO C.C.P\§473(C)(l).
)——I
PROOF OF SERVICE
SABERI’V. LES STANFORD CHEVROLET CADILL_AC ET AL.
San Mateo Superior Court Case No.,: ‘CIV536294
I,the undersigned, am eniplOyed in the County of Alameda, State of California. I am over
the age of 18 and not‘a' party to the. within action; my business addrws isToschi, Sidran, Collins
”woooqéxmkmu‘w
'& Doyle, 5145 Johnson Drive, Pleasanton, California 94588.
I.“
OnLNovember 29, 2016, I served the within: W.
...
DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION
...e
OPPOSITION TO PLAINTIFFS “MOTION FOR ORDER ASSIGNJNGTHISCA8E TO “MW
THE HONORABLE GERALD J BUCHWALD AND MOTION FOR ATTORNEY’S' News
FEES PURSUANT T0 0. (2.1? §473(C)(1).
MAILs placing a true copy thereof enclosed 1n a sealed envelope with postage
.mwhm.‘
I
.‘BY
X
thereon fully prepaid 1n the United States mail at Pleasanton, California, to the person(s) ”..Ws
at the address(es) as set forth below.
' :1
X BY ELECTRONIC MAIL (E -MAIL): By electronically mailing an Adobe .pdf
version from e-mail address Kmithkeaw@toschisidran. com via Toschi, Sidran Collins
& Doyle’s electronic mail system to the person(s) at the e-mail address(es) as set forth ...-«5W
below.
NHOKDOOQONUI-h-WNV-‘O
NNNI—tn—‘Hp—bu—twt—tI—‘Hw
Wawwxmgngr,»
PLEASE SEE SERVICE LIST
I declare under penalty of perjury under the laws of the State of California that the
N0v‘ember 29,
yummy“.
foregoing is true and correct. and that this declaration was eXecuted on 20161 in
Pleasanton, California
,:
mic”
Kharyl @hkeav/J
U3
NNNN
\IONUIA
28
.
Toscm - SIDRAN
Doug
COLLINS
5
A PROIESSIQNAL OUR .FILE NO.: "11052 PROOF OF SERVICE
CORPORATION
l
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SERVICE LIST
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SABERI v. LES STANFORD CHEVROLET CADILLAC ET AL.
San Mateo Superior Court Case No.: CIV536294
8
9
ATTORNEY FOR PLAINTIFF ATTORNEY FOR PLAINTIFF
10 ANDY SABER] ANDY SABER]
11
James M. Dombroski, Esq. Thomas I. Saberi, Esq.
12 Law Office of James M. Dombroski Law Office of William H. Payner
Post Office Box 751027 1045 Ariport Blvd. Suite 12
13 Petaluma, CA 94975 So. San Francisco, CA 94080
Tel: (707) 762-7807 Tel: (650) 588-2428
14 Fax: (707) 769-0419 Fax: (650) 873-7046
15
ATTORNEY FOR BJ INTERSTATE AUTO ATTORNEY FOR BJ INTERSTATE AUTO
l6 TRANSPORTER’S, INC. and BOGAN TRANSPORTER’S, INC.
DEDYK
17 James Attridge
Michael John LeVangie Law Office of James Attridge
18 LeVangie Law Group, LLP 270 Divisadero St.#3
2021 N St San Francisco, CA 94117
19 Sacramento, CA 95811 Tel: (415) 552-3088
Tel: (916) 443-4849 jattridge@attridgelaw.com
20 Fax: (916) 443-4855
21
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$5531.; 73:22;
'2'
A"0,4,0“ OUR FILE No.: 11052 PROOF OF SERVICE
Preview
SAN MATEO cot-3NW NOV 29 2016 - 5 Attomeys for LES STANFORD Defendant, CHEVROLET CADILLAC SUPERIOR COURT OF CALIFORNIA, CO UNTY OF SAN UNLIMITED MATEO ANDY SABERI, JURISDIC TION an individual, :2E.E—é. F; ) Case No.: ) CIV536294 V ) ) 0L LLAC, INC, a ) T Michigan PARTION OPPOSITION c ) L \ RSTATE AUTO corporation, a T0 Nevada ) corporation,TRANSPORTERS, BOGD ) , doing business SPORT, an as SAFE ) AND individual, and A T , inclusive, DOES I ) ) ) Date: Defendants. ) Time. ) ept: ) ) ) . 20 Clvs36294 ) nal gigosition filed )) 273 on ) ) / I/l/[Will/III!IIIIl/IIII/Il/II/I/IIll Defendant LES STANFORD CHEVROLET CADILLAC (“LES STANFORD”) hereby CADIL ’ IN HE ONORABLE OSITION GERALD J. BUCHWALD 1. STATEMENT OF FACTS The facts related to this defendant are different than those related to the other two AWN defendants. Rather than refile all of the papers reference below, the Court is directed to Defendants Ex parte Application to Set Aside the Default, and the Declaration of Thomas M. Crowell supporting that application, which should be on file. Even if not, as will be demonstrated below, this is background information and what really matters is that the order granting the motions \OOO\10\M and petitions to set aside the default makes it clear that relief was not granted to this Defendant under C.C.P §473 and sanctions are not available under §473(c)(1). - Plaintiff filed his complaint on or about November 18, 2015. A copy of the face 1o 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.” 12 - LES STANFORD was personally served in Michigan on March 24, 2016. The 13 proof of service is attached to the Crowell Dec as Exhibit “B.” 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.” 16 - 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 FRCP 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 0 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.: CW536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ lNC.’S PARTION OPPOSITION T0 PLAINTIFF S “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(l). “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 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 “I” to the Crowell Dec.) The Court should note well that \OOOflQUl-P- 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 Federal Court and subsequently remanded. ° LES STANFORD’S Counsel called the Clerk’s office to alert them that they had 1o 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 Plaintiffs Counsel. A letter, attached to the Crowell Dec. as 14 Exhibit “K,” was also sent directly to Plaintiffs counsel asking them to set aside the default 15 because it had been erroneously requested and entered. 16 ~ Rather than do the right thing, Plaintiffs 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.” 21 o 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 There were then multiple hearings before Judge Buchwald. Ultimately, the Court set aside 27 all of the defaults. With respect to LES STANFORD CHEVROLET, the Court found that “the 28 Clerk of this Court’s entry of default was an error and must be vacated and set aside.” (Order CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION TO PLAINTIFFS “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(l). Granting Defendants Les Stanford Chevrolet Cadillac, BJ Interstate Auto Transporters Inc. and Bogdan Dedyk dba Safe Auto Transport’s Applications and motions to Set Aside Defaults, filed October 14, 2016 and attached to Plaintiff’s Motion, P. 2:14-16.) The Court also set aside the other defendant’s defaults, and noted that Plaintiff had made an “oral request for sanctions which was denied without prejudice.” KOOOQO‘UI-bmwv—t Therefore, the short answer is that the default was entered erroneously against this Defendant by the Clerk of this Court, Judge Buchwald recognized that and had it set aside. Plaintiff now moves for sanctions against all parties under C.C.P §473(c)(1). II. ARGUMENT a. Defendant Questions Whether the Presiding Judge Should Rule On the Sanctions Portion of This Motion. Judge Buchwald had three hearings on the motions and applications for which Plaintiff now seeks sanctions. Judge Buchwald knows what happened, and why the motions and applications were granted, and knows why he denied Plaintiff’s oral request for sanctions without prejudice. Plaintiffs bare-bones motion gives this judge little knowledge or understanding as to why sanctions should be granted, why they weren’t requested with the original motions, and why they should be granted now. NNNNNNNNNv—Ir—tt—Ip—av—HHu—AHv—t There is no declaration setting forth the amount of sanctions sought or justifying the amount, no billing records, nothing. Wflam-PWND—‘OCWQQUIAUJN—‘O It almost looks like it should be a motion for reconsideration, which should definitely be heard by Judge Buchwald. While Defendant will demonstrate that the motion should be denied as to this Defendant, it does seem that Judge Buchwald should hear it. b. The Court Cannot Sanction LES STANFORD CHEVROLET CADILLAC, INC. When the Default Against it Was Due to Plaintiff’s and the Clerk’s Error, Not Defendant or its Counsel. The Court in this matter made a finding that it was improper for the Clerk of the Court to enter a default against LES STANFORD CHEVROLET CADILLAC, INC. The reason it was improper was because LES STANFORD CHEVROLET CADILLAC, INC was not in default! A .4- CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION TO PLAINTIFFS “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(1). responsive pleading in the form of a motion to dismiss had been filed in Federal Court, but before it had been ruled on, Plaintiffs motion to remand was granted. Judge Buchwald focused on the theory that the motion to dismiss was still pending and was m: amuw-a the operative pleading, and that therefore Defendant was not in default. Defendant’s focus during _.., the prior motion practice was that under §430.90, Defendant had 30 days from the remand to file a \oooxlmmhww...‘ n—zvav‘ emwm. responsive pleading, which Defendant intended to be a demurrer. Because Plaintiff requested and .... the Clerk entered default before that time elapsed, the default was improper. Under either theory, the default had been improperly entered and it was properly set aside by the Court. It was not set aside because of attorney or party error! While that may have been the case with the other Defendants (and this Defendant takes no position on that subject,) it certainly doesn’t apply to this Defendant. . Plaintiff moves for sanctions under C.C.P §473(c)(1). That section states: (1) Whenever the court grants relief from a default, default judgment, or dismissal based on any of the provisions of this section, the court may do any of the following: (A) Impose a penalty of no greater than one thousand dollars ($1,000) upon an offending attorney or party. (B) Direct that an offending attorney pay an amount no greater than one thousand dollars ($1,000) to the State Bar Client Security Fund. (C) Grant other relief as is appropriate. NNNNNNNNNh—lr—‘p—au—nr—av—Ip—Ii—nv—Av—t (C.C.P §473(c)(l) (emphasis added.) WQQMAWNHONOOOQQUl-PWNHO Section 473(b) covers setting aside a default. It states that “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (C.C.P §473(b)(1) (emphasis added.» Defendant readily admits that, as a “Hail Mary” play, it included an argument for relief under §473 in one of the pleadings filed with the Court. However, 473 (c)(l) states that sanctions are available when the default is set aside under the provisions of this section. In this Defendant’s case, the relief was not provided under section 473, but rather because the default was erroneously -5- CASE N0.: CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION OPPOSITION TO PLAINTIF F S “MOTION FOR ORDER ASSIGNING THIS CASE TO THE HONORABLE GERALD J. BUCHWALD AND MOTION FOR ATTORNEY’S FEES PURSUANT TO C.C.P §473(C)(1). . We “May .«~ Eentered by- the Clerk of the Court. Since relief was not granted under §473 as to this Defln'dant, :sanctions are unavailable under §473(c)(1.) The order granting the motions and applications, gattached to Plaintiff’s motion, makes that perfectly elear. That’s it. It’s that simple. The motion-must be denied asto this Defendant. c. LES STANFORD CHEVROLET CADILLAC, INC. Has No Objection to f I \OOOVONUI-hwlo Assigningithe Case to Judge Buchwald. Defendant does not believe that Plaintiff has follOwed the'proper procedure in combining these twomotions, or‘in' requesting single assignment, but really is‘quite' 'fm‘e'with having’th’e matter assigned the Judge Buchwald. ' 111. CONCLUSION ’10 ‘ I. For the: reasons stated above, the motion for sanctiOns as to this Defendant must be denied. n - '11‘ Defendant takesno position on the: motion for single assignment but does not object to the case 12 being assigned to Judge Buchwald. Vul-mfiw.~7T-+C$Lm7fi\- ‘13 Respectfully submitted. 14 1752 iDA’TED; November 29-, 2016 TOSCHIa s- RAN- 0 'LINS- DOYLE 16 ; 17; By: 18‘ DAVID R. SIDRAN THOMAS M CROWELL 19, Attorneys for Defendant LES STANFORD CHEVROLET CADILLAC 20 21 22 23 24 25 26 2-7 28 -6- CASE N03 CIV536294 DEFENDANT LES STANFORD CHEVROLET CADILLAC" 'INC.’S PARTION OPPOSITION TO PLAINTIFF S “MOTION;FORAORDERASSIGNING THIS CASE TO THE‘HONORABLE GERALD J. BUCHWALD AND MOTION FOR ATTORNEY’S‘FEES PURSUANTTO C.C.P\§473(C)(l). )——I PROOF OF SERVICE SABERI’V. LES STANFORD CHEVROLET CADILL_AC ET AL. San Mateo Superior Court Case No.,: ‘CIV536294 I,the undersigned, am eniplOyed in the County of Alameda, State of California. I am over the age of 18 and not‘a' party to the. within action; my business addrws isToschi, Sidran, Collins ”woooqéxmkmu‘w '& Doyle, 5145 Johnson Drive, Pleasanton, California 94588. I.“ OnLNovember 29, 2016, I served the within: W. ... DEFENDANT LES STANFORD CHEVROLET CADILLAC’ INC.’S PARTION ...e OPPOSITION TO PLAINTIFFS “MOTION FOR ORDER ASSIGNJNGTHISCA8E TO “MW THE HONORABLE GERALD J BUCHWALD AND MOTION FOR ATTORNEY’S' News FEES PURSUANT T0 0. (2.1? §473(C)(1). MAILs placing a true copy thereof enclosed 1n a sealed envelope with postage .mwhm.‘ I .‘BY X thereon fully prepaid 1n the United States mail at Pleasanton, California, to the person(s) ”..Ws at the address(es) as set forth below. ' :1 X BY ELECTRONIC MAIL (E -MAIL): By electronically mailing an Adobe .pdf version from e-mail address Kmithkeaw@toschisidran. com via Toschi, Sidran Collins & Doyle’s electronic mail system to the person(s) at the e-mail address(es) as set forth ...-«5W below. NHOKDOOQONUI-h-WNV-‘O NNNI—tn—‘Hp—bu—twt—tI—‘Hw Wawwxmgngr,» PLEASE SEE SERVICE LIST I declare under penalty of perjury under the laws of the State of California that the N0v‘ember 29, yummy“. foregoing is true and correct. and that this declaration was eXecuted on 20161 in Pleasanton, California ,: mic” Kharyl @hkeav/J U3 NNNN \IONUIA 28 . Toscm - SIDRAN Doug COLLINS 5 A PROIESSIQNAL OUR .FILE NO.: "11052 PROOF OF SERVICE CORPORATION l 2 3 4 5 SERVICE LIST 6 7 SABERI v. LES STANFORD CHEVROLET CADILLAC ET AL. San Mateo Superior Court Case No.: CIV536294 8 9 ATTORNEY FOR PLAINTIFF ATTORNEY FOR PLAINTIFF 10 ANDY SABER] ANDY SABER] 11 James M. Dombroski, Esq. Thomas I. Saberi, Esq. 12 Law Office of James M. Dombroski Law Office of William H. Payner Post Office Box 751027 1045 Ariport Blvd. Suite 12 13 Petaluma, CA 94975 So. San Francisco, CA 94080 Tel: (707) 762-7807 Tel: (650) 588-2428 14 Fax: (707) 769-0419 Fax: (650) 873-7046 15 ATTORNEY FOR BJ INTERSTATE AUTO ATTORNEY FOR BJ INTERSTATE AUTO l6 TRANSPORTER’S, INC. and BOGAN TRANSPORTER’S, INC. DEDYK 17 James Attridge Michael John LeVangie Law Office of James Attridge 18 LeVangie Law Group, LLP 270 Divisadero St.#3 2021 N St San Francisco, CA 94117 19 Sacramento, CA 95811 Tel: (415) 552-3088 Tel: (916) 443-4849 jattridge@attridgelaw.com 20 Fax: (916) 443-4855 21 22 23 24 25 26 27 28 $5531.; 73:22; '2' A"0,4,0“ OUR FILE No.: 11052 PROOF OF SERVICE