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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
Physical Address: Mailing Address:
10820 Justice Center Drive PO Box 619072
Roseville, CA 95678 Roseville, CA 95661
11/03/2020
David McCarthy dba Orange Capital Solutions
40485 Murrieta Hot Springs Rd. #389
Murrieta, CA 92563
Re: Palos, Anthony et al. vs. Palos, Steven S-CV-0020322
DOCUMENT:
O Complaint/Petition/Cross-Complaint/Amended OC Answer/Responsive
O Default ONotice of Deposit of Jury Fees
0 Motion/OSC/Demurrer O Proof of Service
O Judgment/Order O) Request for Dismissal
O Request for Trial Setting (UD) O Notice of Entry of Dismissal
O Abstract/Writ O Substitution of Attorney
O Notice of Unavailability of Counsel & Other: Memorandum of points and
O Check # for $ Authorities; Exhibitss
YOUR PAPERS WERE NOT FILED; REASONS FOR REJECTION:
ONo filing fee/incorrect filing fee was tendered. The correct filing fee is $C per person.
O Proof of service must include a cover page with the case name, case number and name of the
party filing the proof of service.
O Incorrect case number listed
ONo case number listed.
O Papers were submitted to the wrong county.
CINo signature on papers.
OINo original signature on papers and papers are not marked as filed by facsimile or electronic
filing.
O Conformed copy of Request for Entry of Dismissal must be attached to Notice of Entry of
Dismissal.
O Your papers do not comply with CRC §3.250.
First pages of papers must include all the information required by CRC §2.111(1), including
the name, address, bar number (if applicable), telephone number, and fax number and email
address (if available) of the attorney or party presenting the papers.
Your papers are not in proper filing format . CRC §2.118(a) and §2.100-2.117.O Per Local Rule 10.9s, when submitting a Writ of Execution or Abstract of Judgment, a copy of
the Judgment must be submitted.
O Must answer as named in complaint/cross-complaint
0 Your name and/or law office does not appear as the Attorney of Record.
O Per CRC §3.250(a)(21) Notice of Deposit of Jury Fees are not to be filed with the Court.
O Notices of Unavailability (AKA Tenderloin Notices) for civil filing are no longer accepted.
Carl v. Superior Court (Coast Community College Dist.) (2007) 157 Cal. App. 4" 73.
OO OTHER:
O Documents were placed in pick-up basket at the Historic Courthouse as no envelope was
provided (Local Rule 10.9(N).
OC Documents were placed in pick-up basket at the Gibson Courthouse as no envelope was
provided (Local Rule 10.9(N).
OC Documents were placed in pick-up basket at the Tahoe Courthouse as no envelope was
provided (Local Rule 10.9(N).
O You may wish to obtain information from the law library or from an attorney or other
professional.
Jake Chatters,
Clerk of the Superior Court
ip
[ZZ 7 am
>
: Sandés, Deputy Clerk™27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
Set Aside - Motion Order Granting Motion to Quash Service of Summons Pursuant To
Stipulation AND Set-Aside - Motion Ordering Granting Motions to Set Aside Default and Void
Default Judgment Pursuant To Stipulation
|. Background
On 12/13/06, Plaintiff filed a Complaint. On 10/15/07 this court entered a default, and a judgment was
entered against the Defendant (both parties are related and are brothers). Plaintiff assigned the
judgement and all rights and interests thereof to Assignee, Orange Capital Solutions, a dba of David
McCarthy (on 2/15/18), who is the true owner of the judgement. Plaintiff and Defendant improperly
attempted stipulation and to set aside the judgement without approval or participation of Assignee and
wrongfully caused this Court to issue an Order to Set Aside and an Order to Quash Service, both of
which were granted 3/13/20. The moving Assignee, as true owner of the judgement, now asks for a set
aside of that default judgement or these two wrongful Orders of the Court.
Il. Legal Argument
Pursuant to California Code of Civil Procedure §473(b), the court should set aside this adverse
judgment or ruling based on inadvertence, surprise, or excusable neglect. This relief should
extend to the Assignee in this matter who is the true owner of the interest at stake.
A. Grounds for Relief. On application, the court may, on 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 (Code Civ. Proc. §
473(b)). This motion is filed within a reasonable period of time, not exceeding six months after entry of
the default
B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard
and disposed of on their merits (Fasuyi v. Permatex, Inc. (2008) 167 California App. 4th 681, 694-703,
84 California Rptr. 3d 351; Berman v. Klassman (1971) 17 California App. 3d 900, 909, 95 Cal. Rptr.
417).
C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief
under Code of Civil Procedure Section 473 (Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95
Cal. Rptr. 417).
D. Liberal Construction of Statute. Code of Civil Procedure Section 473(b) is a remedial measure to
be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder
will be resolved in favor of a hearing on the merits (Berman v. Klassman (1971) 17 Cal. App. 3d 900,
910, 95 Cal. Rptr. 417).
E. Assignments and Assignee Law (incorporated by reference to each of the other stated grounds
in this motion because this is an Assignee matter). Rights and interests can be “assigned” to others as
stated in CCP section 954 (“A thing in action, arising out of the violation of a right of property, or out of
an obligation, may be transferred by the owner.”).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO Page 1 of 4
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SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER Physical Address: Mailing Address: 10820 Justice Center Drive PO Box 619072 Roseville, CA 95678 Roseville, CA 95661 11/03/2020 David McCarthy dba Orange Capital Solutions 40485 Murrieta Hot Springs Rd. #389 Murrieta, CA 92563 Re: Palos, Anthony et al. vs. Palos, Steven S-CV-0020322 DOCUMENT: O Complaint/Petition/Cross-Complaint/Amended OC Answer/Responsive O Default ONotice of Deposit of Jury Fees 0 Motion/OSC/Demurrer O Proof of Service O Judgment/Order O) Request for Dismissal O Request for Trial Setting (UD) O Notice of Entry of Dismissal O Abstract/Writ O Substitution of Attorney O Notice of Unavailability of Counsel & Other: Memorandum of points and O Check # for $ Authorities; Exhibitss YOUR PAPERS WERE NOT FILED; REASONS FOR REJECTION: ONo filing fee/incorrect filing fee was tendered. The correct filing fee is $C per person. O Proof of service must include a cover page with the case name, case number and name of the party filing the proof of service. O Incorrect case number listed ONo case number listed. O Papers were submitted to the wrong county. CINo signature on papers. OINo original signature on papers and papers are not marked as filed by facsimile or electronic filing. O Conformed copy of Request for Entry of Dismissal must be attached to Notice of Entry of Dismissal. O Your papers do not comply with CRC §3.250. First pages of papers must include all the information required by CRC §2.111(1), including the name, address, bar number (if applicable), telephone number, and fax number and email address (if available) of the attorney or party presenting the papers. Your papers are not in proper filing format . CRC §2.118(a) and §2.100-2.117.O Per Local Rule 10.9s, when submitting a Writ of Execution or Abstract of Judgment, a copy of the Judgment must be submitted. O Must answer as named in complaint/cross-complaint 0 Your name and/or law office does not appear as the Attorney of Record. O Per CRC §3.250(a)(21) Notice of Deposit of Jury Fees are not to be filed with the Court. O Notices of Unavailability (AKA Tenderloin Notices) for civil filing are no longer accepted. Carl v. Superior Court (Coast Community College Dist.) (2007) 157 Cal. App. 4" 73. OO OTHER: O Documents were placed in pick-up basket at the Historic Courthouse as no envelope was provided (Local Rule 10.9(N). OC Documents were placed in pick-up basket at the Gibson Courthouse as no envelope was provided (Local Rule 10.9(N). OC Documents were placed in pick-up basket at the Tahoe Courthouse as no envelope was provided (Local Rule 10.9(N). O You may wish to obtain information from the law library or from an attorney or other professional. Jake Chatters, Clerk of the Superior Court ip [ZZ 7 am > : Sandés, Deputy Clerk™27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO Set Aside - Motion Order Granting Motion to Quash Service of Summons Pursuant To Stipulation AND Set-Aside - Motion Ordering Granting Motions to Set Aside Default and Void Default Judgment Pursuant To Stipulation |. Background On 12/13/06, Plaintiff filed a Complaint. On 10/15/07 this court entered a default, and a judgment was entered against the Defendant (both parties are related and are brothers). Plaintiff assigned the judgement and all rights and interests thereof to Assignee, Orange Capital Solutions, a dba of David McCarthy (on 2/15/18), who is the true owner of the judgement. Plaintiff and Defendant improperly attempted stipulation and to set aside the judgement without approval or participation of Assignee and wrongfully caused this Court to issue an Order to Set Aside and an Order to Quash Service, both of which were granted 3/13/20. The moving Assignee, as true owner of the judgement, now asks for a set aside of that default judgement or these two wrongful Orders of the Court. Il. Legal Argument Pursuant to California Code of Civil Procedure §473(b), the court should set aside this adverse judgment or ruling based on inadvertence, surprise, or excusable neglect. This relief should extend to the Assignee in this matter who is the true owner of the interest at stake. A. Grounds for Relief. On application, the court may, on 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 (Code Civ. Proc. § 473(b)). This motion is filed within a reasonable period of time, not exceeding six months after entry of the default B. Policy of Law Favors Trial on Merits. The policy of the law is that controversies should be heard and disposed of on their merits (Fasuyi v. Permatex, Inc. (2008) 167 California App. 4th 681, 694-703, 84 California Rptr. 3d 351; Berman v. Klassman (1971) 17 California App. 3d 900, 909, 95 Cal. Rptr. 417). C. Court Has Wide Discretion in Granting Relief. A trial court has wide discretion to grant relief under Code of Civil Procedure Section 473 (Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909, 95 Cal. Rptr. 417). D. Liberal Construction of Statute. Code of Civil Procedure Section 473(b) is a remedial measure to be liberally construed, and any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits (Berman v. Klassman (1971) 17 Cal. App. 3d 900, 910, 95 Cal. Rptr. 417). E. Assignments and Assignee Law (incorporated by reference to each of the other stated grounds in this motion because this is an Assignee matter). Rights and interests can be “assigned” to others as stated in CCP section 954 (“A thing in action, arising out of the violation of a right of property, or out of an obligation, may be transferred by the owner.”). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO Page 1 of 4