Preview
Electronically Filed
ALEXANDER APPLEBY 12/18/2020 8:09 AM
4245 West Ln, General Delivery Superior Court of California
Stockton,
Stockton, CACA 95205
95208 County of Stanislaus
209-730-6696 Clerk of the Court
alexappleby@hotmail.com By: Kimberly Mean, Deputy
$90 waived
Pro Se
$60 waived
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF STANISLAUS
CITY TOWERS BUILDING
801 10TH STREET, 4TH FLOOR
MOSEDSTO, CA 95354
) Case No.: CV-19-001519
)
)
1. NOTICE OF MOTION AND MOTION TO
NATIONAL COLLEGIATE LOAN TRUST ) SET ASIDE AND VACATE SANCTIONS;
2007-4, )
2. NOTICE OF MOTION AND MOTION TO
Petitioner, ) DISMISS ON STATUTE OF
) LIMITATIONS;
v. ) 3. POINTS AND AUTHORITIES;
)
4. DECLARATION IN RESPONSE TO
ALEXANDER APPLEBY, ) ORDERS TO SHOW CAUSE 1/6/20;
Respondent ) 5. DECLARATION ON STATUTE OF
) LIMITATIONS
)
Date: 1 OCT 2020
Dec 2020
January 27, 2021
) Dept/Time: Dept. 24 at 8:30 a.m.
)
Date Complaint was filed: 14 MAR 2019
)
1
NOTICE OF MOTION TO SET ASIDE AND VACATE SANCTIONS
TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY:
YOU ARE HEREBY NOTIFIED THAT at the above-captioned date and time and department in the
courthouse located at City Towers Building, 801 10th St, 4th Floor, Modesto, California that
Respondent will move the court for an order requesting that the Sanctions for missing Case Management
Conference on 1/6/2020, ordered at the Show of Cause hearing on 3/2/2020, be set aside, as well as an
order to Vacate said Sanctions pursuant to CCP § 418.10(a). This motion is made on the following
grounds:
● Inadvertence, surprise, mistake, or excusable neglect (CCP §473(b));
● Service of the Summons did not result in actual notice in time to defend action brought by a debt
buyer (Civ. §1788.61);
● The judgment and/or default is void (CCP §473(d));
This motion will be based upon this notice, the attached points and authorities and declaration of
Alexander Appleby, and the records and files in this action.
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -2
MOTION TO SET ASIDE AND VACATE SANCTIONS
I, Alexander Appleby, the respondent, hereby respectfully move the court to set aside and vacate
Sanctions for missing Case Management Conference on 1/6/2020, ordered at the Show of Cause hearing
on 3/2/2020, from the case stated above. I am requesting that the judgment be set aside on the following
grounds:
● Inadvertence, surprise, mistake, or excusable neglect (CCP §473(b));
● Service of the Summons did not result in actual notice in time to defend action brought by a debt
buyer (Civ. §1788.61);
● The judgment and/or default is void (CCP §473(d));
Further details: I was the victim of Domestic Violence in the form of physical, emotional and
phycological abuse and falsely accused of a crime by my abuser on 11/11/2019. Because of said
accusation I was in jail off and on from 11/12/2019 until 2/1/2020, when I was able to make bail. I
was unable to attend the 1/6/2020 Case Management Conference because of moving out of town
unexpectedly, although I did call and attempt to appear on the phone. I have been dealing with severe
depression related to PTSD from my time in the Army. Additionally, I did not have transportation
because my car was stolen, then impounded. In short, last year I lost my car, lost my dog, lost my
baby, and here mama, after an unlawful foreclosure of my family’s home, and the unexpected
termination of my 15-year career as a financial planner!!
I have since obtained reliable transportation, and I have been getting therapy to help me deal with the
depression. I have also learned to correct procedure to appear by phone.
WHEREFORE, I move the court to set aside and vacate the sanctions from 3/2/2020 and reconsider
the order to show cause based on excusable neglect, mistake and inadvertence.
Alexander Appleby
Signature
Date: 7/20/2020
12/18/2020
:
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -3
NOTICE OF MOTION TO DISMISS ON STATUTE OF LIMITATIONS
TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY:
YOU ARE HEREBY NOTIFIED THAT at 8:30am in Department 24 on August January 1927, 2021 in the
courthouse located at City Towers Building, 801 10th St, 4th Floor, Modesto, California that
Respondent will move the court for an order requesting to dismiss the charges claim made against him on the
basis that the statute of limitations has elapsed.
This motion is made on the following grounds:
● The Time of Commencing Actions Other Than for the Recovery of Real Property (CCP §337,
343 & 344);
This motion will be based upon this notice, the attached points and authorities and declaration of
Alexander Appleby, and the records and files in this action.
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -4
MOTION TO DISMISS ON STATUTE OF LIMITATIONS
I, Alexander Appleby, the respondent, hereby respectfully move the court to dismiss based on Statute of
Limitations(CCP §337, 343 & 344). The defendant is charged with Breach of Contract which bears a
statute of limitations of four (4) years. The last activity on the account was a payment made by
Respondent on March 4, 2015. Consequently, this case was not filed with the court until March 14,
2019; 10 days after the statute has tolled.
Because none of the charges against the defendant have not been classified as ongoing, and they all took
place before the date required, all charges must be dismissed pursuant to CCP § 418.10(a).
Further details
I filed Bankruptcy in 2012 and was denied relief based on debt being a student loan. Then in 2013 I
successfully filed to discharge student loans based on total disability, but was also denied relief based
on the student loan being a private student loan not a federal student loan. Subsequently in 2014 the
lender raised my payment from $100 to $600 a month, and was unwilling to find a reasonable and
agreeable solution. I made the last payment on March 04, 2015 and made no other action on the
account since that date. The 4 year Statute of limitations had elapsed on March 4, 2019 and this
complaint was not filed until March 14, 2019. The statute of limitations for a written contract in
California is 4 years.
WHEREFORE, I move the court to Dismiss with Prejudice.
Alexander Appleby
Signature
Date: 7/20/2020
12/18/2020
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -5
MEMORANDUM OF POINTS AND AUTHORITIES
I. Background
On 3/14/2019, Plaintiff filed a Complaint in this court.
Defendant was not present for a Case Management Conference on 1/6/2020, based on excusable neglect.
On 3/2/20 because of conflicting court hearings scheduled at the same time, Defendant was restrained
from a Case Management Conference and a Show of Cause Hearing in this case. Subsequently, this
court entered a default at the Order to Show Cause Hearing, and sanctions against the Defendant. The
moving defendant is now asking to vacate and set aside of that default and sanctions of $450.
As stated in the Answer on 5/28/2019 the complaint was filed after the statute of limitations of
four years, ending on 3/4/2019. The moving defendant is asking the court to dismiss this case with
prejudice, as well as an order quashing service of the Summons for lack of jurisdiction because Statute
of Limitations had expired.
II. 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.
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 Cal. App. 4th 681, 694–703,
84 Cal. Rptr. 3d 351; Berman v. Klassman (1971) 17 Cal. 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).
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -6
The court should grant defendant’s motion for relief pursuant to CCP §473.5 because he received no
actual notice of the action in time to defend, he has filed a timely motion for relief, and the default and
default judgment was not caused by the plaintiff’s avoidance of service or inexcusable neglect.
E. Motion for Relief From Default for Lack of Actual Notice. When service of a summons has not
resulted in actual notice to a party in time to defend the action and a default or default judgment
has been entered against him or her in the action, the party may serve and file a notice of motion
to set aside the default or default judgment and for leave to defend the action (Code Civ. Proc. §
473.5(a)).
F. Court May Grant Relief on Timely Motion if Defendant Not at Fault. On a finding by the court
that the motion was made within the two year time period permitted by Code of Civil Procedure
Section 473.5(a) and that his or her lack of actual notice in time to defend the action was not
caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or
default judgment on whatever terms as may be just and allow the party to defend the action
(Code Civ. Proc. § 473.5(c); Goya v. P.E.R.U. Enterprises (1978) 87 Cal. App. 3d 886, 890–891,
151 Cal. Rptr. 258).
G. Granting of Relief Within Discretion of Trial Court. Whether or not relief should be granted
under Code of Civil Procedure Section 473.5 is a matter within the discretion of the trial court
(Brockman v. Wagenbach (1957) 152 Cal. App. 2d 603, 611, 313 P.2d 659).
H. Policy Favors Application for Relief. Unless inexcusable neglect is clear, the policy favoring
trial on the merits prevails over the general rule of deference to the trial court’s exercise of
discretion, and doubts are resolved in favor of the application for relief from default (Tunis v.
Barrow (1986) 184 Cal. App. 3d 1069, 1079, 229 Cal. Rptr. 389).
The court should grant defendant’s motion for relief pursuant to Civil Code § 1788.61 because he
received no actual notice of the action in time to defend against an action brought by a debt buyer, he
has filed a timely motion for relief, and the default and default judgment was not caused by the
plaintiff’s avoidance of service or inexcusable neglect.
I. Motion for Relief From Default for Lack of Actual Notice. When service of a summons has not
resulted in actual notice to a party in time to defend an action brought by a debt buyer and a
default or default judgment has been entered against him or her in the action, the party may serve
and file a notice of motion to set aside the default or default judgment and for leave to defend the
action (Civ. Code § 1788.61(a)(1)).
J. Court May Grant Relief on Timely Motion if Defendant Not at Fault. On a finding by the court
that the motion was made within time period(s) permitted by Civ. Code § 1788.61(a)(2)(A), Civ.
Code § 1788.61(a)(2)(B) and/or Civ. Code § 1788.61(a)(3)(A), and that his lack of actual notice
in time to defend the action was not caused by his or her avoidance of service or inexcusable
neglect, it may set aside the default or default judgment on whatever terms as may be just and
allow the party to defend the action (Civ. Code § 1788.61(c)).
K. Statutory Power to Set Aside Void Judgment. The court may, on motion of either party after
notice to the other party, set aside any void judgment or order (Code Civ. Proc. § 473(d)).
L. Court Has Duty to Set Aside Judgment. It is well settled that when an application to vacate and
set aside a judgment that is not void on its face but void in fact is made within a reasonable time
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -7
after its rendition and is based on a sufficient showing, it is within the power of the court, and its
duty, to set it aside (Smith v. Bratman (1917) 174 Cal. 518, 520, 163 P. 892).
The court should set aside the default and, if entered, default judgment in this action as void on its face
because this is a consumer credit debt, however no declaration of venue has been filed and the complaint
is not verified.
M. Relief From Void Judgment or Order. The court may, on motion of either party after notice to
the other party, set aside any void judgment or order (Code Civ. Proc. § 473(d)).
N. Inherent Power to Set Aside Judgment Void on Its Face. A court has inherent power,
independent of statute, to set aside a judgment or order that is void on its face (People v. Greene
(1887) 74 Cal. 400, 405–406, 16 P. 197; Hendrix v. Hendrix (1955) 130 Cal. App. 2d 379, 383,
279 P.2d 58).
O. Test for Establishing That Judgment Is Void on Its Face. A judgment or order is void on its face
when its invalidity appears from an examination of the judgment roll (People v. Davis (1904)
143 Cal. 673, 676, 77 P. 651; Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808, 210 Cal. Rptr.
599).
P. Judgment Roll When Complaint Not Answered. If the complaint is not answered by any
defendant, the following papers, without being attached together, constitute the judgment roll:
the summons, with the affidavit or proof of service; the complaint; the request for entry of
default with a memorandum endorsed thereon that the default of the defendant in not answering
was entered, and a copy of the judgment; if defendant has appeared by demurrer, and the
demurrer has been overruled, then notice of the overruling thereof served on defendant’s
attorney, together with proof of the service; and in case the service is made by publication, the
affidavit for publication of summons, and the order directing the publication of summons (Code
Civ. Proc. § 670(a)).
The court should quash service of the summons due to lack of jurisdiction.
Q. Motion to Quash Service of Summons. On or before the last day of his or her time to plead, or
within such further time as the court may for good cause allow, a defendant may serve and file a
notice of motion to quash service of summons on the ground the court lacks jurisdiction over him
or her (Code Civ. Proc. § 418.10(a)(1)).
R. Compliance With Statutory Provisions Governing Service of Process Is Required. Service of
summons in conformance with the mode prescribed by statute is deemed jurisdictional, and,
absent such service, no jurisdiction is acquired by the court in the particular action (Renoir v.
Redstar Corp. (2004) 123 Cal. App. 4th 1145, 1150, 20 Cal. Rptr. 3d 603; Schering Corp. v.
Superior Court (1975) 52 Cal. App. 3d 737, 741, 125 Cal. Rptr. 337; Sternbeck v. Buck (1957)
148 Cal. App. 2d 829, 832, 307 P.2d 970).
S. Strict Compliance Necessary for Substituted or Constructive Service. A court has no authority to
render judgment on the basis of substituted or constructive service of the summons when
statutory requirements have not been strictly complied with (Summers v. McClanahan (2006)
140 Cal. App. 4th 403, 412, 44 Cal. Rptr. 3d 338 (improper service on personal manager); Zirbes
v. Stratton (1986) 187 Cal. App. 3d 1407, 1416, 232 Cal. Rptr. 653 (substituted service); Eagle
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -8
Electric Mfg. Co. v. Keener (1966) 247 Cal. App. 2d 246, 251, 55 Cal. Rptr. 444 (same); Bank
of America v. Carr (1956) 138 Cal. App. 2d 727, 737, 292 P.2d 587 (constructive service)).
T. General Appearance After Default Judgment Does Not Validate Defective Service. The general
appearance after entry of a default judgment by a defendant who was defectively served with
summons does not make the defective service retroactively valid (In re Marriage of Smith (1982)
135 Cal. App. 3d 543, 545, 547–552, 185 Cal. Rptr. 411).
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -9
DECLARATION
I, ALEXANDER APPLEBY, am the defendant/respondent in this matter, and I declare the following in
support of my motions:
I filed Bankruptcy in 2012 and was denied relief based on debt being a student loan. Then in 2013 I
successfully filed to discharge student loans based on total disability, but was also denied relief based on
the student loan being a private student loan not a federal student loan. Subsequently in 2014 the lender
raised my payment from $100 to $600 a month, and was unwilling to find a reasonable and agreeable
solution. I made the last payment on March 04, 2015 and made no other action on the account since that
date. The 4 year Statute of limitations had elapsed on March 4, 2019 and this complaint was not filed
until March 14, 2019. The statute of limitations for a written contract in California is 4 years.
I was the victim of Domestic Violence in the form of physical, emotional and phycological abuse and
falsely accused of a crime by my abuser on 11/11/2019. Because of said accusation I was in jail off and
on from 11/12/2019 until 2/1/2020, when I was able to make bail. I was unable to attend the 1/6/2020
Case Management Conference because of moving out of town unexpectedly, although I did call and
attempt to appear on the phone. I have been dealing with severe depression related to PTSD from my
time in the Army. Additionally, I did not have transportation because my car was stolen, then
impounded. In short, last year I lost my car, lost my dog, lost my baby, and here mama, after an
unlawful foreclosure of my family’s home, and the unexpected termination of my 15-year career as a
financial planner!!
After being released on bond, my new criminal cases had a pretrial hearing scheduled for 3/2/2020 at
8:30am, conflicting with the CMC and OSC Hearings for this civil case. Immediately after my pre-trial
hearing was complete on 3/2, I went to Department 24. By the time I got to the Civil Court House it was
too late, the CMC and OSC hearings were over and the courtroom was closed.
I have since obtained reliable transportation, and I have been getting therapy to help me deal with the
depression. I have also learned to correct procedure to appear by phone.
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -10
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and
correct.
Dated: 12/18/2020
Alexander Appleby
ALEXANDER APPLEBY, In Pro Per
NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -11
Preview
Electronically Filed ALEXANDER APPLEBY 12/18/2020 8:09 AM 4245 West Ln, General Delivery Superior Court of California Stockton, Stockton, CACA 95205 95208 County of Stanislaus 209-730-6696 Clerk of the Court alexappleby@hotmail.com By: Kimberly Mean, Deputy $90 waived Pro Se $60 waived SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF STANISLAUS CITY TOWERS BUILDING 801 10TH STREET, 4TH FLOOR MOSEDSTO, CA 95354 ) Case No.: CV-19-001519 ) ) 1. NOTICE OF MOTION AND MOTION TO NATIONAL COLLEGIATE LOAN TRUST ) SET ASIDE AND VACATE SANCTIONS; 2007-4, ) 2. NOTICE OF MOTION AND MOTION TO Petitioner, ) DISMISS ON STATUTE OF ) LIMITATIONS; v. ) 3. POINTS AND AUTHORITIES; ) 4. DECLARATION IN RESPONSE TO ALEXANDER APPLEBY, ) ORDERS TO SHOW CAUSE 1/6/20; Respondent ) 5. DECLARATION ON STATUTE OF ) LIMITATIONS ) Date: 1 OCT 2020 Dec 2020 January 27, 2021 ) Dept/Time: Dept. 24 at 8:30 a.m. ) Date Complaint was filed: 14 MAR 2019 ) 1 NOTICE OF MOTION TO SET ASIDE AND VACATE SANCTIONS TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY: YOU ARE HEREBY NOTIFIED THAT at the above-captioned date and time and department in the courthouse located at City Towers Building, 801 10th St, 4th Floor, Modesto, California that Respondent will move the court for an order requesting that the Sanctions for missing Case Management Conference on 1/6/2020, ordered at the Show of Cause hearing on 3/2/2020, be set aside, as well as an order to Vacate said Sanctions pursuant to CCP § 418.10(a). This motion is made on the following grounds: ● Inadvertence, surprise, mistake, or excusable neglect (CCP §473(b)); ● Service of the Summons did not result in actual notice in time to defend action brought by a debt buyer (Civ. §1788.61); ● The judgment and/or default is void (CCP §473(d)); This motion will be based upon this notice, the attached points and authorities and declaration of Alexander Appleby, and the records and files in this action. NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -2 MOTION TO SET ASIDE AND VACATE SANCTIONS I, Alexander Appleby, the respondent, hereby respectfully move the court to set aside and vacate Sanctions for missing Case Management Conference on 1/6/2020, ordered at the Show of Cause hearing on 3/2/2020, from the case stated above. I am requesting that the judgment be set aside on the following grounds: ● Inadvertence, surprise, mistake, or excusable neglect (CCP §473(b)); ● Service of the Summons did not result in actual notice in time to defend action brought by a debt buyer (Civ. §1788.61); ● The judgment and/or default is void (CCP §473(d)); Further details: I was the victim of Domestic Violence in the form of physical, emotional and phycological abuse and falsely accused of a crime by my abuser on 11/11/2019. Because of said accusation I was in jail off and on from 11/12/2019 until 2/1/2020, when I was able to make bail. I was unable to attend the 1/6/2020 Case Management Conference because of moving out of town unexpectedly, although I did call and attempt to appear on the phone. I have been dealing with severe depression related to PTSD from my time in the Army. Additionally, I did not have transportation because my car was stolen, then impounded. In short, last year I lost my car, lost my dog, lost my baby, and here mama, after an unlawful foreclosure of my family’s home, and the unexpected termination of my 15-year career as a financial planner!! I have since obtained reliable transportation, and I have been getting therapy to help me deal with the depression. I have also learned to correct procedure to appear by phone. WHEREFORE, I move the court to set aside and vacate the sanctions from 3/2/2020 and reconsider the order to show cause based on excusable neglect, mistake and inadvertence. Alexander Appleby Signature Date: 7/20/2020 12/18/2020 : NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -3 NOTICE OF MOTION TO DISMISS ON STATUTE OF LIMITATIONS TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY: YOU ARE HEREBY NOTIFIED THAT at 8:30am in Department 24 on August January 1927, 2021 in the courthouse located at City Towers Building, 801 10th St, 4th Floor, Modesto, California that Respondent will move the court for an order requesting to dismiss the charges claim made against him on the basis that the statute of limitations has elapsed. This motion is made on the following grounds: ● The Time of Commencing Actions Other Than for the Recovery of Real Property (CCP §337, 343 & 344); This motion will be based upon this notice, the attached points and authorities and declaration of Alexander Appleby, and the records and files in this action. NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -4 MOTION TO DISMISS ON STATUTE OF LIMITATIONS I, Alexander Appleby, the respondent, hereby respectfully move the court to dismiss based on Statute of Limitations(CCP §337, 343 & 344). The defendant is charged with Breach of Contract which bears a statute of limitations of four (4) years. The last activity on the account was a payment made by Respondent on March 4, 2015. Consequently, this case was not filed with the court until March 14, 2019; 10 days after the statute has tolled. Because none of the charges against the defendant have not been classified as ongoing, and they all took place before the date required, all charges must be dismissed pursuant to CCP § 418.10(a). Further details I filed Bankruptcy in 2012 and was denied relief based on debt being a student loan. Then in 2013 I successfully filed to discharge student loans based on total disability, but was also denied relief based on the student loan being a private student loan not a federal student loan. Subsequently in 2014 the lender raised my payment from $100 to $600 a month, and was unwilling to find a reasonable and agreeable solution. I made the last payment on March 04, 2015 and made no other action on the account since that date. The 4 year Statute of limitations had elapsed on March 4, 2019 and this complaint was not filed until March 14, 2019. The statute of limitations for a written contract in California is 4 years. WHEREFORE, I move the court to Dismiss with Prejudice. Alexander Appleby Signature Date: 7/20/2020 12/18/2020 NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -5 MEMORANDUM OF POINTS AND AUTHORITIES I. Background On 3/14/2019, Plaintiff filed a Complaint in this court. Defendant was not present for a Case Management Conference on 1/6/2020, based on excusable neglect. On 3/2/20 because of conflicting court hearings scheduled at the same time, Defendant was restrained from a Case Management Conference and a Show of Cause Hearing in this case. Subsequently, this court entered a default at the Order to Show Cause Hearing, and sanctions against the Defendant. The moving defendant is now asking to vacate and set aside of that default and sanctions of $450. As stated in the Answer on 5/28/2019 the complaint was filed after the statute of limitations of four years, ending on 3/4/2019. The moving defendant is asking the court to dismiss this case with prejudice, as well as an order quashing service of the Summons for lack of jurisdiction because Statute of Limitations had expired. II. 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. 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 Cal. App. 4th 681, 694–703, 84 Cal. Rptr. 3d 351; Berman v. Klassman (1971) 17 Cal. 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). NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -6 The court should grant defendant’s motion for relief pursuant to CCP §473.5 because he received no actual notice of the action in time to defend, he has filed a timely motion for relief, and the default and default judgment was not caused by the plaintiff’s avoidance of service or inexcusable neglect. E. Motion for Relief From Default for Lack of Actual Notice. When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, the party may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action (Code Civ. Proc. § 473.5(a)). F. Court May Grant Relief on Timely Motion if Defendant Not at Fault. On a finding by the court that the motion was made within the two year time period permitted by Code of Civil Procedure Section 473.5(a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action (Code Civ. Proc. § 473.5(c); Goya v. P.E.R.U. Enterprises (1978) 87 Cal. App. 3d 886, 890–891, 151 Cal. Rptr. 258). G. Granting of Relief Within Discretion of Trial Court. Whether or not relief should be granted under Code of Civil Procedure Section 473.5 is a matter within the discretion of the trial court (Brockman v. Wagenbach (1957) 152 Cal. App. 2d 603, 611, 313 P.2d 659). H. Policy Favors Application for Relief. Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails over the general rule of deference to the trial court’s exercise of discretion, and doubts are resolved in favor of the application for relief from default (Tunis v. Barrow (1986) 184 Cal. App. 3d 1069, 1079, 229 Cal. Rptr. 389). The court should grant defendant’s motion for relief pursuant to Civil Code § 1788.61 because he received no actual notice of the action in time to defend against an action brought by a debt buyer, he has filed a timely motion for relief, and the default and default judgment was not caused by the plaintiff’s avoidance of service or inexcusable neglect. I. Motion for Relief From Default for Lack of Actual Notice. When service of a summons has not resulted in actual notice to a party in time to defend an action brought by a debt buyer and a default or default judgment has been entered against him or her in the action, the party may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action (Civ. Code § 1788.61(a)(1)). J. Court May Grant Relief on Timely Motion if Defendant Not at Fault. On a finding by the court that the motion was made within time period(s) permitted by Civ. Code § 1788.61(a)(2)(A), Civ. Code § 1788.61(a)(2)(B) and/or Civ. Code § 1788.61(a)(3)(A), and that his lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action (Civ. Code § 1788.61(c)). K. Statutory Power to Set Aside Void Judgment. The court may, on motion of either party after notice to the other party, set aside any void judgment or order (Code Civ. Proc. § 473(d)). L. Court Has Duty to Set Aside Judgment. It is well settled that when an application to vacate and set aside a judgment that is not void on its face but void in fact is made within a reasonable time NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -7 after its rendition and is based on a sufficient showing, it is within the power of the court, and its duty, to set it aside (Smith v. Bratman (1917) 174 Cal. 518, 520, 163 P. 892). The court should set aside the default and, if entered, default judgment in this action as void on its face because this is a consumer credit debt, however no declaration of venue has been filed and the complaint is not verified. M. Relief From Void Judgment or Order. The court may, on motion of either party after notice to the other party, set aside any void judgment or order (Code Civ. Proc. § 473(d)). N. Inherent Power to Set Aside Judgment Void on Its Face. A court has inherent power, independent of statute, to set aside a judgment or order that is void on its face (People v. Greene (1887) 74 Cal. 400, 405–406, 16 P. 197; Hendrix v. Hendrix (1955) 130 Cal. App. 2d 379, 383, 279 P.2d 58). O. Test for Establishing That Judgment Is Void on Its Face. A judgment or order is void on its face when its invalidity appears from an examination of the judgment roll (People v. Davis (1904) 143 Cal. 673, 676, 77 P. 651; Carrasco v. Craft (1985) 164 Cal. App. 3d 796, 808, 210 Cal. Rptr. 599). P. Judgment Roll When Complaint Not Answered. If the complaint is not answered by any defendant, the following papers, without being attached together, constitute the judgment roll: the summons, with the affidavit or proof of service; the complaint; the request for entry of default with a memorandum endorsed thereon that the default of the defendant in not answering was entered, and a copy of the judgment; if defendant has appeared by demurrer, and the demurrer has been overruled, then notice of the overruling thereof served on defendant’s attorney, together with proof of the service; and in case the service is made by publication, the affidavit for publication of summons, and the order directing the publication of summons (Code Civ. Proc. § 670(a)). The court should quash service of the summons due to lack of jurisdiction. Q. Motion to Quash Service of Summons. On or before the last day of his or her time to plead, or within such further time as the court may for good cause allow, a defendant may serve and file a notice of motion to quash service of summons on the ground the court lacks jurisdiction over him or her (Code Civ. Proc. § 418.10(a)(1)). R. Compliance With Statutory Provisions Governing Service of Process Is Required. Service of summons in conformance with the mode prescribed by statute is deemed jurisdictional, and, absent such service, no jurisdiction is acquired by the court in the particular action (Renoir v. Redstar Corp. (2004) 123 Cal. App. 4th 1145, 1150, 20 Cal. Rptr. 3d 603; Schering Corp. v. Superior Court (1975) 52 Cal. App. 3d 737, 741, 125 Cal. Rptr. 337; Sternbeck v. Buck (1957) 148 Cal. App. 2d 829, 832, 307 P.2d 970). S. Strict Compliance Necessary for Substituted or Constructive Service. A court has no authority to render judgment on the basis of substituted or constructive service of the summons when statutory requirements have not been strictly complied with (Summers v. McClanahan (2006) 140 Cal. App. 4th 403, 412, 44 Cal. Rptr. 3d 338 (improper service on personal manager); Zirbes v. Stratton (1986) 187 Cal. App. 3d 1407, 1416, 232 Cal. Rptr. 653 (substituted service); Eagle NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -8 Electric Mfg. Co. v. Keener (1966) 247 Cal. App. 2d 246, 251, 55 Cal. Rptr. 444 (same); Bank of America v. Carr (1956) 138 Cal. App. 2d 727, 737, 292 P.2d 587 (constructive service)). T. General Appearance After Default Judgment Does Not Validate Defective Service. The general appearance after entry of a default judgment by a defendant who was defectively served with summons does not make the defective service retroactively valid (In re Marriage of Smith (1982) 135 Cal. App. 3d 543, 545, 547–552, 185 Cal. Rptr. 411). NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -9 DECLARATION I, ALEXANDER APPLEBY, am the defendant/respondent in this matter, and I declare the following in support of my motions: I filed Bankruptcy in 2012 and was denied relief based on debt being a student loan. Then in 2013 I successfully filed to discharge student loans based on total disability, but was also denied relief based on the student loan being a private student loan not a federal student loan. Subsequently in 2014 the lender raised my payment from $100 to $600 a month, and was unwilling to find a reasonable and agreeable solution. I made the last payment on March 04, 2015 and made no other action on the account since that date. The 4 year Statute of limitations had elapsed on March 4, 2019 and this complaint was not filed until March 14, 2019. The statute of limitations for a written contract in California is 4 years. I was the victim of Domestic Violence in the form of physical, emotional and phycological abuse and falsely accused of a crime by my abuser on 11/11/2019. Because of said accusation I was in jail off and on from 11/12/2019 until 2/1/2020, when I was able to make bail. I was unable to attend the 1/6/2020 Case Management Conference because of moving out of town unexpectedly, although I did call and attempt to appear on the phone. I have been dealing with severe depression related to PTSD from my time in the Army. Additionally, I did not have transportation because my car was stolen, then impounded. In short, last year I lost my car, lost my dog, lost my baby, and here mama, after an unlawful foreclosure of my family’s home, and the unexpected termination of my 15-year career as a financial planner!! After being released on bond, my new criminal cases had a pretrial hearing scheduled for 3/2/2020 at 8:30am, conflicting with the CMC and OSC Hearings for this civil case. Immediately after my pre-trial hearing was complete on 3/2, I went to Department 24. By the time I got to the Civil Court House it was too late, the CMC and OSC hearings were over and the courtroom was closed. I have since obtained reliable transportation, and I have been getting therapy to help me deal with the depression. I have also learned to correct procedure to appear by phone. NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -10 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: 12/18/2020 Alexander Appleby ALEXANDER APPLEBY, In Pro Per NOTICE OF MOTION AND MOTION; POINTS AND AUTHORITIES; DECLARATIONS -11