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    Ex Parte Memo of Points Authorities

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    Attorney
    Defendants were never served with the summons and complaint for unlawful detainer that was filed against them. A judgment has been entered against the defendants. The defendants are requesting that the court (1) stay execution of the judgment, (2) vacate the judgment, and (3) reopen the case so that the defendants can have their day in court to defend themselves. The defendants argue they are entitled to relief due to extrinsic mistake or fraud based on the plaintiff's failure to properly serve them with the summons and complaint. Vacating the default judgment is warranted to prevent inequity and allow the defendants to defend themselves in the action.

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    Ex Parte Memo of Points Authorities

    Uploaded by

    Attorney
    570 views4 pages
    Defendants were never served with the summons and complaint for unlawful detainer that was filed against them. A judgment has been entered against the defendants. The defendants are requesting that the court (1) stay execution of the judgment, (2) vacate the judgment, and (3) reopen the case so that the defendants can have their day in court to defend themselves. The defendants argue they are entitled to relief due to extrinsic mistake or fraud based on the plaintiff's failure to properly serve them with the summons and complaint. Vacating the default judgment is warranted to prevent inequity and allow the defendants to defend themselves in the action.

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    California Superior Court Ex Parte Memo of Points and Authorities sample form.

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    Defendants were never served with the summons and complaint for unlawful detainer that was filed against them. A judgment has been entered against the defendants. The defendants are requesting that the court (1) stay execution of the judgment, (2) vacate the judgment, and (3) reopen the case so that the defendants can have their day in court to defend themselves. The defendants argue they are entitled to relief due to extrinsic mistake or fraud based on the plaintiff's failure to properly serve them with the summons and complaint. Vacating the default judgment is warranted to prevent inequity and allow the defendants to defend themselves in the action.

    Copyright:

    © All Rights Reserved
    Download as RTF, PDF, TXT or read online from Scribd
    Download as rtf, pdf, or txt
    570 views4 pages

    Ex Parte Memo of Points Authorities

    Uploaded by

    Attorney
    Defendants were never served with the summons and complaint for unlawful detainer that was filed against them. A judgment has been entered against the defendants. The defendants are requesting that the court (1) stay execution of the judgment, (2) vacate the judgment, and (3) reopen the case so that the defendants can have their day in court to defend themselves. The defendants argue they are entitled to relief due to extrinsic mistake or fraud based on the plaintiff's failure to properly serve them with the summons and complaint. Vacating the default judgment is warranted to prevent inequity and allow the defendants to defend themselves in the action.

    Copyright:

    © All Rights Reserved
    Download as RTF, PDF, TXT or read online from Scribd
    Download as rtf, pdf, or txt
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    The memorandum argues that the defendants were never served with the summons and complaint for the unlawful detainer action and requests that the court stay execution of the judgment and vacate the judgment to reopen the case.

    The memorandum is submitted in support of an application to stay execution of judgment and a motion to vacate the judgment and reopen the case.

    The memorandum argues that vacating the default judgment is appropriate on equitable grounds due to extrinsic fraud or mistake since the defendants were deprived of a fair hearing due to lack of service of process.

    1

    __full_name4__ __full_name2l__
    __address__
    __city__, __state__ __zip__
    __phone__
    Defendants, in pro per
    SUPERIOR COURT OF THE STATE OF CALIFORNIA
    FOR THE COUNTY OF __COUNTY__
    __plaintiff__,
    Plaintiff,
    v.
    __full_name__ __full_name2x__, et al.,
    Defendants.
    _
    _
    _
    CA! "#$%!&' __case__
    MEMORANDUM OF POINTS AND
    AUTHORITIES RELATIVE TO
    APPLICATION FOR STAY OF
    EXECUTION OF JUDGMENT AND
    IN SUPPORT OF MOTION TO
    VACATE JUDGMENT AND TO
    REOPEN CASE
    (California Code of Civil Procedure ) *1+,
    Date' __hearin-_date__
    .ime' __hearin-_time__
    Dept' __dept__
    Defendants __full_name__ and __full_name2__ su/mit the follo0in- Memorandum of Points
    and Authorities Relative to Application for Stay of Execution of Judgment and in Support of Motion To
    Vacate Judgment and To Reopen Case.
    1 1 1
    1 1 1
    1 1 1
    2
    tatement of 3acts
    Defendants __full_name__ and __full_name2__ 0ere never served 0ith the Summons and
    Complaint for nla!ful "etainer 0hich they assume /rou-ht this matter /efore the Court
    Pursuant to information provided /y the cler4 of this Court, 5ud-ment has /een entered in this
    matter as of stri4e_x_5ud-ment_date. 2f Defendants are ordered imminently to move out of their home,
    1
    Court stay the execution of and vacate the Judgment and reopen this case, so that they mi-ht have their
    day in court.
    22
    tayin- the 6ud-ment
    All courts have the po0er to stay the enforcement of any 5ud-ment or order. Code of Civil
    Procedure ) *1+ provides'
    (a, u/5ect to su/division (/, /elo0, the trial court may stay the
    enforcement of any 5ud-ment or order.
    (/, 2f the enforcement of the 5ud-ment or order 0ould /e stayed on
    appeal only /y the -ivin- of an underta4in-, a trial court shall not
    have po0er, 0ithout the consent of the adverse party, to stay the
    enforcement thereof under this section for a period that extends for
    more than 17 days /eyond the last date on 0hich a notice of appeal
    could /e filed.
    (c, .his section applies 0hether or not an appeal 0ill /e ta4en from
    the 5ud-ment or order and 0hether or not a notice of appeal has
    /een filed.
    %ased on the facts as stated in Defendants8 Ex Parte Application for Stay of Execution of
    Judgment # and # Ex Parte Application for $rder Shortening Time for %earing of Motion To Vacate
    Judgment and To Reopen Case, and in vie0 of the Court8s authority and -ood cause for its exercise in
    this matter, Defendants respectfully re9uest that a stay of execution /e -ranted.
    1 1 1
    1 1 1
    222
    :acatin- the Default 6ud-ment
    A trial court may vacate a default on e9uita/le -rounds even if statutory relief is unavaila/le.
    Cru& v' (agor America, 2nc., ;2 Cal. &ptr. <d +=2 (Cal. App. 4th Dist. 277>,. Apart from any statutory
    authority, a court has inherent, e9uita/le po0er to set aside a 5ud-ment on the -round of ?extrinsic
    fraud or mista4e.@ $livera v' )race, (1*42, 1* Cal. 2d ;>7, ;>= (1*42,.
    !xtrinsic fraud is a /road concept that ?tend(s, to encompass almost any set of extrinsic
    circumstances 0hich deprive a party of a fair adversary hearin-.@ Marriage of Par*, 2> Cal. <d <<>,
    <42 (1*+7,.
    .he Court may also -rant relief and vacate a default /ased on an extrinsic mista4e. .his term is
    /roadly applied to cover situations in 0hich circumstances extrinsic to the liti-ation have cost a party a
    hearin- on the merits. Rappleyea v' Camp+ell, + Cal. 4th *>;, *+1 (1**4,.
    !9uita/le relief is availa/le only 0here the fraud or mista4e 0as ?extrinsic@Ameanin- the party
    1
    occurred at trial, it is deemed ?intrinsic@ and not -round for relief. Marriage of Stevenot, 1;4 Cal.
    App. <d 17;1, 17=* (1*+4,.
    &elief on the -round of extrinsic fraud or mista4e is not availa/le to a party 0ho has /een -iven
    notice of the action yet fails to appear, unless he or she !s "re#en$e% &ro' "!r$()("!$(n* (n $he
    !)$(on. ,ulchar v' ,ulchar - 1 Cal. <d 4=>, 4>2 (1*=*,B Cru& v' (agor America- .nc', 14= Cal. App.
    4th 4++, ;72 (277=, (emphasis added,. &elief is -enerally availa/le only for ?extrinsic fraud or
    mista4e.@ %ut these terms are -iven a /road interpretation and )o#er !l'os$ !n+ )(r)u's$!n)e ,+
    h()h ! "!r$+ h!s ,een %e"r(#e% o& ! &!(r he!r(n*. .here need /e no actual ?fraud@ or ?mista4e@ in
    the strict sense. Marriage of Par*, 2> Cal. <d <<>, <42 (1*+7,, (emphasis added,.
    ?!xtrinsic mista4e@ also may /e found 0here a default 5ud-ment 0as entered as the result of
    clerical error. Rappleyea v' Camp+ell, + Cal. 4th *>;, *+1C*+< (1**4,. ?!xtrinsic mista4e is found
    0hen Damon- other thin-sE ... a mista4e led a court to do 0hat it never intended ... @ County of San
    "iego v' )orham, 1+= Cal. App. 4th 121;, 122* (2717,.
    2n Rappleyea, a court cler4 misinformed pro per defendants as to the filin- fee for their ans0er
    (9uotin- the fee for a sole defendant,. .he underpayment delayed -ettin- their ans0er on file, resultin-
    in a default 5ud-ment. 2t 0as an a/use of discretion to deny e9uita/le relief for ?extrinsic mista4e.@ +
    Cal. 4th at *+<.
    ?!xtrinsic mista4e is found 0hen Damon- other thin-sE ... a mista4e led a court to do 0hat it
    never intended ... @ County of San "iego v' )orham, 1+= Cal. App. 4th 121;, 122* (2717,.
    Fere, Defendants have never /een furnished 0ith the Summons and Complaint for nla!ful
    "etainer 0hich they assume Plaintiff filed in this action.
    2t is a -ross violation of the principles of e9uity to allo0 Defendants to lose their place of
    residence and effectively to /e put out into the streets for failure on the part of Plaintiff to serve
    process. #nder the rules of la0 stated a/ove, the Court can and should stay the execution of and
    vacate the 5ud-ment in this matter.
    2:.
    Conclusion
    Defendants have /een deprived of their ri-ht to appear in this unla0ful detainer action. 2t 0ill
    cause them extreme financial and psycholo-ical hardship to /e evicted from their home. Plaintiff8s
    failure to serve process in this matter cannot /e allo0ed /y this Court under any principles of la0 or
    e9uity. 2n all 5ustice, the court must stay the execution of and vacate the 5ud-ment, and reopen the
    case so that Defendants __full_name__ and __full_name2__ may appear and /e heard in this action.
    1

    __full_name2__

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