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PATRICIA LEWIS

1 10157 EAST AVENUE R 8


LITTLEROCK, CALIFORNIA 93543
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661 794-0986
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4 Attorney for Defendant: In Pro Per

6 SUPERIOR COURT OF THE STATE OF CALIFORNIA

7 FOR THE COUNTY OF LOS ANGELES, NORTH DISTRICT

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BENNIE LEWIS and LOUREEN LEWIS, )
10 individuals and as trustees of the Bennie ) Case No.: MC027031
and Loureen Lewis Living Trust )
11 ) NOTICE AND NOTICE OF MOTION AND
PLAINTIFFS, ) MOTION TO SET ASIDE DEFAULT
12 ) JUDGMENTM DECLARATION OF
) DEFENDANT PATRICIA LEWIS IN
13 ) SUPPORT TO MOTION TO SET
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PATRICIA LEWIS, an individual; and ASIDE DEFAULT JUDGMENT;
14 )
DOES 1-50 inclusive ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT
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DEFENDANT. ) THEREOF
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) DATE July 24, 2017
17 ) TIME: 8:30 A.M.
DEPT.: Department A-15
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN that, on July 24, 2017 at 8:30 A.M., or as soon
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thereafter as the matter may be heard, in Department A-15 of the above captioned
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court, located at 42011 4th Street West, Lancaster, California, Defendant PATRICIA
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LEWIS will move for an order pursuant to Code of Civil Procedure Section 473 and
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Code of Civil Procedure Section 473.1 relieving her from the default entered on May 11,
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NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 1 of 12
1 2017 and based on one or more of the following grounds: be set aside default judgment

2 within six months based on: Mistake, Inadvertence, Surprise, Excusable Neglect.

3 Defendant send to the court by mail the response to the Defendant Complaint,

4 when Defendant check with the court on 05/17/2017, she find out that a default

5 judgment has been entered, Defendant presented to the clerk her copy of the answer.

6 See attached Exhibit 1. Defendant was told by the clerk that she needed to file a

7 motion to set aside and file her answer.

8 The motion will be based on the Memorandum of Points and Authorities and the

9 Declaration of Patricia Lewis which follow, and on all of the pleading, records, and files

10 in this action.

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Dated: May 20, 2017 Respectfully Submitted
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______________________________________
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PATRICIA LEWIS, Defendant-In Pro Per
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NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 2 of 12
PATRICIA LEWIS
1 10157 EAST AVENUE R 8
LITTLEROCK, CALIFORNIA 93543
2
661 794-0986
3

4 Attorney for Defendant: In Pro Per

6 SUPERIOR COURT OF THE STATE OF CALIFORNIA

7 FOR THE COUNTY OF LOS ANGELES, NORTH DISTRICT

8
)
9 BENNIE LEWIS and LOUREEN LEWIS, ) Case No.: MC027031
individuals and as trustees of the Bennie )
10 and Loureen Lewis Living Trust ) DECLARATION PATRICIA LEWIS
)
11 )
PLAINTIFFS,
) DATE JULY 24, 2017
12 ) TIME: 8:30 A.M.
) DEPT.: Department A-15
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vs. )
)
14 PATRICIA LEWIS, and individual; and )
DOES1-50 inclusive )
15 )
DEFENDANTS. )
16 )

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18 DECLARATION OF PATRICIA LEWIS

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20 I, PATRICIA LEWIS, declare:

21 1. I am the Defendant in the above referenced matter. I am filing this motion

22 seeking relief from the Default Judgment entered on 05/11/2017, I am also requesting

23 that the Court to grant me to file the answer to the complaint, which is attached to the

24 motion.

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NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 3 of 12
1 3. On August 12, 2011 I filed a motion requesting that the Court set-aside the

2 stipulated Judgment reached between the parties due to provisions contained therein

3 that I objected to, and that I had repeatedly asked my then attorney of record Debra

4 Burdette to have changed before I would agree to sign. I initialed the pages I agreed to

5 and asked Debra Burdette to have opposing counsel make several changes. Without

6 my consent, Debra Burdette signed the stipulation and sent it to opposing counsel.

7 Therefore I filed my motion to set it aside.

8 4. I appeared in Court on October 18, 2011 the date my motion was

9 continued to from September 15, 2011. On Monday October 17, 2011 I received a

10 notice via email from opposing counsel that she would be requesting a continuance of

11 my motion due to late service. I was at the Court on that date and advised that my

12 motion had been taken off calendar but I do not know how or by whom or why.

13 5. I do not agree or stipulate to the provisions contained in the Stipulated

14 Judgment. Debra Burdette is no longer my attorney or record and does not have

15 permission to sign on behalf or to sign my name. I withheld my signature awaiting an

16 agreement to be reached and/or for certain provisions contained therein to either be

17 changed, or explained which never happened. I have emails that I am attaching hereto

18 as Exhibit A that details my desire to have changes made and stating that I did not

19 agree to terms contained therein. Therefore there IS NO STIPULATED JUDGMENT.

20 6. I am unsure exactly what has taken place here but I never agreed or

21 consented to removing my motion from the Calendar, I was never notified of any other

22 court dates, and I do not consent or agree to the Stipulated Judgment that was entered.

23 7. Therefore, I respectfully request that the Court allow me to set-aside the

24 Stipulate Judgment and allow a new trial to be set. I also ask that if the Writ has already

25 been issued that the Court Recall or Quash the writ pending a new trial on the matter.

NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 4 of 12
1 8. I pray for the courts relief from this Judgment in order to allow me to

2 defend myself adequately.

3 I declare under penalty of perjury that the foregoing is true and correct and if

4 called upon to testify, I would so testify.

6 Executed this May 2, 2017 at Palmdale, California.

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______________________________________
8 PATRICIA LEWIS, Defendant-In Pro Per
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NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 5 of 12
1 PATRICIA LEWIS
10157 EAST AVENUE R 8
2
LITTLEROCK, CALIFORNIA 93543
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(661) 794-0986
4

5 Attorney for Defendant: In Pro Per

6 SUPERIOR COURT OF THE STATE OF CALIFORNIA

7 FOR THE COUNTY OF LOS ANGELES

8
BENNIE LEWIS and LOUREEN LEWIS, )
9 indivudals and as trustees of the Bennie ) Case No.: MC027031
and Loureen Lewis Living Trust )
10 ) MEMORANDUM OF POINTS AND
PLAINTIFFS, ) AUTHORITIES
11 )
)
12 ) DATE JULY 24, 2017
PATRICIA LEWIS, an individual; and )
DOES 1-50 inclusive TIME: 8:30 A.M.
13 )
DEPT.: Department A-15
)
14 DEFENDANT. )
)
15 )
)
16 )

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18 MEMORANDUM OF POINTS AND AUTHORITIES

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20 I
A JUDGMENT ENTERED AGAINST A PARTY SHOULD BE SET ASIDE
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WHEN THE PARTY WAS NOT NOTIFIED OF THE PROCEEDINGS
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23 California Code of Civil Procedure 473.1 provides in pertinent part:

24 The court may, upon such terms as may be just, relieve a

25 party from a judgment, order, or other proceeding taken against him

NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 6 of 12
or her, including dismissal of an action pursuant to Section 581
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THE COURT MAY, UPON SUCH TERMS AS MAY BE JUST,
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RELIEVE A PARTY FROM A PROCEEDING TAKEN AGAINST HIM
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THROUGH HIS MISTAKE, INADVERTENCE, SURPRISE
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OR EXCUSABLE NEGLECT
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Code of Civil Procedure Section 473 grants authority to the court to set aside
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defaults and default judgments that have been entered against a party:
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(b) The court may, upon any terms as may be just, relieve a party or his
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or her legal representative from a judgment or other proceeding taken
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against him or her through his or her mistake, inadvertence, surprise, or
11 excusable neglect. Application for this relief shall be accompanied by a
12 copy of the answer or other pleading proposed to be filed therein, and

13 shall be made within a reasonable time, in no case exceeding six months,

14 after the judgment or proceeding was taken.

15 In Baratti v. Baratti (1952) 109 Cal. App. 2d 917 the court defined the 473

16 grounds as follows:

17 ... A mistake of fact is when a person understands the facts to be other

18 than they are; a mistake of law is when a person knows the facts as they

19 really are but has a mistaken belief as to the legal consequences of those

20 facts. [Citation.] Inadvertence is defined as lack of heedfulness or

21 attentiveness, inattention, fault from negligence. [Citations.] The

22 'surprise' referred to in section 473 is defined to be some 'condition or

23 situation in which a party to a cause is unexpectedly placed to his injury,

24 without any default or negligence of his own, which ordinary prudence

25 could not have guarded against.' [Citation.] The 'excusable neglect'

NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 7 of 12
1 referred to in the section is that neglect which might have been the act of a

2 reasonably prudent person under the same circumstances. [Citation.]."

3 109 Cal. App. 2d at 921 (emphasis added).

4 Surprise constituting grounds for a set-aside under C.C.P. 473 was found

5 where the party against whom the default had been taken did not receive actual notice

6 due to the fact that the party was not actually served with process. Thus, in the case of

7 Credit Manages Association of Southern California v. National Independent Business

8 Alliance (1984) 162 Cal. App. 3d 1166, the court found that [p]laintiff was not notified of

9 the assignors service of process or default being entered before the entry of the default

10 judgment, and thus was taken by surprise. 162 Cal. App. 3d at 1173 (emphasis added).

11 Section 473 is liberally construed because the law strongly favors

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trial and disposition on the merits. [citations]. Moreover, any doubts in
applying section 473 must be resolved in favor of the party seeking relief
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from default. [citations]. Additionally, where the party in default moves
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promptly to seek relief, and the party opposing the motion will not suffer
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prejudice if relief is granted, the policy of permitting trial on the merits
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must prevail. [citations].
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Brochtrup v. Intep (1987) 190 Cal. App. 3d 323 at 329 (emphasis added).
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In the instant case, Defendant did not agree to the provisions contained in the
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stipulated Judgment and communicated this on several occasions in writing to her own
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attorney and to the attorney for the Plaintiff. It was clear to all parties that when
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Defendant filed her motion to set-aside or oppose the stipulated Judgment that there
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were obviously points with which she disagreed.
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Due to some mistake, misunderstanding or other circumstance beyond the
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Defendants control, the stipulated Judgment was entered on October 24, 2011 signed
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by Defendants former attorney of record Debra Burdette. This alone should invalidate

NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


AUTHORITIES THEREON Page 8 of 12
1 the agreement as Defendant is no longer represented by Ms. Burdette and this

2 agreement should not bear her name. Furthermore, Defendant declares that she did

3 not sign the agreement and withheld her signature until the corrections and/or

4 requested changes were made or various provisions were clarified. That this Stipulation

5 has been filed in opposition to Defendant and without her agreement shows that the

6 Plaintiffs are not playing fair and are merely using this court to gain the upper hand.

7 Defendant has emails from opposing counsel that makes it abundantly clear that

8 Plaintiff understood and acknowledged that the Defendant had a motion pending before

9 this Court and that Plaintiffs intended to request a continuance. How this matter came

10 to be taken off calendar is beyond Defendants understanding.

11 For all of the foregoing reasons, defendant respectfully requests that the court

12 grant her motion to set aside or vacate the Stipulated Judgment, and to Recall or Quash

13 (the subsequent) Writ of Execution while this matter is pending, and to permit a New

14 Trial.

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16 Dated: May 22, 2017 Respectfully Submitted

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18 PATRICIA LEWIS, Defendant-In Pro Per
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NOTICE OF MOTION TO SET-ASIDE DEFAULT JUDGMENT, MEMORANDUM OF POINTS AND


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PROOF OF SERVICE BY MAIL
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STATE OF CALIFORNIA
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3 COUNTY OF LOS ANGELES) ss.

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I am employed in the County of Los Angeles, State of California. I am over the
5 age of 18 and not a party to the within action. My business address is
____________________________________________________________________
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On May 22, 2017, I served the foregoing document described as: NOTICE AND
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NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT JUDGMENT;
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DECLARATIONS IN SUPPORT THEREOF; MEMORANDUM OF POINTS AND
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AUTHORITIES IN SUPPORT THEREOF

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on the interested party or parties in this action by placing an original or a true copy
11 thereof enclosed in a sealed envelope addressed as follows:

12 Erika Norman, APKS


777 South Figueroa Street 44th Floor
13 Los Angeles, California 90017

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BY FACSIMILE I caused such document to be transmitted by means of facsimile
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machine, the transmittal attached hereto, to the number facsimile number as shown
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above.

17 BY PERSONAL SERVICE and by delivering such envelope by hand to the office


of the addressee.
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XXX BY MAIL I am readily familiar with the firms practice of collection and processing
19 correspondence for mailing. Under that practice it would be deposited with the U.S.
Postal Service on that same day with postage thereon full prepaid at Palmdale,
20 California, in the ordinary course of business. I am aware that on motion of the party
served, service is presumed invalid if postal cancellation date or postage meter date is
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more than one day after date of deposit for mailing in affidavit.
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23 I declare under penalty of perjury under the laws of the State of California that

24 the above is true and correct. Executed on May 22, 2017 at Palmdale, California.

25 ___________________________________
Rosa A. Urbina

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