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__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.
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1 1 1
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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,
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Court stay the execution of and vacate the Judgment and reopen this case, so that they mi-ht have their
day in court.
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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.
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: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.@ $livera v' )race, (1*42, 1* Cal. 2d ;>7, ;>= (1*42,.
!xtrinsic fraud is a /road concept that ?tend(s, to encompass almost any set of extrinsic
circumstances 0hich deprive a party of a fair adversary hearin-.@ Marriage of Par*, 2> Cal. <d <<>,
<42 (1*+7,.
.he Court may also -rant relief and vacate a default /ased on an extrinsic mista4e. .his term is
/roadly applied to cover situations in 0hich circumstances extrinsic to the liti-ation have cost a party a
hearin- on the merits. Rappleyea v' Camp+ell, + Cal. 4th *>;, *+1 (1**4,.
!9uita/le relief is availa/le only 0here the fraud or mista4e 0as ?extrinsic@Ameanin- the party
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occurred at trial, it is deemed ?intrinsic@ and not -round for relief. Marriage of Stevenot, 1;4 Cal.
App. <d 17;1, 17=* (1*+4,.
&elief on the -round of extrinsic fraud or mista4e is not availa/le to a party 0ho has /een -iven
notice of the action yet fails to appear, unless he or she !s "re#en$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.
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__full_name2__