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Stephen D. Crank, In Pro Per 621 Cienega Road And P.O. Box 121117 Big Bear Lake, California 92315 Tel: (909) 866-6050

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO, BIG BEAR DISTRICT ANTOINETTE HARDSTONE an) individual; and COMMERCIAL) ) ESCROW SERVICES, INC. ) ) Plaintiff, ) ) ) v. ) ) STEPHEN CRANK, an individual;) and DOES 1 50, inclusive ) ) ) Defendants. ) ) ) ) TO: Case No.: CIVVS1104897

NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK

DATE: May 7, 2012 TIME: 8:30am DEPT: Department H1

The Above-entitled Court and all Attorneys of Record,

and Parties pro per, if any: NOTICE IS HEREBY GIVEN that on May 7, 2012, at 8:30am, in Department H1 of the Superior Court of California, County of San Bernardino, Big Bear District, Defendant STEPHEN CRANK [hereinafter Defendant] will and hereby does move the Court to set aside the Default that was entered against him on December 5, 2012, and granting leave to file his Notice of Demurrer and Demurrer to Complaint, a copy of which is attached as Exhibit A to the Declaration of STEPHEN CRANK. The Motion will be made NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P1

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under the provisions of Code of Civil Procedure Section 473 on the ground that the Default were taken against Defendant due to his mistake, inadvertence and excusable neglect as more fully set forth in the Declaration of STEPHEN CRANK, and the Exhibits attached thereto, attached hereto and incorporated herein by reference. The Motion shall be based upon this notice, the attached Points and Authorities in support thereof, the files and records of this case, and the Declaration of STEPHEN CRANK, and the Exhibits attached thereto, attached hereto, and on such other and further oral and/or documentary evidence as may be presented at the hearing on this Motion.

Dated: March 3, 2012

_____________________________ STEPHEN CRANK, In Pro Per

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MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS Plaintiffs filed suit against Defendants on or about September 28, 2011 alleging: Defamation and Unfair Business Practice. See Plaintiffs complaint on file. Default was entered against Defendant STEPHEN CRANK on December 5, 2012. Defendant alleges that he only heard about the complaint sometime in late November 2011, Defendant briefly reviewed the complaint, and then set the paperwork aside with the intention of contacting an attorney to discuss the complaint. However, Defendant was unable to find the paperwork when he looked for it again, and did not find it again until the last week of December 2011 during Christmas Holidays. When Defendant, STEPHEN CRANK niece researched the case on the Courts website on or about December 27, 2011, he discovered that Default had been entered against Defendant on December 5, 2011. On February 6, 2012 Defendant accidently fell down a complete flight of stairs and was rushed to the emergency room. STEPHEN CRANK is 64yrs old and has been an in-patient at Loma Linda University Medical Center Since February 8, 2012. NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P3

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See the Declaration of STEPHEN CRANK and Exhibits attached thereto filed and served concurrently and incorporated herein by reference. Defendant denies all of the allegations of Plaintiff's complaint and contends that he is not responsible for Plaintiff's damages. Defendant has prepared a Notice of Demurrer and Demurrer to Complaint, a copy of which is attached as Exhibit "A" to the Declaration of STEPHEN CRANK, attached hereto and incorporated herein by reference. II. LEGAL ARGUMENT A. THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT THAT WAS ENTERED AGAINST THE DEFENDANT Code of Civil Procedure Section 473 states in pertinent part: The Court may, upon 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. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six

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months, after the judgment, dismissal, order, or proceeding was taken. Further, a California Court of Appeal has ruled that evidence that the defendant mislaid or misfiled the papers, and as a result failed to contact a lawyer in time, may show "excusable" neglect. Bernards v. Grey (1950) 97 Cal.App.2d 679, 683-686. B. DEFENDANT HAS MET ALL OF THE STATUTORY CONDITIONS NECESSARY FOR THE COURT TO SET ASIDE THE DEFAULT THAT WAS ENTERED AGAINST HIM As shown by the Declaration of STEPHEN CRANK, his failure to file a timely Answer to Plaintiffs complaint was due to excusable neglect in that he mislaid the summons and complaint, and as a result did not file a timely Response to Plaintiffs complaint. Default was entered against him on or about December 5, 2011, which is less than 3 months ago. Defendant first learned that a Default and Judgment had been entered against him on or about December 27, 2011. A copy of his Notice of Demurrer and

Demurrer to Complaint is attached as Exhibit A to his Declaration.

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Defendant has timely moved the Court for relief from Default, shown excusable neglect, and has provided copies of his proposed pleadings. Thus, he has met all of the statutory conditions necessary for the Court to set aside the Default entered against him. C. THE LAW FAVORS DISPOSING OF CASES ON THEIR MERITS Numerous decisions of the California Supreme Court make it clear that the law favors disposing of cases on their merits. It is the policy of law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default". Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479. Because the law strongly favors trial and disposition on the merits, any doubts must be resolved in favor of the party seeking relief from default. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. If granting the relief will not prejudice the opposing party (other than losing the advantage of the default), "the original negligence in allowing the default to be taken will be NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P6

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excused on a weak showing." Aldrich v. San Fernando Valley Lumber Co. (1985) 170 Cal.App.3d 725, 740. As shown by the Declaration of Defendant STEPHEN CRANK and his proposed Motion to Demurrer Complaint he has meritorious defenses to Plaintiffs suit. Therefore, the Court should grant his Motion so he can have his day in Court, and this case can be disposed of on its merits as the law favors. III. CONCLUSION Based on the above, Defendant STEPHEN CRANK respectfully requests that the Court set aside the Default that was entered against him, and allow him to file his Motion to Demurrer Complaint.

Dated: March 3, 2012 _____________________________ STEPHEN CRANK, In Pro Per

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DECLARATION OF STEPHEN CRANK I, STEPHEN CRANK, declare as follows. 1. I am over the age of 18 years and am a party to this action. I have personal knowledge of the facts stated in this declaration, and if called as a witness, could and would testify competently to the truth of the facts as stated herein. 2. I first heard about Plaintiffs complaint in late November, 2011. 3. I briefly reviewed the complaint after receiving it with the intention of immediately contacting an attorney right away. I put the complaint away, in what I believed was a good place. 4. However, a week or so later when I looked for the summons and complaint I was unable to find them initially. 5. I did not find the summons and complaint until the last week of December, 2011. When I found them I immediately asked my niece to check on the Courts website on www.sb-court.org, and discovered that a Default had been entered against me on December 5 2011. On February 6, 2012 Defendant accidently fell down a complete flight of stairs and was rushed to NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P8

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the emergency room. I am currently 64yrs old and have been an in-patient at Loma Linda University Medical Center Since February 8, 2012 till now. 6. Plaintiffs lawsuit has no merit as I do not owe them anything and did not cause any damages to Plaintiff. 7. I have prepared a Proposed Motion to Demurrer Complaint to Plaintiffs lawsuit. A true and correct

copy of this motion is attached hereto as Exhibit "A" and incorporated herein by reference. 8. It has been less than six months since entry of the Default and Default Judgment against me. 9. I respectfully request that the Court set aside the Default and Default Judgment that were entered against me and allow me to file my proposed Motion to Demurrer Complaint so that I can have my day in Court, and properly defend myself against Plaintiff's lawsuit. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on March 3, 2012, at Loma Linda, California.

// NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P9

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Dated: March 3, 2012 ____________________________ STEPHEN CRANK, In Pro Per

PROOF OF SERVICE NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF STEPHEN CRANK P10

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I am over the age of 18 and not a party to this action. I am a resident of or employed in the county where the mailing occurred; my business/residence address is: 9227 Haven Avenue #360, Rancho Cucamonga, California 91730. On March 5, 2012 I served the foregoing document(s) described as: NOTICE OF MOTION AND MOTION TO VACATE DEFAULT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION to the following parties: Jedidah L. Dooley Esq Hopkins & Carley 70 S. First Street San Jose, California 95113 [ X ] (By U.S. Mail) I deposited such envelope in the mail at Rancho Cucamonga, California with postage thereon fully prepaid. I am aware that on motion of the party served, service is presumed in valid in postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [ ] (By Personal Service) I caused such envelope to be delivered by hand via messenger service to the address above; [ ] (By Facsimile) I served a true and correct copy by facsimile during regular business hours to the number(s) listed above. Said transmission was reported complete and without error. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: March 5, 2012 _____________________________ Ron J. Castaneda

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