Alberto Guadamuz Garcia

1 8844 Orion Avenue, Unit 41

2 North Hills, CA 91343

3 Defendant In Pro Per,

4
SUPERIOR COURT OF THE STATE OF CALIFORNIA
5
COUNTY OF LOS ANGELES
6
)
7 GEORGE EKINS TRUSTEE OF THE EKINS ) Case No. 17VEUD01793
FAMILY TRUST, )
8 ) APPLICATION FOR EX PARTE ORDER
Plaintiff, ) STAYING EXECUTION AND FOR ORDER
9 ) SHORTENING TIME FOR SERVICE OF
vs. ) MOTION TO SET ASIDE DEFAULT
10 ) JUDGMENT PURSUANT TO CCP
) 116.725(b), CCP 473(b), CCP 1179 and CCP
11 ALBERTO GUADAMUZ GARCIA, ) 918; MEMORANDUM OF POINTS AND
HERMINIA GUTIERREZ and DOES 1 to 10, ) AUTHORITIES; DECLARATION
12 Inclusive )
) DATE: March 19, 2018
13 Defendant. ) TIME: 1:30 PM
) DEPT: H
14 )
)
15

16 NOTICE TO PLAINTIFF AND PLAINTIFF’S ATTORNEY OF RECORD:

17 Defendant ALBERTO GUADAMUZ GARCIA hereby moves this court for an ex parte order
18 shortening time for service of the motion filed herewith, staying execution of the judgment rendered
19 herein, and restraining the levying officer from evicting the applicant pursuant to a writ of execution in

20 this case until such time as a hearing is held on the underlying motion.

21 The underlying motion is being brought pursuant to Code of Civil Procedure section
22 116.725(b) on the grounds that by a clerical error Default was entered against Defendant on February

23 21, 2018 despite the fact that he had faxed filed an answer on January 29, 2018 and again on February

24 15, 2018.

25 In the alternative, Defendant seeks relief from forfeiture of her lease pursuant to the provisions
26 of California Code of Civil Procedure section 473(b), California Code of Civil Procedure section 1179
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EX PARTE APLLICATION ON MOTION TO SET ASIDE DEFAULT JUDGMENT
28 EKINS v GARCIA, 17VEUD01793
 1 and California Code of Civil Procedure section 918.

2 This application is based upon the supporting declarations, Code of Civil Procedure section

3 128(8), Code of Civil Procedure section 1005, California Rule of Court 3.1300(b), the motion filed

4 concurrently herewith, and upon all papers on file in this action.

7 Dated: March 16, 2018

8

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Alberto Guadamuz Garcia, Defendant
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EX PARTE APPLICATION ON MOTION TO SET ASIDE DEFAULT JUDGMENT
28 EKINS v GARCIA, 17VEUD01793
 MEMORANDUM OF POINTS AND AUTHORITIES
1

2 I.
STATEMENT OF FACTS
3

4 ALBERTO GUADAMUZ GARCIA has been a tenant at 8844 Orion Avenue, Unit 41, North

5 Hills, CA 91343 (hereinafter the “Premises”), since July 1, 2017. Mr. Garcia did receive a written

6 lease.

7 Alberto Guadamuz Garcia (hereinafter “Defendant”) received the summons and complaint that

8 was filed on the date of December 12, 2017.

9 Defendant went to a legal services office to help him respond to the complaint. After reviewing

10 the documents a legal assistant informed the Defendant they would prepare a motion called a

11 Demurrer. The motion was filed on January 2, 2018 with a hearing date set for January 31, 2018 at

12 1:30 p.m. in department H.

13 On January 29, 2018, Defendant returned to the legal services office and with the help of the

14 legal assistant, Defendant filed an answer via fax on that date of January 29, 2018. Attached and

15 incorporated herein marked as “Exhibit A” is a copy of the confirmation of the fax that was sent and

16 received on that day.

17 After 2 weeks, Defendant informed the legal assistant that he had not yet received the notice of

18 trial. The legal assistant then told Defendant that she would refax the answer to the court. She did on
19 February 15, 2018. Attached and incorporated herein marked as “Exhibit B” is a copy of the

20 confirmation of the fax that was sent and received that day.

21 On March 13, 2018, Defendant received the notice to vacate from the Sheriff. Defendant never

22 received a notice of trial despite having fax filed an answer not once but twice. Defendant returned to

23 the legal services office and the legal assistant contacted the court on Defendant’s behalf and the clerk

24 informed her that Default and Judgment had been entered on February 21, 2018, however Defendant’s

25 answer was faxed and received two times, once in January 29, 2018 and the second time on February

26 15, 2018, however due to a clerical mistake the answer was never processed. Default and Judgment
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28 EKINS v GARCIA, 17VEUD01793
 1 never should have been entered and instead a trial should have been set.

2 Furthermore, an underlying issue in this case is that Plaintiff accepted rent from Defendant

3 after Plaintiff served him with a three day notice on November 21, 2017.

4 Defendant has a lockout date for March 18, 2018 and will be left without a place to live.

5 Defendant asks this court and its honorable judge to vacate the default judgment, process Defendant’s

6 answer and set this case for trial so Defendant has an opportunity to defend himself.

7 II.

8 THE COURT HAS THE STATUTORY AND INHERENT

DUTY AND POWER TO GRANT AN EX PARTE ORDER
9 SHORTENING TIME FOR SERVICE OF A MOTION
UNTIL SAID MOTION CAN BE HEARD
10

11 Courts of general jurisdiction have a statutory as well as inherent duty and power to control

12 their own processes and orders so as to make them conform to justice, including granting a stay of

13 execution in a proper case. C.C.P. § 128(8); California Cotton Credit Corporation v. Superior Court

14 (1932) 127 Cal. App. 472, 475.

15 Code of Civil Procedure section 128(8) “is consistent with and codifies the courts’ tradition

16 and inherent judicial power to do whatever is necessary and appropriate…to ensure the prompt, fair

17 and orderly administration of justice.” Neary v. The Regents of the University of California (1992) 3
th
18 Cal.4 273, 277. Indeed:
19 The courts of this state have a broad inherent power to control, supervise, and
administer matters before them. Although this power is partially codified in
20 Code of Civil Procedure section 128, it is not limited by the statute and derives
from the state Constitution, as based upon the historic power of the courts.
21 Courts are thus authorized to fashion new remedial procedures when it is
advisable to do so, in order to … protect the rights of the parties.
22

23 Board of Supervisors v. Superior Court (1994) 23 Cal.App.4th 830, 847-848 (citing Cottle v.
th
24 Superior Court (1992) 3 Cal.App.4 1367, 1377).

25 Code of Civil Procedure section 1005 prescribes times for written notice of motions and for the

26 service and filing of supporting and opposing papers. Section 1005(b) also provides that the court may
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 1 prescribe a shorter time for service. “The court, on its own motion or on application for an order

2 shortening time supported by a declaration showing good cause, may prescribe shorter times for the

3 filing and service of papers than the time specified in Code of Civil Procedure section 1005.”

4 California Rules of Court, Rule 3.1300(b).

5 Good cause exists to grant a stay of execution and to shorten time for the hearing of

6 Defendant’s motion set aside a default judgment pursuant to California Civil Code Section 473

7 because the Los Angeles County Sheriff’s Department will post a five-day notice to vacate on very

8 soon. If this motion is denied, the Sheriff is likely to lock Defendant out of his home as early as the

9 date of this hearing. This will completely extinguish any rights Defendant has to establish that he

10 should be the prevailing party in this action. In today’s very tight housing market, he will not be able

11 to replace his housing.

12 If this application is denied, Defendant will be locked out and will be homeless and he is

13 asking for a stay that will allow him to find a new place to live.

14

15 III
DEFENDANT SEEKS RELIEF PURSUANT TO CCP SECTION 116.725(b)
16

17 Code of Civil Procedure Section 116.725(b) states in relevant part:

18 A motion to correct a clerical error in a judgment or to set aside and vacate a judgment
on the ground of an incorrect or erroneous legal basis for the decision may be
19 made as follows:
(b) Each party may file only one motion to correct a clerical error or to set aside and
20 vacate the judgment on the ground of an incorrect or erroneous legal basis for the decision.
21
In this case the clerk accepted and entered the default on February 21, 2018 despite the fact
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that Defendant had fax filed an answer on January 29, 2018 and then again on February 15, 2018.
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Default should have not been entered and instead a trial should have been set. This mistake robbed
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25 Defendant of the opportunity to present his defense at trial.

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IV
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 THE COURT MAY RELIEVE A PARTY FROM A JUDGMENT IF
1 THE COURT FINDS THAT A JUDGMENT WAS ENTERED DUE TO
2 THE PARTY’S MISTAKE, INADVERTENCE, SURPRISE, OR
EXCUSABLE NEGLECT.
3
Code of Civil Procedure section 473(b) states in relevant part:
4
The court may, upon any terms as may be just, relieve a party or his or her
5
legal representative from a judgment, dismissal, order or other proceeding
6 taken against him or her through his or her mistake, inadvertence, surprise,
or excusable neglect. Application for this relief shall be accompanied by a
7 copy of the answer or other pleading proposed to be filed therein . . . and
shall be made within a reasonable time, in no case exceeding six months,
8 after the judgment, dismissal, order or proceeding was taken.
9 Code of Civil Procedure Section 473 is a remedial statute that is highly favored and should be
10 liberally construed to carry out the policy of permitting trial on the merits. Berman v. Klassman

11 (1971) 17 Cal. App. 3d 900, 910; Ochinero v. Wertz (1962) 200 Cal. App. 533, 535; Baratti v. Baratti,

12 (1952) 109 Cal. App. 2d 917, 921; See also 5 Witkin, California Procedure 3702. Any doubt that may

13 exist with respect of an application to set aside default judgment should be resolved in favor of the

14 application to the end of securing a trial on the merits. Consolidated Mortgage Co. v. Roberts (1949)

15 94 Cal. App. 2d 895, 899-900; see also Robinson v. Varella (1977) 67 Cal. App. 3d 611 (affirming the

16 principle that trial courts have broad discretion to finding mistake, excusable neglect or inadvertence

17 sufficient to set aside a default judgment and assure relief on the merits in an unlawful detainer

18 action).
19 Excusable neglect is defined in Black's Law Dictionary, with reference to the setting aside of a
20 judgment as: "[A] failure to take the proper steps at the proper time, not in consequence of a party's

21 own carelessness, inattention, or the willful disregard of the process of the court, but in consequence

22 of some unexpected or unavoidable hindrance or accident or reliance on the care and vigilance of his

23 counsel or on promises made by the adverse party." Excusable neglect is also defined as that neglect

24 which might have been the act or omission of a reasonable prudent person under the same

25 circumstances. Transit Ads, Inc. v. Tanner Motor Livery, Ltd., (1969) 270 Cal. App. 2d 275.

26 When a party moves promptly to seek relief from a default entered against him or her, very
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 1 slight evidence is required to justify a trial court’s order setting aside the default. Shamblin v. Brattain

2 (1988) 44 Cal. 3d 474, 478 (citing Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233)
V
3
THE LAW PROVIDES FOR RELIEF FROM FORFEITURE OF A
4 TENANCY IN CASE OF HARDSHIP
5 Section 1179 of the Code of Civil Procedure provides:

6 The court may relieve a tenant against a forfeiture of a lease, or rental

agreement, whether written or oral and whether or not the tenancy has
7 terminated, and restore him or her to his or her former state or tenancy in
case of hardship … The court has the discretion to relieve any person
8 against forfeiture on its own motion. The application may be made by a
tenant or subtenant, or a mortgagee of the term, or any person interested in
9 the continuance of the term. In no case shall the application or motion be
granted except on condition that full payment of rent due, or full
10 performance of conditions or covenants stipulated, so far as the same is
practicable, be made.
11

12 Granting relief from forfeiture is within the discretion of the court. When an application for

13 relief is made under Code of Civil Procedure section 1179, the court may

14 measure equity against equity. . . And upon these warring considerations

the court will exercise its discretion and either grant or refuse the
15 application, as a just balancing of the opposing equities may seem to
require.
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17 Olympic Auditorium, Inc. v. Superior Court (1927) 81 Cal. App. 283, 286. In balancing the

18 equities, the court should take into account

19 the circumstances of the case, the hardship, if any, to the lessee from the
forfeiture, the hardship, if any, to the lessor from relieving the lessee from
20 the forfeiture, the wilful or other character of the breach, and then use its
best discretion in determining whether the relief will be granted.
21
Hignell v. Gebala (1949) 90 Cal. App. 2d. 61, 70-71; see also Thrifty Oil v. Bartarse (1985)
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174 Cal. App. 3d 770, 777.
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24 Here, the hardship Defendant will suffer if the default is permitted to stand greatly outweighs
25 the hardship to Plaintiff if this motion for relief from forfeiture is granted.

26 Defendant asks the court to over turn the default against him and allow him an opportunity to
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 1 defend himself.
VI
2

3 DEFENDANT SEEKS RELIEF PURSUANT TO CCP SECTION 918

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In the alternative, Defendant seeks a stay of execution on the judgment until a date that is 40
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days from date of entry of judgment pursuant to the discretion given to the court under CCP Section
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918.
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If the court does not see fit to grant Defendant’s motion under CCP 473(b) or relief permitted
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under CCP 1179, Defendant asks the court for a stay of the lockout period for 40 days from the date of
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the entry of judgment so that Defendant may find a new place for him and his family to live.
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VII
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THE COURT HAS AUTHORITY TO EXTEND THE
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SEAL OF THE RECORD IN THE INTEREST OF JUSTICE
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California Civil Code Section 1161.2 seals a record from the public for 60 days and if the
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Defendant prevails then indefinitely. The legislative history of CCP Section 1161.2 reveals that the
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legislature was motivated to seal eviction records permanently because of the negative impact that an
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eviction action has on a tenant’s ability to find housing.
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California Rule of Court 2.550(d) states in relevant part that a court may seal a record if it
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makes each of the following findings.
19 (1) There exists an overriding interest that overcomes the right of public access to the record;
(2) The overriding interest supports sealing the record;
20 (3) A substantial probability exists that the overriding interest will be prejudiced if the record
is not sealed;
21 (4) The proposed sealing is narrowly tailored; and
22 (5) No less restrictive means exist to achieve the overriding interest.
(Subd (d) amended effective January 1, 2004.)
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24 The State legislature was sufficiently persuaded by evidence of the negative impact that eviction
25 actions have on a tenant’s future renting prospects that it passed CCP 1161.2, thereby dictating that a

26 tenant that is deemed the prevailing party should not be so branded. Each of the elements of
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 1 California Rule of Court 2550.1(e) is met by the situation at bar. First, the right to housing is an

2 “overriding interest that that overcomes the right of public access to the record” and hence supports

3 the sealing the record. As evidenced by the legislative history, there is a substantial probability that

4 Defendant’s ability to rent will be severely compromised by having an eviction action on his record

5 unless said record is sealed before it is reported to the general public by the unlawful detainer registry

6 or similar agency. The proposed sealing of the record is narrowly tailored to address the overriding

7 interest at issue, namely the Defendant’s future ability to secure suitable rental housing. And no more

8 restrictive means exist to achieve the overriding interest.

9 VIII

10 CONCLUSION

11 For the foregoing reasons, at the ex parte hearing we request that the Court grant an order

12 shortening time for service of the underlying motion and a stay of execution until said motion can be

13 heard. At the hearing on the underlying motion we request that the court set aside the default

14 judgment and recall and quash the writ of execution.

15 In the alternative, at the hearing on the underlying motion Defendant’s requests that the court

16 grant Defendant’s motion for relief from forfeiture under Code of Civil Procedure section 1179.

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Dated: March 16, 2018
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Alberto Guadamuz Garcia, Defendant
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 1

2 DECLARATION OF ALBERTO GUADAMUZ GARCIA

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I, ALBERTO GUADAMUZ GARCIA, hereby declare under penalty of perjury.
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1. My name is ALBERTO GUADAMUZ GARCIA
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2. I am the Defendant in this action.
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3. I am over the age of 18.
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4. The statements in this declaration are true of my own personal knowledge. If called as a
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witness I could and would testify thereto.
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5. I am a tenant of the property subject to the complaint: 8844 Orion Avenue, Unit 41, North
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Hills, CA 91343.
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6. A complaint was filed against me on December 12, 2017.
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7. I received the summons and complaint.
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8. I decided to go to a legal services office to get help.
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9. The legal assistant prepared a demurrer. This motion was filed January 02, 2018 and the
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hearing date was set for January 31, 2018
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10. A few weeks later I returned to the legal services office and the legal assistant informed me
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we needed to file a response. The assistant helped me file the answer via fax on January 29,
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2018. After that the assistant told me that I would receive a notice of trial by mail.
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11. Two weeks later, the assistant asked me if I had received a notice of trial. I told her that I
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had not received anything yet, then she told me she would refax the answer. This was
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refaxed to the court on the day of February 15, 2018.
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12. On March 13, 2018 I received the notice to vacate from the sheriff.
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13. I contacted the legal office to ask what had happened and they informed me they would
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contact the court to find out.
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14. The legal assistant informed me that they had filed the answer and it had been received by
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the clerk, but rather due to a clerical mistake default was entered against me on February
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 1 21, 2018 despite the fact that my answer had been sent to the court via fax on January 29,

2 2018 and again on February 15, 2018; both times the answer was sent before the date of the

3 default of February 21, 2018.

4 15. Also, I want to inform the court that I was served with a three day notice on November 21,

5 2017 and after that I made a rent payment to Plaintiff and he accepted it.

6 16. I am bringing this motion as soon as I can I only ask for an opportunity to remedy this

7 mistake so I can have a fair opportunity to defend myself in this case.

8 17. Due to a clerical error I did not get a trial date and I kindly request this default judgment

9 against me to be vacated and for trial to be set so I have an opportunity to present my

10 defense and evidence. I also ask for my answer to be entered.

11

12 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed at La Puente, California on March 16, 2018.
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14 _____________________________
Alberto Guadamuz Garcia, Defendant
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 1 Alberto Guadamuz Garcia

2 8844 Orion Avenue, Unit 41

North Hills, CA 91343
3
Defendant In Pro Per
4

5
SUPERIOR COURT OF THE STATE OF CALIFORNIA
6
COUNTY OF LOS ANGELES
7

8 GEORGE EKINS TRUSTEE OF THE EKINS ) Case No. 17VEUD01793

FAMILY TRUST, )
9 )
Plaintiff, ) [PROPOSED] ORDER
10 )
vs. )
11 )
)
12 ALBERTO GUADAMUZ GARCIA, )
HERMINIA GUTIERREZ and DOES I to 10, )
13 Inclusive, )
)
14 Defendant. )
15
ORDER
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This matter came before the court on March 19, 2018:
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 Defendant’s attorney appeared.
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 Plaintiff’s attorney appeared.
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After having considered the pleadings and declarations, and it appearing to the satisfaction of
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this court that good cause appears therefore:
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 IT IS ORDERED that Defendant’s ex parte application for an order shortening time to
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give notice is:
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 GRANTED  DENIED.
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 IT IS ORDERED that Defendant’s motion to stay execution pending hearing on the
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underlying motion is:
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 GRANTED  DENIED
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 1  IT IS ORDERED that Defendant’s request for a continuance of the trial is:

2  GRANTED  DENIED

3  IT IS ORDERED that Defendant’s motion to set aside the judgment, vacate and quash the

4 writ and set the case for trial pursuant to CCP 116.725(b) is:

5  GRANTED  DENIED.

6  IT IS ORDERED that Defendant(s)’s motion for a new trial pursuant to CCP 657 is:

7  GRANTED  DENIED.

8  IT IS ORDERED that Defendant(s)’s motion for relief from forfeiture pursuant to CCP

9 1179 is:

10  GRANTED  DENIED.

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12  A hearing on the underlying motion is scheduled for .

13

14 Dated:
Judge
15 Superior Court of California
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 APPLICATION FOR EX PARTE ORDER
4645 LIVE OAK LLC v. NORMA ANGELICA LAFARGO, 17UN1211