Pleading Wizard

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1POINTS AND AUTHORITIES RELATIVE TO APPLICATION__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.

___ CASE NUMBER: __case__

MEMORANDUM OF POINTS AND AUTHORITIES RELATIVE TO APPLICATION FOR STAY OFEXECUTION OF JUDGMENT AND IN SUPPORT OF MOTION TO VACATE JUDGMENT AND TO REOPEN CASE

(California Code of Civil Procedure 918)

Date:__hearing_date__Time:__hearing_time__Dept:__dept__

Defendants __full_name__ and __full_name2__ submit the following 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./ / // / // / /IStatement of FactsDefendants __full_name__ and __full_name2__ were never served with the Summons and Complaint for Unlawful Detainer which they assume brought this matter before the CourtPursuant to information provided by the clerk of this Court, judgment has been entered in this matter as of strike_x_judgment_date. If Defendants are ordered imminently to move out of their home, it will cause them extreme financial and psychological hardship. They respectfully request that this Court stay the execution of and vacate the Judgment and reopen this case, so that they might have their day in court. IIStaying the JudgmentAll courts have the power to stay the enforcement of any judgment or order. Code of Civil Procedure 918 provides:Subject to subdivision (b) below, the trial court may stay the enforcement of any judgment or order.If the enforcement of the judgment or order would be stayed on appeal only by the giving of an undertaking, a trial court shall not have power, without the consent of the adverse party, to stay the enforcement thereof under this section for a period that extends for more than 10 days beyond the last date on which a notice of appeal could be filed.This section applies whether or not an appeal will be taken from the judgment or order and whether or not a notice of appeal has been filed.

Based on the facts as stated in Defendants Ex Parte Application for Stay of Execution of Judgment and Ex Parte Application for Order Shortening Time for Hearing of Motion To Vacate Judgment and To Reopen Case, and in view of the Courts authority and good cause for its exercise in this matter, Defendants respectfully request that a stay of execution be granted./ / // / /IIIVacating the Default JudgmentA trial court may vacate a default on equitable grounds even if statutory relief is unavailable. Cruz v. Fagor America, Inc., 52 Cal. Rptr. 3d 862 (Cal. App. 4th Dist. 2007). Apart from any statutory authority, a court has inherent, equitable power to set aside a judgment on the ground of extrinsic fraud or mistake. Olivera v. Grace, (1942) 19 Cal. 2d 570, 576 (1942).Extrinsic fraud is a broad concept that tend(s) to encompass almost any set of extrinsic circumstances which deprive a party of a fair adversary hearing. Marriage of Park, 27 Cal. 3d 337, 342 (1980).The Court may also grant relief and vacate a default based on an extrinsic mistake. This term is broadly applied to cover situations in which circumstances extrinsic to the litigation have cost a party a hearing on the merits. Rappleyea v. Campbell, 8 Cal. 4th 975, 981 (1994).Equitable relief is available only where the fraud or mistake was extrinsicmeaning the party was denied the opportunity to be heard. If the fraud or mistake goes to the merits of the action, or occurred at trial, it is deemed intrinsic and not ground for relief. Marriage of Stevenot, 154 Cal. App. 3d 1051, 1069 (1984).Relief on the ground of extrinsic fraud or mistake is not available to a party who has been given notice of the action yet fails to appear, unless he or she was prevented from participating in the action. Kulchar v. Kulchar , 1 Cal. 3d 467, 472 (1969); Cruz v. Fagor America, Inc., 146 Cal. App. 4th 488, 502 (2006) (emphasis added). Relief is generally available only for extrinsic fraud or mistake. But these terms are given a broad interpretation and cover almost any circumstance by which a party has been deprived of a fair hearing. There need be no actual fraud or mistake in the strict sense. Marriage of Park, 27 Cal. 3d 337, 342 (1980), (emphasis added).Extrinsic mistake also may be found where a default judgment was entered as the result of clerical error. Rappleyea v. Campbell, 8 Cal. 4th 975, 981-983 (1994). Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended ... County of San Diego v. Gorham, 186 Cal. App. 4th 1215, 1229 (2010). In Rappleyea, a court clerk misinformed pro per defendants as to the filing fee for their answer (quoting the fee for a sole defendant). The underpayment delayed getting their answer on file, resulting in a default judgment. It was an abuse of discretion to deny equitable relief for extrinsic mistake. 8 Cal. 4th at 983.Extrinsic mistake is found when [among other things] ... a mistake led a court to do what it never intended ... County of San Diego v. Gorham, 186 Cal. App. 4th 1215, 1229 (2010). Here, Defendants have never been furnished with the Summons and Complaint for Unlawful Detainer which they assume Plaintiff filed in this action. It is a gross violation of the principles of equity to allow Defendants to lose their place of residence and effectively to be put out into the streets for failure on the part of Plaintiff to serve process. Under the rules of law stated above, the Court can and should stay the execution of and vacate the judgment in this matter. IV.ConclusionDefendants have been deprived of their right to appear in this unlawful detainer action. It will cause them extreme financial and psychological hardship to be evicted from their home. Plaintiffs failure to serve process in this matter cannot be allowed by this Court under any principles of law or equity. In all justice, the court must stay the execution of and vacate the judgment, and reopen the case so that Defendants __full_name__ and __full_name2__ may appear and be heard in this action.DATED: __print_date____full_name__

__full_name2__