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_______________________________
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In Pro Per
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA ________________________________, Plaintiff, vs. ________________________________, Defendant
Case No.: ____________________ NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT AND DEFAULT JUDGMENT, MEMORANDUM OFPOINTS AND AUTHORITIES AND DECLARATION OF DEFENDANT Hearing Date: _______________ Dep’t: _________ Judge: Neal A. Cabrinha
To Plaintiff: PLEASE TAKE NOTICE that on _______________ at ____________ in Department _____, of the above entitled court, located at 191 North First Street, San Jose CA 95113, before the Honorable Neal A. Cabrinha, defendant will move to set aside the default and any judgment thereon taken against defendant. This Motion is made pursuant to CCP § 473 and is based on one or more of the following grounds:
- SET ASIDE DEFAULT JUDGMENT WITHIN SIX MONTHS BASED ON: □ MISTAKE □ INADVERTENCE □ SURPRISE □ EXCUSABLE NEGLECT
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This Motion is based on the Memorandum of Points and Authorities and the Declaration of ________________________ which follow, and on all of the pleadings, records, and files in this action.
Dated: By: In Pro Per
MEMORANDUM OF POINTS AND AUTHORITIES
Code of Civil Procedure Section 473 (b) states in relevant part: The court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him 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,... and shall be made within a reasonable time, in no case exceeding six months, after the judgment, order or proceeding was taken. In the present case, defendant did not file a timely response to the complaint for the reasons stated in the attached declaration. The policy of the law is to have every case tried on its merits and that policy views with disfavor a party who, regardless of the merits, attempts to take advantage of the mistake, inadvertence, or neglect of his adversary. This policy is so strong that “any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Slusher v. Durrer (1977) 69 Cal. App. 3d 747, 753. For the reasons stated in this Memorandum and in the attached Declaration, the court should set aside the default and any judgment thereon taken against defendant.
