GARY ROBINSON
C/o
EL CASTILLO
12000 Washington Blvd.
Los Angeles, CA
90066
310-398-0000
Plaintiff in Pro Per
SUPERIOR COURT OF CALIFORNIA
UNLimited Jurisdiction Court
COUNTY OF LOS ANGELES
Southwest District
Torrance Courthouse,
825 Maple Avenue, Torrance 90503
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GARY ROBINSON, and on behalf of all other
similarly situated current and former employees of Skycar, Inc., or Laura L. Nelson dba Metropolitan Express (Metro) per Labor Code � 2699,
Plaintiff,
vs.
Skycar, Inc., Laura L. Nelson dba Metropolitan (Metro), Express and Does One through Fifty inclusive,
Defendants
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Case No.: YC049292
Dept/Div: SW B
PLAINTIFF�S EX PARTE MOTION TO RECONSIDER OR CLARIFY THE COURT�S set aside of defendant skycar Inc. default; Declarations in support of motion memorandum of points and authorities; exhibits |
Plaintiff hereby respectfully moves the Court to reconsider or clarity its decision to vacate and set aside default filed 12-30-04. The attached exhibits are copies of the summons and proof of service relating the service of process on defendant Skycar Inc. In the minutes of the 1-14-05, it states that there was no "proof of service contained in the file to show service of the summons and complaint was properly served on defendant Skycar, Inc. (The only proof of service indicates service on defendant Laura Lee Nelson dba Metropolitan Express Officer of Skycar, Inc. )"
Plaintiff hereby respectfully requests clarification on the following additional points:
- The various discovery methods requested by plaintiff state that a plaintiff can request discovery of a defendant 10 days after service of complaint. There is nothing that states that the plaintiff must wait until the defendant answers the complaint to make the request. I can find nothing that states that a defendants duty to comply with discovery is relieved by not answering the complaint. If the court has jurisdiction over the defendant as a party to the suit, then why would it not have the power to compel discovery of that defendant? Also, since the court has power to compel depositions of non-parties, how does the court loose the power to compel a defaulting party from compelling discovery?
- It was stated in the minutes of 1-14-5 that the service of defendant ( of the notice of the motion) was defective because " a declaration (had) been submitted indicating that the notice of motion was returned unopened stamped "return to sender". The court should note that a proof of service for these notices was contained in the file. The notice was properly mailed to the defendants business address, where the defendant was personally served. With proof of service notice is proper. For personal service of process, it is not required that the party being served actually open and read the notice. It is only required that they receive it. Here, the declaration and exhibit showing the returned envelops were included not only to show that the defendant received that notice as evidenced by her had writing on the outside of the envelopes, but that she was attempting to defraud the plaintiff and the court into believing that the defendant was no longer present at that address. My declarations and photographs indicate that defendant is still doing business from that address.
- The minutes indicate that the motion was filed late. This is true, per CCP �1005. However, both the defendant and the court were notified of my intent make a motion to compel more that a month in advance. The court was notified of this when Plaintiff requested the hearing date for the motion well over a month in advance. California Rule of the Court, Rule 317 refines how the court is to apply CCP �1005. Rule 317(d){Filing of late papers} states "No paper shall be rejected for filing on the ground that it was untimely submitted for filing. If the court, in its discretion, refuses to consider a late filed paper, the minutes or order shall so indicate". Here. The defendant was not prejudiced by the late filing since she already had notice of the motion. Also, the court was not inconvenienced, since the motion had been put on the calendar well in advance of the filing deadline and because the papers were filed at the time the court reviewed the file prior to the hearing on the motion. The minutes only indicate that the papers were untimely and not that the court was exercising its discretion in refusing to consider them.
This motion is based on attached declarations, memorandum of points and authorities", and declarations.
Dated; �����, _______________________
Gary Robinson
DECLARATIONS IN SUPPORT OF MOTION
I, the undersigned, declare:
- I am the plaintiff in this case.
- I have filed all papers in the case in pro per.
- The original complaint was filed and summons issued on 7-22-04.
- When the original summons was issued with the lower third under "NOTICE TO THE PERSON SERVED:" was left blank.
- I made copies of the summons and complaint and left the original summons as it was.
- On 8-05-04 I paid the Inglewood Sheriff�s Department $30 to serve the attached copies of the summons and complaint.
- Before giving the copy of the summons to the Sheriff�s personnel, I marked box 2 and wrote Laura Lee Nelson dba Metropolitan Express, and then I marked box 3 and wrote Skycar and under that I marked box CCP 416.10 (corporation).
- I communicated to them that I wanted Laura Nelson served both as an individual dba and as an officer of Skycar Inc.
- On 8-16-04 Deputy K. Pigeon served upon Laura Nelson copies of the summons and complaint.
- The proof of service was returned to me and I filed a copy with the Court on 8-30-04.
- The proof of service shows the following:
- The Defendant : Skycar, Inc.
- Under 4. Notice to the Person Served, it show Laura Lee Nelson dba .. and Officer of Skycar Inc. on the next line it says "UnderCCP 416.10 Corporation."
- The original summons and the proof of service were filed with the court clerk on 8-30-04. Conformed copies of both documents are attached. Please note that the conformed copy of the summons had both the Sheriff�s receipt stamp and the three boxes under notice of the person to be serviced marked. The summon as served looked like the conformed copy and not the original. So as not to inadvertently serve the original, I made copies of it as issued and put the original aside. I marked the three boxes on a copy when I presented it to the Sheriff for service.
I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated; �����, _______________________
Gary Robinson
Memorandum of Points and Authorities
Plaintiff submits the following points and authorities in support of the motion for reconsideration of the courts vacating and set aside of Defendant Skycar Inc�s default.
PLAINTIFF IS IN SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF CCP �412.30 FOR SERVICE OF A SUMMONS TO A CORPORATION
CCP �412.30
412.30. In an action against a corporation or an unincorporated association (including a partnership), the copy of the summons that is served shall contain a notice stating in substance: "To the person served: You are hereby served in the within action (or special proceeding) on behalf of (here state the name of the corporation or the unincorporated association) as a person upon whom a copy of the summons and of the complaint may be delivered to effect service on said party under the provisions of (here state appropriate provisions of Chapter 4 (commencing with Section 413.10) of the Code of Civil Procedure)." If service is also made on such person as an individual, the notice shall also indicate that service is being made on such person as an individual as well as on behalf of the corporation or the unincorporated association.
If such notice does not appear on the copy of the summons served, no default may be taken against such corporation or unincorporated association or against such person individually, as the case may be.
I believe that service of process upon Laura Nelson as an official of Skycar Inc. conforms to the above requirements. If there is any problem it is that original summons as filed did not have the appropriate boxes marked. Nonetheless, the copy that was served did have the appropriate boxes marked as can be seen on the conformed copy. Please consider the attached conformed copy as a supplement to the original to show that proof of service was proper.
I do not believe that the discrepancy between the conformed copy of the summons as served and the original summons as issued renders the service of process defective. The courts have ruled that the standard for service of process is "substantial compliance" (see Cory v. Crocker National Bank (1981) 123 Cal. App .3d 665, 669) and "a mere technicality does not render it �substantially defective�" (see Ystrom v. Handel (1988) 205 Cal. App. 3d 144, 152) In Cory the court found that the plaintiff was in "substantial compliance" despite the fact that the summons did not have the appropriate box marked to indicate that a corporation was being serviced. In Ystrom, the court held that a summons lacking the clerk�s signature and the courts seal was not "substantially defective." In my case the summons as served contained all the appropriate boxes marked and contained the court�s seal and clerk�s signature.
For the above reasons Plaintiff respectfully requests that the court reinstate the entry of default on Defendant Skycar.
Dated; �����, _______________________
Gary Robinson