1 MEMORANDUM OF POINTS AND AUTHORITIES

2 I.

3
STATEMENT OF FACTS
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5 This action involves a Civil Rights/Discrimination (Limited Jurisdiction) action. The Counsel for

the Plaintiff, as well as Cruz Gonzales, alleges they performed a proper subservice on defendant, at an
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address where the defendant did not reside.
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I, LEWIS PEDIGO SR, ESA, Lewis Pedigo, dba 24/7
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Concrete Pumping a Sole Proprietorship appear on MY OWN BEHALF and move to vacate the default
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judgment. In addition, a copy of the proposed Answer is attached hereto, as required by law.
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12 Counsel for the Plaintiff filed a Summons and Complaint on March 11,2020. Plaintiff filed a proof of

13 service with this court on APRIL 4 ,2020, allegedly by SUBSTITUTED SERVICE WITH AN ALLEGED PROOF

14 OF MAILING WITH an ALLEGED AVADAVIT OF REASONABLE DILIGENCE.

15 DATE OF APRIL 4, 2020. 10920 Laurel Ave, Whittier CA 90605 1. The proof of service alleges that_:

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(i) The alleged Service address was “10920 Laurel Ave, Whittier, CA 90605"
17 (ii). The proof of service alleges that copies were left with "LEWIS PEDIGO JR, CO-OCCUPANT/SON"
18 At 10920 Laurel Ave, Whittier, CA 90720

19 (a) Defendant does not own or operate a business at this location.

(b) Defendant has not resided nor operated a business at the subject property as alleged in the
20 complaint filed March 2020, or in any of the filings thereafter. The Plaintiff in fact has record
21 of residence and business location premise after 2018.
(c) Defendant has not avoided service of process. Defendant has a legitimate defense to this
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action.
23 The plaintiff did not personally serve the defendant and did not perform a proper substituted service since

24 Defendant did not reside nor work at 10920 Laurel Ave, Whittier, CA 90720 at the time that the Summons and

25 Complaint was allegedly subserved, or anytime thereafter, in which any court document was mailed or delivered.

26 Nor was he ever informed of them by those declared ”competent adults” in Mr. Gonzales recordings on file.

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1 II

2 RELIEF FROM DEFAULT

3 JUDGMENT IS JUSTIFIED

4 SECTION 473 OF THE CODE OF CIVIL PROCEDURE

5 Bucket v. Briggs (1971) 15 Cal App3d 296,301, 93 Cal Rptr 61

6 A. Application for Relief from Default or Default Judgment: On application, the Court

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may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment,
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dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise,
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10 or excusable neglect. (CCP, Section 473.)

11 B. Timeliness of Motion. Application for relief from Default or Default Judgment must be made

12 within a reasonable time, in no case exceeding six months, after the Default was entered. (CCP 473).

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What constitutes "reasonable time" presents a questions or fact for the determination of the trial court,
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unless the circumstances are such as to demonstrate unreasonable delay as a matter of flaw
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16 (Outdoor Imports, Inc. vs. Stanoff,) (1970) 7Cal.App. 3d 518,523.

17 III
18 SECTION 473.5 OF THE CODE OF CIVIL PROCEDURE AUTHORIZES RELIEF FROM DEFAULT OR
19 DEFAULT JUDGMENT ON THE TIMELY MOTION OF A PARTY WHO THROUGH NO AVOIDANCE OR
INEXCUSABLE NEGLECT OF THEIR OWN RECEIVED NO ACTUAL NOTICE OF THE ACTION IN TIME
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TO DEFEND
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When service of a summons has not resulted in actual notice to a party in time to defend the
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action and a default or default judgment has been entered against him or her, such party may service and file a notice
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of motion to set aside the default or default judgment and for leave to defend the action.
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Whether or not relief should be granted under Section 4 73 .5 of the Code of Civil Procedure
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is a matter within the discretion of the trial court
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1 Unless INEXCUSABLE NEGLECT IS CLEAR, THE POLICY FAVORING TRIAL ON THE MERITS

2 PREVAILS OVER THE GENERAL RULE OF DEFERENCE TO THE TRIAL COURT'S EXERCISE OF

3 DISCRETION and doubts are resolved in favor of the application for relief from default.

4 The party moving under Section 473.5 of the code of Civil Procedure for relief from default or default judgment

5 must show that he or she has a meritorious defense to the action.

7 CONCLUSION
Based on the facts as stated in the accompanying declaration, coupled with the authorities
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presented herein, it is respectfully submitted that the plaintiff will not suffer any prejudice if the court grants this
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motion, and that this Court has ample grounds upon which to grant the motion for the defendant for an order
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vacating the judgment. The equities in this Case warrant the entered of such an order and so it is prayed.
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DATED SEPTEMBER 2, 2021
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__________________________________________
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LEWIS PEDIGO SR, ESA, Lewis Pedigo, dba 24/7
17 Concrete Pumping a Sole Proprietorship

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19

20 BY _________________________________

21 SAMANTHA JONES
22 UNDER POA
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