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Motion To Set Aside 06:11 PDF
Motion To Set Aside 06:11 PDF
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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20 ) DATE: 6/11/2018
21 ) DEPT: L72
) JUDGE: Palifax
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TO RESPONDENT KATRINA SANTOS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE; REGARDING DEFAULT JUDGEMENT ENTERED ON JUNE 8, 2018.
24 MR.TAYLOR MOVES THE COURT TO SET ASIDE THE JUDGEMENT ENTERED
AGAINST HIM, AND TO GRANT HIM LEAVE TO FILE HIS PROPOSED MOTION TO
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QUASH, A COPY OF WHICH IS ATTACHED AS EXHIBIT "A" TO THE DECLARATION.
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THE MOTION WILL BE MADE UNDER CODE OF CIVIL PROCEDURE § 473(D) ON
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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THE GROUNDS THAT THE DEFAULT AND JUDGMENT ARE VOID AS THE COURT
LACKED JURISDICTION OVER DEFENDANT DUE TO THE FACT THAT THEY WERE
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NEVER VALIDLY SERVED AS MORE FULLY SET FORTH IN THE DECLARATION AND
2 EXHIBITS ATTACHED THERETO, ATTACHED HERETO AND INCORPORATED HEREIN BY
REFERENCE.
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4 THE MOTION SHALL BE BASED UPON THIS NOTICE, THE ATTACHED POINTS
AND AUTHORITIES IN
5 SUPPORT THEREOF, THE FILES AND RECORDS OF THIS CASE, AND THE DECLARATION
AND EXHIBITS ATTACHED THERETO, ATTACHED HERETO, AND ON SUCH OTHER AND
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FURTHER ORAL AND/OR DOCUMENTARY EVIDENCE AS MAY BE PRESENTED AT THE
7 HEARING ON THIS MOTION.
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DATED__06/10/2018 _____________________________________
10 TRAVIS TAYLOR
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MEMORANDUM OF POINTS AND AUTHORITIES
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14 I.
STATEMENT OF FACTS
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MR. TAYLOR, FOLLOWING THE ADVICE OF HIS ATTORNEY, MR. TAYLOR MADE
15 A MOVE TO AUSTIN,TEXAS AS TO BE NEAR HIS DAUGHTER GWEN SHOWING
DELIBERATE EFFORT TO SEE HER MORE AND FORMALLY ESTABLISH AS MUCH TIME
16 WITH HER AS THE COURT WOULD AGREE, THROUGH ORDER OF A TRAVIS COUNTY
DISTRICT COURT.
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MR.TAYLOR SEEKS TO SOLIDIFY AN ORDER ALLOWING FOR 50/50 PHYSICAL
18 AND 50/50 LEGAL CUSTODY GIVE OR TAKE 10% DEPENDENT ON THE CHILDS SCHOOL
SCHEDULE.
19 MR. TAYLOR PUT IN FOR CHANGE OF ADDRESS BUT NOW WORRIES HE MAY
20 HAVE MADE A MISTAKE AND IS LOOKING INTO IT BUT HE IS RELATIVELY
CONFIDANT THAT HE DID IN FACT SUBMIT A CHANGE OF ADDRESS WITH THE LOS
21 ANGELES POST OFFICE CORRECTLY.
MR TAYLOR HAD’NT NOTIFIED THE COURT BECAUSE HE DIDN’T KNOW THE
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EXACT APARTMENT UNIT BUT MORESO BECAUSE HE PLANNED, FIRST THING UPON
23 ARRIVING IN TEXAS TO OPEN A CASE IN TRAVIS COUNTY HAVING IT TRANSFERRED
SUBSEQUENTLY INFORMING THE COURT OF A CHANGE OF ADDRESS.
24 MR. TAYLOR DID TRY TO NOTIFY THE COURT BUT HE COULDN’T GET THRU TO
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A PERSON AND HE COULD’T REACH HIS ATTORNEY DIRECTLY.
ADDITIONALLY, MR. TAYLOR COULD NOT LOOK UP ANY OF THE INFORMATION ON
26 THE WEBSITE AS IT IS A PROTECTED AND CONFIDENTIAL CASE, FAMILIAL IN
NATURE.
27 GIVEN, THAT MR. TAYLOR HAD NOT RECEIVED FORMAL SERVICE OR
28 ANY OTHER NOTICE AND THAT HE HAD’NT KNOWLEDGE OF THE HEARING PRIOR TO
JUNE 7TH IT LEFT HIM SUBSTANTIAL LACKING THE ADEQUATE TIME AND
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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RESOURCES TO REPARE AND ARRANGE FOR HIS APPEARANCE.
TAYLOR STRONGLY WISHES TO ESTABLISH A MEANINGFUL,
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CONSISTENT AND INFLUENTIAL RELATIONSHIP WITH HIS DAUGHTER, SO AS YOU
2 CAN IMAGINE HE IS VERY UPSET TO LEARN OF THE RECENT JUDGEMENT.
MR. TAYLOR IS EMPLOYED AND CURRENTLY IN THE PROCESS OF BUYING A IN
3 HOUSE DEMONSTRATING DELIBERATE INTENTION TO SOLIDIFY HIS PLACEMENT
4 TEXAS AND HOPEFUL COMMITMENT TO A STRONG RELATIONSHIP WITH HIS
DAUGHTER GWEN.
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5 MR. TAYLOR, BEING OVERLY ATTENTIVE AND PREPARED WAS EQUIPPED WITH
ALL THE NECESSARY CREAMS, SPRAYS, BENADRYL ETC TENDING TO THE LITTLE
6 BITES MULTIPLE TIMES A DAY FREQUENTLY.
7 TAKING PICTURES OF THE BITES AND MONITORING THEIR PROGRESS, DAILY
MR TAYLOR NOTICED A BITE ON GWEN’S INNER THIGH.
8 WHEN HE WENT TO TAKE A PICTURE GWEN BECAME VISIBLY UPSET AND SAID
“I DON'T LIKE IT WHEN PEOPLE TAKE NAKED PICTURES OF ME “
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MR. TAYLOR RESPONDED “SWEETIE WHAT DO YOU MEAN NAKED PICTURES ? 'YOU’RE
10 NOT NAKED” SHE SAD “WELL NOT YOU , LIKE, OTHER PEOPLE, LIKE FAMILY
MEMBERS AND STUFF”. HE RESPONDED WITH “WHAT FAMILY MEMBERS TAKE NAKED
11 PICTURES OF YOU”
12 SHE “I DON’T WANT TO TALK ABOUT IT” MR. TAYLOR OF COURSE PRESSING
THE ISSUE TRYING TO GET MORE INFORMATION OBSERVED AS SHE BECAME
13 INCREASINGLY UPSET AND CRYING, SCREAMING AND EXPRESSLY EXCLAIMING, “ I
DON’T WANT TO TALK ABOUT IT!” I DON’T WANT TO TALK ABOUT IT!” LOOKING AT HIS
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MOTHER CHARLOTTE URGING HIM TO BRING IT UP ANOTHER DAY AS IT WAS LATE
15 AND SHE WAS UPSET HE DROPPED IT UNTIL RETURNING TO THE STATES A FEW DAYS
LATER.
16 UPSET AND PERPLEXED AS TO THE REALITY BEHIND SUCH A DEMONSTRATIVE
REACTION, MR. TAYLOR CALLED HIS ATTORNEY FOR ADVISE. THEY HAD
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BEEN IN CONTACT ALL ALONG CONSULTING WITH COUNSEL PRIOR TO THE TRIP
18 MAKING SURE THAT HE WAS NOT DOING ANYTHING OUTSIDE OF HIS LEGAL RIGHTS
PURSUANT THE LIMITED ORDERS HE HAD FOR REFERENCE IN TAKING HIS
19 DAUGHTER TO JAMAICA, MR TAYLOR CALLED AND EXPLAINED WHAT HAD
HAPPENED, AND ADVISED HIM TO IMMEDIATELY CALL THE FBI AND FILE A REPORT
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TO WHICH HE DID AND THE FBI REFERRED MR. TAYLOR TO THE LOCAL CPS
21 DIVISION OF TRAVIS COUNTY. MR. TAYLOR FILED REPORT WITH CPS AND THEY
CONDUCTED AN INVESTIGATION AND ALTHOUGH THEIR INVESTIGATION DID NOT
22 REVEAL ANY WRONGDOING THERE WAS NEVER ANY DISPUTE THAT HIS DAUGHTER
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HAD MADE THESE COMMENTS BUT THAT SHE HAD TOLD THE INVESTIGATOR “I JUST
MADE IT UP “ WHICH SOUNDED VERY SUSPICIOUS TO MR. TAYLOR AND HE STILL
24 BELIEVES THAT HIS DAUGHTER HAD BEEN “COACHED”.
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MR TAYLOR STRONGLY BELIEVES THAT THESE EFFORTS TO LITIGATE ARE
26 RETALIATORY IN NATURE. SHE IS ANGRY AND CONTINUES THAT MR TAYLOR DID
WHAT HE FELT THE RIGHT THING TO DO AND COMMISSIONED CPS TO CONDUCT AN
27 INVESTIGATION.
MR TAYLOR IS CONCERNED FOR THE WELL-BEING OF HIS DAUGHTER AND
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WHOLEHEARTEDLY BELIEVES IT IS MORE IMPORTANT THAN EVER THAT HE BE
CONSPICUOUSLY INVOLVED IN HER LIFE AND THAT THE CONSISTENCY OF HIS
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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PRESENCE IS VITAL , ASSURING HIS DAUGHTER GROWS INTO A WOMAN WITH
VALUE, WORK ETHIC AND APPROPRIATELY ALINED PRIORITIES.
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IN ADDITION TO HAVING NOT RECEIVED PROPER NOTICE,
2 BOTH PARENTS, MR TAYLOR AND MS. SANTOS ARE NOW BOTH RESIDENTS OF THE
STATE OF TEXAS FULL TIME REMOVING JURISDICTION FROM ORANGE COUNTY, CA.
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14 LEGAL ARGUMENT
A. THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT AND DEFAULT
15 JUDGMENT THAT WERE ENTERED AGAINST THE DEFENDANT ON THE
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GROUNDS THAT THEY ARE VOID AS THE COURT LACKED JURISDICTION OVER
THE DEFENDANT AS THEY WERE NOT VALIDLY SERVED.
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CODE OF CIVIL PROCEDURE SECTION 473,SUBDIVISION (D) STATES THAT,
19 "THE COURT MAY, UPON MOTION OF THE INJURED PARTY, OR ITS OWN MOTION,
CORRECT CLERICAL MISTAKES IN ITS JUDGMENT OR ORDERS AS ENTERED, SO AS TO
20 CONFORM TO THE JUDGMENT OR ORDER DIRECTED, AND MAY, ON MOTION OF
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EITHER PARTY AFTER NOTICE TO THE OTHER PARTY, SET ASIDE ANY VOID
JUDGMENT OR ORDER."
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B. MR TAYLOR WAS NOT VALIDLY SERVED, FURTHER PERSONAL SERVICE
23 IS THE PREFERRED MEANS OF SERVICE TO NOTIFY A DEFENDANT OF THE
COMMENCEMENT OF A LAWSUIT
24 MR TAYLOR WAS NOT VALIDLY SERVED IN THAT;
25 THE RESPONDENT REFUSES TO SPEAK TO MR. TAYLOR ORALLY, NOR HAD THERE
BEEN ANY ATTEMPT TO EMAIL, FACEBOOK MESSAGE, INSTAGRAM , ETC.
26 THE LAW IN CALIFORNIA IS WELL SETTLED THAT PERSONAL SERVICE IS THE
PREFERRED MEANS OF SERVICE TO NOTIFY A DEFENDANT OF THE COMMENCEMENT
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OF A LAWSUIT.
28 PERSONAL SERVICE IS THE PREFERRED MEANS TO NOTIFY A DEFENDANT OF
THE ISSUANCE OF A SUMMONS AND THE COMMENCEMENT OF A LAWSUIT. OLIVERA
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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V. OLIVERA (1991) 232 CAL.APP.3D 32, 41.
ANY OTHER FORM OF SERVICE OTHER THAN PERSONAL SERVICE IS KNOWN
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AS SUBSTITUTED OR CONSTRUCTIVE SERVICE, DEPENDING ON THE METHOD USED.
2 AND IN USING SUBSTITUTED OR CONSTRUCTIVE SERVICE, THE CALIFORNIA
SUPREME COURT STATED OVER 100 YEARS AGO THAT STRICT COMPLIANCE WITH
3 THE LETTER AND SPIRIT OF THE STATUTES IS REQUIRED
4 "WHEN SUBSTITUTED OR CONSTRUCTIVE SERVICE IS ATTEMPTED, STRICT
COMPLIANCE WITH THE LETTER AND SPIRIT OF THE STATUTES IS REQUIRED." STERN
5 V. JUDSON (1912) 163 CAL. 726, 735.
THE UNITED STATES SUPREME COURT HAS RULED THAT A VOID JUDGMENT
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MUST BE SET ASIDE REGARDLESS OF THE MERITS OF THE UNDERLYING LAWSUIT.
7 THIS WAS IN A CASE WHERE THERE WAS NEVER A VALID SERVICE OF SUMMONS.
"WHERE A PERSON HAS BEEN DEPRIVED OF PROPERTY IN A MANNER
8 CONTRARY TO THE MOST BASIC TENETS OF DUE PROCESS, IT IS NO ANSWER TO SAY
THAT IN HIS PARTICULAR CASE DUE PROCESS OF LAW WOULD HAVE LED TO THE
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SAME RESULT BECAUSE HE HAD NO ADEQUATE DEFENSE UPON THE MERITS."
10 PRELATE V. HEIGHTS MEDICAL CENTER, INC. (1988) 485 US 80, 86–87, S 108.CT. 896, 900
(INTERNAL QUOTES OMITTED).
11 SETTING ASIDE A DEFAULT". AS SHOWN BY THE ATTACHED DECLARATION,
12 THEY JUST FOUND OUT ABOUT THE DEFAULT AND JUDGMENT ON. THUS THEY HAVE
SHOWN DILIGENCE IN SEEKING RELIEF ONCE THEY HAVE PERSONAL
13 KNOWLEDGE THAT A DEFAULT OR JUDGMENT HAS BEEN ENTERED AGAINST THEM.
AND THEY HAVE ATTACHED A COPY
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OF THEIR PROPOSED MOTION TO QUASH AS EXHIBIT _A_ TO THE DECLARATION OF
15 TRAVIS TAYLOR
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2 II.
CONCLUSION
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BASED ON THE ABOVE, MR. TAYLOR RESPECTFULLY REQUESTS THAT THE
4 COURT SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT THAT WERE ENTERED
AGAINST HIM, AND ALLOW HIM TO FILE
5 HIS PROPOSED MOTION TO QUASH SO THAT THIS CASE CAN BE HEARD ON ITS
MERITS, AS THE LAW FAVORS.
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9 RESPECTFULLY,
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14 TRAVIS TAYLOR
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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TRAVIS TAYLOR, DECLARE AS FOLLOWS.
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4. I RESPECTFULLY REQUEST THAT THE COURT SET ASIDE THE DEFAULT AND
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DEFAULT JUDGMENT
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THAT WERE ENTERED AGAINST ME AND ALLOW THAT I FILE MY PROPOSED MOTION
16 TO QUASH SO THAT I CAN HAVE MY DAY IN COURT AND SHOW THAT I WAS NOT
VALIDLY SERVED AND PROPERLY DEFEND MYSELF AGAINST PLAINTIFF'S LAWSUIT
17 AS THE LAW FAVORS.
I DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF
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CALIFORNIA THAT THE FOREGOING IS TRUE AND CORRECT AND THAT THIS
19 DECLARATION WAS EXECUTED ON JUNE 10TH,2018
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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PROOF OF SERVICE
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[X] (BY US MAIL) I DEPOSITED SUCH ENVELOPE IN THE MAIL AT
12 ______________, CALIFORNIA WITH POSTAGE THEREON FULLY
PREPAID. I AM AWARE THAT ON MOTION OF THE PARTY SERVED,
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SERVICE IS PRESUMED INVALID IF POSTAL CANCELLATION DATE
14 OR POSTAGE METER DATE IS MORE THAN ONE DAY AFTER DATE OF
DEPOSIT FOR MAILING IN AFFIDAVIT.
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19 DATED: ————————
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NAME OF PERSON SERVING PAPERS
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT