Free Motion to Set Aside Default - District Court of California - California

Case 3:07-cv-02525-MMC

Document 17

Filed 01/16/2008

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Wendel, Rosen, Black & Dean LLP

David Goldman (Bar No. 76551) Garret D. Murai (Bar No. 215667) WENDEL, ROSEN, BLACK & DEAN LLP 1111 Broadway, 24th Floor Oakland, CA 94607-4036 Telephone: (510) 834-6600 Fax: (510) 834-1928 Attorneys for Defendants XIAN S. HUANG and CINDY Q. CAO, Trustees of the XIAN HUANG AND CINDY CAO LIVING TRUST UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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CRAIG YATES, an individual; and DISABILITY RIGHTS ENFORCEMENT, EDUCATION, SERVICES: HELPING YOU HELP OTHERS, a California public benefit corporation, Plaintiffs, vs. D & A CAFE INC.; XIAN S. HUANG and CINDY Q. CAO, Trustees of the XIAN HUANG and CINDY CAO LIVING TRUST, Defendants.

Case No. C 07 2525 MMC NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT

Date: Time: Department: Judge: Action Filed: Trial Date:

March 7, 2008 9:00 a.m. Courtroom 7, 19th Fl. Hon. Maxine M. Chesney May 11, 2007 None

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013069.0003\833207.1

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 7, 2008 at 9:00 a.m. in Courtroom 7 of this Court located at 450 Golden Gate Avenue, San Francisco, California, Defendants XIAN S. HUANG and CINDY Q. CAO, Trustees of the XIAN HUANG and CINDY CAO LIVING TRUST, will move the Court to set aside the default entered against them pursuant to Federal Rules of Civil Procedure, Rule 55(c). /// /// ///
NOTICE OF MOTION AND MOTION - Case No. C 07 2525 MMC

Case 3:07-cv-02525-MMC

Document 17

Filed 01/16/2008

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Wendel, Rosen, Black & Dean LLP

Defendants' motion is made on the following grounds: 1. 2. Defendants were never served with the summons or complaint. The proof of service of summons attached to the Request for Entry of Default

provides that the summons and complaint was served on a person named Arla Liu. Defendants do not know Ms. Liu, she is not their agent, and she was not authorized to accept service of process on their behalf. 3. In addition, the letter attached to the Request for Entry of Default was never

received by Defendants. The letter was sent to the former address of Defendant D & A CAFÉ, INC. at 346 7th Street, Oakland, California. Defendants do not reside at or conduct business from that
address.

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Defendants have requested that Plaintiffs CRAIG YATES and DISABILITY

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RIGHTS ENFORCEMENT, EDUCATION, SERVICES: HELPING YOU HELP OTHERS stipulate to set aside the default. Plaintiffs have refused to so stipulate. Defendants motion is based on this Notice of Motion and Motion to Set Aside Default; the accompanying Memorandum of Points and Authorities; Declaration of Xian S. Huang, Declaration of Garret D. Murai; and any and all other pleadings, documents, records, files and other evidence as may be presented. Dated: January 16, 2008 WENDEL, ROSEN, BLACK & DEAN LLP

By:

s/Garret Murai Garret D. Murai Attorneys for Defendants XIAN S. HUANG and CINDY Q. CAO, Trustees of the XIAN HUANG AND CINDY CAO LIVING TRUST

013069.0003\833207.1

NOTICE OF MOTION AND MOTION - Case No. C 07 2525 MMC

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