| EUN LIM,
(Petitioner)
vs.
STEVE GORDON, DIRECTOR OF THE DEPARTMENT OF MOTOR VEHICLE, et. al.,
(Respondents) |
Court of Appeal No. _______________
Trial Court Case No: 30-2022-01292761-CU-WM-CJC
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Appeal from the Superior Court of California, Los Angeles County Trial Court Judge BECKLOFF, MITCHELL L.
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| PETITION FOR WRIT OF MANDAMUS | ||
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Eun Lim 17192 Murphy Avenue # 17723 Irvine, California 92623 657-212-9951 rememberingwithoutceasing@proton.me
Petitioner, Pro Se
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TABLE OF CONTENTS
PETITION FOR WRIT OF MANDAMUS. 4
MEMORANDUM OF POINTS AND AUTHORITIES. 4
- INTRODUCTION.. 4
- THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHTS TO A FAIR TRIAL WHEN IT REFUSES TO ENTER A DEFAULT JUDGMENT. 6
- The Standard of Review.. 6
- The Trial Court is violating Petitioner’s right to a fair trial 7
TABLE OF AUTHORITIES
Cases
Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961)…………………………. 5
Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378………………………………………………………………………………….. 5
In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1327…………………………. 6
Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019…………………………………………… 6
Mathew v. Eldridge, 424 U.S. 319, 332-33 (1976)……………………………………….. 6
Constitutional Provisions
California Constitution, Article I, Section 7………………………………………………… 6
PETITION FOR WRIT OF MANDAMUS
Petitioner EUN LIM petitions this Court for a writ of mandate or other appropriate relief, directing the Los Angeles County Superior Court to allow Plaintiff’s Request for Entry of Default against Respondents.
PRAYER
WHEREFORE, Petitioner prays that a writ of mandate issue from this Court commanding the Los Angeles County Superior Court to Enter a Default Judgment against Respondents, and for such other relief as may be just.
VERIFICATION
I am the Petitioner in this case. I have read the foregoing Petition and know its contents. The facts alleged in the Petition are within my own knowledge and I know these facts to be true. I declare under penalty of perjury that the foregoing is true and correct and that this verification was executed on this _______ day of July 2023 at Orange County, California.
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This case concerns the refusal of the Trial Court to enter a default judgment against Respondents. Respondents have failed to file responsive pleadings with the Court. They have also failed to give satisfactory explanation of their failure to respond to Petitioner’s Complaint. Petitioner has detailed below the timelines for Respondents’ default.
After the Respondents failed to adhere to the 30-days’ timeline, Petitioner e-filed a Request for Entry of Default and/or Default Judgment. Petitioner got a received file stamp from the clerk’s office. Since the Respondents have failed to respond to the Complaint, Petitioner is entitled to a judgment in default. The clerks are however intentionally delaying the process for Petitioner’s license reversal.
On Wednesday 7/5/23, Petitioner had a phone call with Robert, who is the clerk in the Superior Court of Los Angeles, and requested for an update on the first four e-filings. Robert said he would let his managers, Robert Rameriz, know. When Petitioner had not received any feedback from the managers clerk by 7/6/23, she decided to drive 1.5 hours to the Court on Thursday, 7/6/23. The clerk, Elizabeth, and Ecela, her supervisor, said they only stamp received the filings. Petitioner then demanded to file the request for clerk’s default and they denied Petitioner’s request.
To seek an explanation of the goings-on, Petitioner filed a request to take judicial Notice and e-filed onto the record on 7-7-23.
The Court docket shows that Petitioner’s proof of service was accepted and filed by the clerks. Petitioner also received an explanation that the Clerks rejected the entry of default because the Respondents’ names are not exactly as they appear on the amended complaint.
After more than 10 rejections, Petitioner received another rejection on Notice Generated Date: 07/13/2023 at 4:07 pm.
Accordingly, Petitioner challenges the said Trial Court’s refusal to enter default judgment on the grounds of violation of her due process right to a fair trial.
Petitioner understands that according to CCP § 1088, “[t]he writ cannot be granted by default. The case must be heard by the court, whether the adverse party appears or not.” Considering the Respondents’ default, there are significant legal grounds, extraordinary facts, and circumstances, which justify this court to issue a writ of mandamus to direct the Trial Court to conduct a default hearing, and enter a judgment in default in Petitioner’s favor.
II. THE TRIAL COURT VIOLATED PETITIONER’S DUE PROCESS RIGHTS TO A FAIR TRIAL WHEN IT REFUSES TO ENTER A DEFAULT JUDGMENT
A. The Standard of Review
When a court hears a case de novo, it is deciding the issues without reference to any legal conclusion or assumption made by the previous court to hear the case. See Cf.Horton v. Liberty Mut. Ins. Co., 367 U.S. 348, 355 (1961).
Appeal Courts apply an independent, or de novo, standard of review to conclusions of law regarding interpretation of evidence. Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 21-22, 31 Cal.Rptr.2d 378. It follows; an appellate court hearing a case de novo may refer to the lower court’s record to determine the facts, but will rule on the evidence and matters of law without deferring to that court’s findings. Id.
B. The Trial Court is violating Petitioner’s right to a fair trial
The words and conduct of [a judge and court clerk can] create a doubt that he or she will be able to be impartial.” See In re Marriage of Tharp (2010) 188 Cal.App.4th 1295, 1327.
The California Constitution, Article I, Section 7, provides: “A person may not be deprived of life, liberty, or property without due process of law…” (emphasis added). “Due Process of Law,” is defined as a procedural safeguard to ensure that life, liberty, or property is not taken without a fair process or procedure. “Procedural due process imposes constraints on governmental decisions which deprive individuals of “liberty” or “property” interests within the meaning of the Due Process Clause…” Mathew v. Eldridge, 424 U.S. 319, 332-33 (1976). (Emphasis added)
A Court’s decision entered in violation of due process is a void decision and should be dismissed and/or reversed. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019.
In the instant action, Petitioner served the Irvine Respondents on May 30, 2023. The deadline for them to file their responsive pleading was June 29, 2023. Steve Gordon was served on June 1, 2023. The deadline for filing a responsive pleading ended on July 1, 2023. However, since July 1st was a weekend, the deadline ended on July 4, 2023.
The Clerks of the Court seemed to collude with Respondents. As already stated herein above, the Clerks failed to act on Petitioner’s request for an entry of default against Respondents. After getting no response from the clerks, Petitioner drove 1.5 hours to the Court, only for the Clerks to deny entering default against the Respondents.
The Clerks of the Court rejected all the e-filings made by Petitioner. It is notable that the Clerks delayed in giving the rejections, and appeared to only wait for Steve Gordon to file his Answer. The foregoing is evidence of the Clerks’ attempts to cover up their blameworthy conduct, by failing to file the rejections, or have them put on record.
Next, the presiding judge illegally transferred Petitioner’s case from the Orange County Superior Court. The transfer of the case to the Los Angeles County Superior Court overburdens Petitioner. She is now forced to drive 1.5 hours from Orange County. It is notable that the transfer was done without a hearing, and without Petitioner’s consent.
Further, Judge Maria Hernandez, the presiding judge of the Superior Court of Orange County, sent incomplete case records to the Los Angeles Superior Court. When Petitioner went to the LA courthouse to inspect the records in the records department on 7/6/23, she could not get her entry of default file stamped. It is notable that Petitioner requested for clarification from the presiding judge Maria Hernandez. However, the judge Hernandez never responded to Petitioner’s demand for clarification and this record was not transferred to LA County. Having an incomplete record would be prejudicial to Petitioner in the event of an appeal. An incomplete record would frustrate Petitioner’s appeal.
CONCLUSION
As a result of the injustice that Petitioner has been subjected to, she cannot access the courts freely. She faces undue hardship, strain, and cannot obtain court records on lacourt.org as a pro se. She, as a pro se litigant, is disadvantaged since she has limited view of the court records online yet the Respondents and their attorneys have full access to all flings. This is prejudicing Petitioner and preventing her full access to her court case online.
Based upon the foregoing arguments, and each of them, it is clear that Justice will not be properly served unless a writ is issued directing the Trial Court to conduct a default hearing, and enter a default judgment against Respondents, grant Petitioner unrestricted and/or full access to the records of the case online, order a complete record transfer from Orange County Superior Court, or alternatively, return the case back to the Orange County Superior Court, and for such other relief as may be just.
DATED: 12 July 2023
Respectfully Submitted,
_______________________________
EUN JUNG LIM
Petitioner, Pro Se
CERTIFICATE OF COMPLIANCE
Pursuant to rule 8.204(c) of the California Rules of Court, I hereby certify that this brief contains 1,253 words. In making this certification, I have relied on the word count of the computer program used to prepare the brief. I have also used a 14-point font.
Respectfully Submitted,
____________________
EUN LIM
Petitioner, pro se
CERTIFICATE OF SERVICE
I hereby certify that, on _________, a copy of the foregoing Petition was filed in this court. I further certify that on the said date, a copy of foregoing Petition was mailed by first-class U.S. Mail, postage prepaid, and properly addressed to the Respondents’ addresses.
Respectfully Submitted,
____________________
EUN JUNG LIM
Petitioner, pro se
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