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SUPERIOR COURT,OF CALIFORNIA
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COUNTY OF LOS ANGELES
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) Petitioner
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CASE NO.:
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) NOTICE OF MOTION AND ) MOTION TO VACATE OR ) SET-ASIDE STIPULATED ) JUDGMENT AND SET THE MATTER FOR ) TRIAL TRIAL,, MEMOR MEMORAND ANDUM UM ) OF POINTS AND AUTHORITIES ) IN SUPPORT THEREOF, DECLARATION Respondent ) ON INCE ARIAS SANCEZ
vs.
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
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NOTICE IS HEREBY GIVEN that, on __________________________, at 8:30 A.M., or
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as soon thereafter as the matter may be heard, in Department A-13 of the above captioned
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court, located at 42011 4th Street West, Lancaster, California, Respondent INCE , will move for
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an order pursuant to Family Law § 2122 setting aside the stipulated Judgment entered into
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between the parties on May 27, 2010 and setting this matter for Trial, on the grounds that said
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agreement was entered into as the result of Fraud and Duress.
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The motion will be based on this motion and notice of hearing, on the declarations of
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attached hereto, on the memorandum of points and authorities served and filed herewith, on the
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papers and records on file herein and on such evidence as may be presented at the hearing of
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the motion.
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Dated: October____, 2010
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Respectfully Submitted __________________________________ I-Respondent
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DECLARATION OF
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I, ., declare: 1.
That I am the Respondent in this action. The facts contained herein are true and
correct to the best of my knowledge and if sworn as a witness, I can testify competently thereto. 2.
This declaration is in lieu of personal testimony, pursuant to C.C.P Sections 2009
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and California Rules of Court Rule 1225, Reifler vs. Superior Court (1974) 39 Cal. App. 3d 479,
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and Marriage of Stevenot Court (1984) 154 Cal. App. 3d 1051.
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3.
Therefore, I request that this declaration be received as evidence and that the
Court permit further offers of proof, other testimony and documentary evidence at time of hearing and/or as otherwise appropriate. 4.
I am filing this Declaration in support of my Motion to set-aside our stipulation in
its entirety and order a Trial on issues. 5.
Initially when I entered into this agreement it was my understanding based on
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what the Petitioner and I had agreed to and discussed that I was only agreeing as to how the
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property I reside in located on Clearwood Court and the property located at 547 P-14, Palmdale
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would be divided. I did not know that this was intended to be a complete and final decision as to
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our entire divorce.
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6.
Petitioner originally approached me and offered me a job with his company. As a
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show of good faith, he had made me new business cards showing my name and position. He
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stated that if I would take the two properties he wanted me to have, would go to work for him,
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and would get rid of my attorney that we would be able to work out an agreement as to the rest
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of our properties instead of going to trial.
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7.
I agreed to this offer since I could no longer afford my attorney anyway, and went
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to work for Petitioner. At the next Court hearing I was shocked to see that the Petitioner still had
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his attorney and even more shocked to learn that they intended for this to be a final agreement
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so that I would only be awarded two properties and Petitioner would get everything else.
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8.
Petitioner asked to speak to me privately and told me that nothing had changed
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and for me to simply trust him. I agreed and signed the stipulation. Once it was signed by the
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Judge the Petitioner fired me. The Petitioner had me sign an agreement stating that I would
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maintain the mortgages on the two properties that I was awarded. The agreement further stated
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that if I did not maintain the properties, he could seek leave of Court to have the properties
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returned to him based on my non-payment of the mortgage. Now that Petitioner has fired me, I
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have waived my right to spousal support because I believed I had a job with his company and
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without a job I have not had the funds with which to maintain the payments on said properties.
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9.
Petitioner has manipulated this situation to his favor so that he can walk away
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with all of our marital estate and leave me with nothing. I feel that he has intentionally misled
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me to trust in him so that he can have it all. I also feel that I entered into this agreement under
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duress because I was not given adequate time to consult an attorney to ensure the agreement
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represented my best interest.
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10.
Even though the properties have no equity, I do not think that this means that he
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should have all of the properties. Were it not for him firing me I would still be working and able
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to pay the mortgage on the properties I was awarded.
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11.
Further, I was convinced to waive my right to spousal support despite the fact
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that Petitioner shows gross monthly earnings of $11,000.00 per month on his income and
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expense declaration. I believe that it is only fair that I be awarded spousal support for a period
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of half the length of our marriage pursuant to code for short term marriages.
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12.
Therefore based on the foregoing, I ask that the Court set-aside our stipulation
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and set this matter for trial so that I can hire an attorney to represent me. Further, since I am no
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longer working I believe that I should receive a temporary order of spousal support which will
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hopefully provide me with enough funds to pay and maintain any properties I am subsequently
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awarded.
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I declare, under penalty of perjury, that the foregoing statements are true and correct to the best of my knowledge. Signed this
day October, 2010 at , California __________________________________ -Respondent
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MEMORANDUM OF POINTS AND AUTHORITIES
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I. 3
A STIPULATION CAN BE SET ASIDE FOR FRAUD, 4
PERJURY, DURESS, OR DEFICIENT MENTAL CAPACITY 5 6
California Family Code § 2120 provides in pertinent part: “The Legislature finds and declares the following:
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(a) The State of California has a strong policy of ensuring the 8 9
division of community and quasi-community property in the dissolution of a marriage as set forth in Division 7 (commencing with Section
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2500), and of providing for fair and sufficient child and spousal 11
support awards. These policy goals can only be implemented with full 12 13
disclosure of community, quasi-community, and separate assets, liabilities, income, and expenses, as provided in Chapter 9
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(commencing with Section 2100), and decisions freely and knowingly made.
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(b) It occasionally happens that the division of property or the 17
award of support, whether made as a result of agreement or trial, is 18 19
inequitable when made due to the nondisclosure or other misconduct of one of the parties.
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(c) The public policy of assuring finality of judgments must be balanced against the public interest in ensuring proper division of
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marital property, in ensuring sufficient support awards, and in deterring misconduct……”
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California Family Code § 2122 states in pertinent part:
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“The grounds and time limits for a motion to set aside a
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judgment, or any part or parts thereof, are governed by this section and shall be one of the following:
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(a) Actual fraud where the defrauded party was kept in ignorance
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or in some other manner was fraudulently prevented from fully
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participating in the proceeding. An action or motion based on fraud
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shall be brought within one year after the date on which the
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complaining party either did discover, or should have discovered, the fraud…..
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(c) Duress. An action or motion based upon duress shall be brought
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within two years after the date of entry of judgment.”
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For all of the foregoing reasons, Respondent respectfully request that the court grant
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Respondent’s motion to set aside the stipulated Judgment, and set the matter for Trial on all
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issued.
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Dated: October____, 2010
Respectfully Submitted __________________________________ -Respondent
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PROOF OF SERVICE
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STATE OF CALIFORNIA COUNTY OF LOS ANGELES
) ) )
ss.
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I am employed in the county aforesaid; I am over the age of eighteen (18) years and not a party to the within entitled action; my business address is: On October ____, 2010 1 served the foregoing document described as NOTICE OF MOTION AND MOTION TO SET ASIDE STIPULATED JUDGMENT AND SET THE MATTER FOR TRIAL, DECLARATIONS OF INCE ARIAS SANCEZ; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF on all the interested parties in this
action by placing the original and/or true copies thereof in sealed envelopes addressed as follows:
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XX BY MAIL: I caused such envelope to be deposited in the mail at Lancaster, California. The envelope was mailed with postage thereon fully prepaid. ___ BY FACSIMILE: I caused such document to be transmitted by means of facsimile machine, the transmittal attached hereto, to the number of: I am “readily familiar” with the firm’s practice of collection and processing of correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. I declare under the laws of the State of California that the above is true and correct. Executed on October____, 2010 at , California.
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