MEMORANDUM IN SUPPORT OF PETITION FOR WRIT OF MANDATE AND

APPLICATION FOR TEMPORARY STAY (CCP §1085)

The right to trial by jury in unlawful detainer actions is specifically preserved by

statute. “Whenever an issue of fact is presented by the pleadings, it must be tried by a
jury, unless such jury is waived as in other cases. The jury shall be formed in the same
manner as other trial juries in the court in which the action is pending.” (CCP §1171)
To prevent injustice, a court may relieve a party from a judgment taken against
him or her through surprise, mistake, inadvertence, or excusable neglect. (CCP § 473)
“Surprise as used in the section is a condition or situation in which a party is
unexpectedly placed, resulting in damage or injury which ordinary prudence could not
have avoided. A “mistake” of fact exists when a person misunderstands the facts. A
“mistake” of law exists when the facts are known, but the legal consequences are
misunderstood. “Inadvertence” is defined as inattention or fault from negligence. The
“excusable neglect” referred to is neglect that might have been the act of a reasonably
prudent person under the same circumstances. Baratti v Baratti (1952) 109 CA2d 917,
242 P2d 22. Excusable neglect is distinguished from “willfully slumber[ing]” and
making no effort to protect oneself. See Gillingham v Lawrence (1909) 11 CA 231, 104 P
584. When a party makes some affirmative effort in the direction of providing a defense
or in discovering the facts of a situation, but such efforts do not prevent a default, the
Court should grant relief under CCP §473.
California Courts have repeatedly stressed the need for liberal construction of
§473 to insure full and fair representation of each case on it’s merits. All doubts should
be resolved in favor of the moving party.

Section 473 of the code of civil procedure is a remedial provision and is to be

liberally construed so as to dispose of cases upon their substantial merits… even
in a case where there is and doubt as to setting aside of a default, such doubt
should be resolved in favor of the application.
Van Dyke v MacMillian (1958) 162 CA2d 594, 598, 328 P2d 218
 The law does not favor snap judgments. The policy of the law is to have every
litigated case tried upon its merits, and it looks with disfavor upon a party who,
regardless of the merits of his case, attempts to take advantage of the mistake,
surprise, inadvertence or neglect of his adversary. Were a party in default makes
seasonable application to be relieved there from, and files an affidavit and makes
no showing that he has suffered and prejudice or that injustice will result from the
trial of the case upon its merits, very slight evidence will be required to justify a
court in setting aside the default.
Berri v Rogero (1914) 168 C 736, 145 P 95.

The need for liberal construction and a vehicle for relief from default judgments is
nowhere more urgent than in cases of unlawful detainer. The summary procedure of such
case, in particular the 5-day response time permitted by the summary make it even more
likely that hardship and injustice will occur.
Under these circumstances, petitioner respectfully submits that the writ of
mandate petitioned for must issue.

Date:___________________________ _________________________________

Defendant in Pro Per

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Defendant in Pro Per