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JEFFREY CABOT MYERS, STATE BAR NO. 149052

LAW OFFICES OF CRAIG A. HOLTZ
330 N. Brand Boulevard, Suite 950
Glendale, CA 91203-4422
Telephone No. (818) 956-4366
Facsimile No. (866) 610-0774
Attorney for Defendant and Cross-Defendant BERNARD ALLEN KHALILI

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

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JAMES M. STONE, and THERESE STONE, ) Case No.: SC 090744

individually and as representative of the
)
ESTATE OF KATE THERESE STONE,
) Judge: Hon. Joseph H. Biderman
) Dept: WEK
Plaintiffs,
)
) NOTICE OF MOTION AND MOTION TO SET
vs.
) ASIDE JUDGMENT DEEMING REQUEST FOR
) ADMISSIONS DEEMED ADMITTED;
CITY OF BEVERLY HILLS; SHALOM
) MEMORANDUM OF POINTS AND
GABAY and MOSHE ZADOK, Individuals ) AUTHORITIES; DECLARATION OF JEFFREY
Doing Business As AVIS UNOCAL 76 and ) CABOT MYERS; DECLARATION OF
DOES 1 through 100, inclusive,
) JENNEFER SOLOMON
)
Defendants.
)
)
) Action Filed: 08/16/06
AND RELATED CROSS-ACTIONS
Trial Date: 11/03/08

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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:

PLEASE TAKE NOTICE that on

, 2008, at :30 A.M., or as soon thereafter as the

matter may be heard in Department WEK of the above-entitled court located at 1725 Main
Street, Santa Monica CA 94104, Defendant and Cross-Defendant BERNARD ALLEN
KHALILI (KHALILI) will and hereby does move this court for an Order Setting Aside the

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MOTION TO SET ASIDE JUDGMENT

Judgment deeming Request for Admissions deemed admitted.

This motion is brought pursuant to provisions of California Code of Civil Procedure,

473 on the grounds of mistake, inadvertence and/or excusable neglect. Further, this motion will

be based on this Notice of Motion, the Memorandum of Points and Authorities, the declaration

of Jeffrey Cabot Myers, declaration of Jennifer Solomon, and the exhibits hereto; all pleadings

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and papers on file herein, and such other and further oral and documentary evidence as may be
presented at the time of the hearing on the motion.

Dated: May ____, 2008

LAW OFFICES OF CRAIG A. HOLTZ

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By

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JEFFREY CABOT MYERS

Attorney for Defendant and Cross-Defendant
BERNARD ALLEN KHALILI

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MOTION TO SET ASIDE JUDGMENT

MEMORANDUM OF POINTS AND AUTHORITIES

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1.

INTRODUCTION

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This action arises out of a fatal automobile accident that occurred on August 23, 2005 at

on Wilshire Boulevard west of Whittier Drive. Related to the accident, defendant KHALILI

was charged and convicted of vehicular manslaughter and sentenced to four (4) years in state

prison. Defendant is currently incarcerated in the Jamestown Conservation Center in

Jamestown, California.

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On December 19, 2007 Defendant/Cross-defendant CITY OF BEVERLY HILLS

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(CITY) served their Request for Admissions on Defendant KHALILI. Defendant CITY was

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aware at the time of serving the Request for Admissions, Defendant KHALILI was incarcerated

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in state prison. At the time CITY served the discovery on defendant KHALILI, he was

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incarcerated at the North Kern County Prison. Defense counsel forwarded the propounded

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discovery from CITY to KHALILI at the North Kern County Prison. When KHALILI did not

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respond to the discovery a few days before they were due, defense counsel learned that

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KHALILI had been transferred to a prison in Jamestown, CA from North Kern prison to

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Jamestown Conservation Center. Jamestown is located over 450 miles from Los Angeles and .

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For purposes of obtaining discovery, defense counsel associated in counsel in Northern

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California, Jennifer Solomon, whose office is located in San Francisco, approximately 135

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miles from Jamestown. Ms. Solomon was to: a) attend/defend KHALILI at deposition; and b)

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meet with KHALILI and obtain discovery responses due to the CITY.

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Ms. Solomon met with KHALILI on March 20, 2008 and obtained discovery responses

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from him. However, at the time Ms. Solomon meet with KHALILI, she forgot the case file,

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which contained the verifications, at her office. Regrettably, Ms. Solomon did not obtain

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Verifications to the discovery responses.

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Defense counsel is in the process of obtaining the verifications and will provide them to

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the CITYs attorney as soon as possible. Logistically, we are required to communicate with our

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MOTION TO SET ASIDE JUDGMENT

client through the Prison Litigation Coordinator, Emma McCue, so I anticipate providing

verifications by June 15, 2008.

following factors:

a)

Defendant requests the courts indulgence based on the

Defendant KHALILI has already been deposed and the information

requested has already been obtained;

b)

Unverified responses without objection were provided;

c)

Inadvertence caused the omission;

d)

Curing the defect is more time consuming than usual due to defendants

incarceration.

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2.

CALIFORNIA CODE OF CIVIL PROCEDURE 473 PERMITS RELIEF FROM

ATTORNEY MISTAKE, INADVERTANCE AND EXCUSABLE NEGLECT.

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California Code of Civil Procedure 473(b) states:

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The court may, upon any terms as may be just, relieve a party or his or

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her legal representative from a judgment, dismissal, order, or other

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proceeding taken against him or her through his or her mistake,

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inadvertence, surprise, or excusable neglect.

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The court in Zamora v. Clayborn Contracting Group, Inc., 28 Cal.4th 249 (2002)

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reasoned discretionary relief from a judgment or order should be granted when it is of the type

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of mistake made by the attorney anyone could have made.

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In the case at bar, counsel in Northern California, Jennifer Solomon, forgetting the file

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before leaving on a day long trip to Jamestown prison is a common mistake shared by every

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person some time or another. Such mistake, inadvertence and excusable is common place.

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Defendant has provided all parties with unverified discovery responses without objections and

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has sent discovery responses and verifications to defendant KHALILI overnight express and

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MOTION TO SET ASIDE JUDGMENT

expect to receive signed verifications in the coming days. Said verifications will be provided to

all parties no later than June 5, 2008.

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3.

CONCLUSION

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Based on the statutory, case law and good faith declarations presented by attorneys

regarding their mistake, inadvertence and excusable neglect, it is respectfully requested that this

court set aside the judgment deeming defendants responses to Request for Admissions deemed

admitted.

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Dated: May ____, 2008

LAW OFFICES OF CRAIG A. HOLTZ

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By
JEFFREY CABOT MYERS
Attorney for Defendant and Cross-Defendant
BERNARD ALLEN KHALILI

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MOTION TO SET ASIDE JUDGMENT

DECLARATION OF JEFFREY CABOT MYERS

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I, Jeffrey Cabot Myers, declare:

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1. That I am an attorney at law, admitted to practice before all of the Courts of

the State of California, and if called upon, could and would competently testify to the following

facts of my own personal knowledge:

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2. That I am the attorney primarily responsible for the handling of the file

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entitled James M. Stone v. City of Beverly Hills, Los Angeles Superior Court Case Number SC

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090744.

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3.

My client is currently incarcerated in state prison in Jamestown, California

approximately 450 miles away from Los Angeles in a remote location.

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4.

My clients deposition was taken at the prison on March 27, 2008. I

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associated in counsel in Northern California, Jennifer Solomon, to: a) attend/defend my client

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at the deposition; b) prepare discovery responses due to the CITY. Our prior communications

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to my client were not responded to relative to the discovery because he was transferred to the

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prison in Jamestown, CA from Kern prison without our knowledge.

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5.

Ms. Solomon indeed attended the deposition and prepared discovery

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responses. As of the date of the writing of this Declaration, responses have been served on the

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CITYs attorneys without objection.

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6.

Regrettably, Ms. Solomon did not obtain Verifications to the discovery

responses. I did not learn of this problem until May 12, 2008.
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We are obtaining the verifications and will provide them to the CITYs

attorney as soon as possible. Logistically, we are required to communicate with our client

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MOTION TO SET ASIDE JUDGMENT

through the Prison Litigation Coordinator, Emma McCue, so I anticipate providing

verifications by June 15, 2008. I request the courts indulgence based on the following factors:

a)

My client has already been deposed and the information requested has
already been obtained;

b)

Unverified responses without objection were provided;

c)

Inadvertence caused the omission;

d)

Curing the defect is more time consuming than usual due to my clients

incarceration.

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I declare under penalty of perjury under the laws of the State of California that the

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foregoing is true and correct and that this Declaration was executed on May ___, 2008 at

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Glendale, California.

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______________________________
JEFFREY CABOT MYERS
Declarant

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MOTION TO SET ASIDE JUDGMENT

Superior Court-Unlimited
PROOF OF SERVICE
I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not
a party to the within action; my business address is 330 North Brand Blvd., Suite 950, Glendale, CA
91203
On date set forth below, I served the foregoing document(s) described as * on the parties in this
action
[ ] by transmitting via facsimile the document(s) listed above to the fax number(s) set forth below, or as
stated on the attached service list, on this date before 5:00 pm.
[X] by placing the true copies thereof enclosed in sealed envelopes addressed as followed or as stated on
the attached mailing list:
[X] BY MAIL
[ ]
I deposited such envelope in the mail at Glendale, California. The envelope was mailed
with postage thereon fully prepaid.
[X]
As follows: I am "readily familiar" with the firm's practice of collection and processing
correspondence for mailing.
Under that practice, it would be deposited with U.S. postal service on that same day with
postage thereon fully prepaid at Glendale, California in the ordinary course of business. I
am aware that on motion of the party served, service is presumed invalid if postal
cancellation date or postage meter date is more than one day after date of deposit for
mailing in affidavit.
[ ] BY FAX
I caused the documents described above to be faxed on the interested parties in this action
pursuant to CRC Rule 2008 (b) and CCP 1013(e). The facsimile machine I used complied with
CRC Rule 2003(3). The telephone number of the sending facsimile machine was (818) 9564388. The transmission was properly issued by the transmitting facsimile machine, and the
transmission was reported as complete and without error.
[] (State) I declare under penalty of perjury under the laws of the State of California that the above is
true and correct.
[x ] (Federal) I declare that I am employed in the office of a member of the bar of this court at whose
direction the service was made.
Executed on *, at Glendale, California.
ROSA BARRETO
Type or Print Name

Signature

Superior Court-Unlimited
Rahul Raviopudi, Esq.
Panish, Shea & Boyle LLP
11111 Santa Monica Blvd #700
Los Angeles, CA 90025
(310) 477-1700 FAX (310) 477-1699
Attorneys for Plaintiffs
Philip E. Black, Esq.
Law Offices of Philip E. Black
370 North Westlake Blvd., Ste. 100
Westlake Village, CA 91362-7039
(805)494-4321 Fax (805) 494-4382
Attys for Deft & XComp City of Beverly Hills
Michael H. Artinian, Esq.
Specter & Willoughby, LLP
4675 MacArthur Court, Suite 1150
Newport Beach, CA 92660
949-833-9400 Fax (949) 833-9425
Attys for X-Deft. Conoco Phillips and El Toro Company
David Louis Schaffer, Esq.
Stone & Hiles LLP
16633 Ventura Blvd., No. 1420
Encino, CA 91436
(818) 386-0600 Fax (818) 386-0649
Attys for Deft/X-Deft Shalom Gaby