George J. Paukert   SBN 183124

737 S. Windsor Blvd., Suite 304 Los Angeles, CA 90005

Attorney for Plaintiff, Jeff Wald

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF LOS ANGELES, BEVERLY HILLS

JEFF WALD,

Plaintiff,
vs.

LUKE FORD, an individual and 
dba lukeford.net,and Does 1-20, 
inclusive,

CASE NO.: SC 086263

OPPOSITION TO MOTION TO SET
ASIDE ENTRY OF DEFAULT
JUDGMENT

Date:  January 12, 2006
Time:9:00 a.m.
Dept:X
Judge:Hon. Lisa Hart Cole

Defendants

TO THE COURT AND DEFENDANT AND COUNSEL OF RECORD:

TAKE NOTICE that Plaintiff in the above entitled action opposes Defendant Luke Ford’s (“Ford” or “Defendant”) Motion to Set Aside Entry of Default Judgment. This Opposition is based upon the herein Points and Authorities, Exhibits and Declarations hereto as well as the pleadings on file and any oral or written evidence that may be presented at hearing on the Motion.

///

I.	POINTS AND AUTHORITIES

1.	PROCEDURAL HISTORY

Plaintiff Jeff Wald filed his complaint for Defamation on July 14, 2005.

On September 7, 2005 Defendant was personally served with the complaint and summons.

Receiving no response nor request for an extension to answer from Defendant within 30 days of the service date, Plaintiff filed the Request for Entry of Default. Defendant was served the said request on October 10, 2005.

Default was entered on October 11, 2005.

Defendant filed the instant Motion to Set Aside Entry of Default on December 5, 2005.

2.	ARGUMENT:

A.	Defendant’s Burden of Proof:

Although Motions to Vacate Default are often granted, it is a not a matter of right, nor always granted. Discretion to Vacate Entry of Default under C.C.P. s. 473 is addressed to the sound discretion of the trial judge Carroll v Abbott Laboratories (1982), 32 Cal. 3d 892, 897 [187 Cal.Rptr. 592, 654 P.2d 775]. While section 473 authorizes a court to relieve a party from default suffered through inadvertence, surprise, excusable neglect or mistake, “these words are not meaningless, and the party requesting such relief must affirmatively show the situation is one which clearly falls within such category” Estate of Wolper (1956) 146 Cal. App. 2d 249, 251 [ 303 P.2d 578]” [A] party who seeks relief under [section 473] must make a showing that due to some mistake, either of fact or law, of himself or his counsel, or through some inadvertence, surprise or neglect which may properly be considered excusable, the judgment or order which he seeks relief should be reversed. In other words, a burden is imposed upon the party seeking relief to show why he is entitled to it, and the assumption of this burden necessarily requires the production of evidence. Hewins v. Walbeck (1943) 60 Cal.App. 2d 603, 609—810 141 [P.2d 241]; accord, Tom Thumb Glove Co. v. Han (1978) 78 Cal. App. 3d 1,5 [144 Cal. Rptr. 30] In a motion under section 473 the initial burden is on the moving party to prove excusable neglect by a “preponderance of the evidence.” Price v. Hibbs (1964) 225 Cal. App. 2d 209, 216 [37 Cal.Rptr. 270]; Etchepare v. Ehmke (1955) 137 Cal. App. 2d. 508, 511 [290 P.2d 374]; Weinberger v. Manning (1942) 50 Cal. App. 2d 494, 497 [123 P.2d 531].

Defendant’s entire substantive showing in support of his motion for relief consists of a conclusory declaration by his counsel, not stated even on “information and belief”, that defendant failed to file a response “due to excusable neglect stemming from his medical condition, traveling schedule, financial circumstances, and reasonable failure to secure legal representation, among other reasons.” A statement made without personal knowledge and solely upon information and belief is hearsay and no proof of the facts contained therein, Star Motor Imports Inc. v. Superior Court (1979) 88 Cal. App. 3d 201, 205 [151 Cal. Rptr. 721]; Jeffers v. Screen Extras Guild  Inc. (1955) 134 Cal. App. 2d 622,623 [286 P.2d 30]. Moreover, affidavits or declarations setting forth only conclusions, opinions or ultimate facts are insufficient, Greshko v. County of Los Angeles (1987) 194 Cal. App. 3d 822,834 [239 Cal. Rptr. 846]; Atiya v. Di Bartolo (1976) 63 Cal. App. 3d 121,126 [133 Cal. Rptr. 611]. In other words, the declarations offered by defendant’s counsel in support of relief (due to excusable neglect) are not competent to prove anything. Therefore, the claim of excusable neglect based upon defendant counsel’s declaration does not meet the “preponderance of the evidence” standard which is a predicate for the granting of a section 473 motion. Defendant bases his claim of excusable neglect on financial hardship, medical conditions, traveling schedules among others. None of these claims is supported by any evidence whatsoever.

B.	The claim of Unfamiliarity with Civil Procedure is Spurious.

The moving papers argue that Defendant was unclear about the rules of civil procedure and has hoped to be able to plead his claims at the early court hearings despite the passing of the deadline to file a response. This assertion infers that the Defendant was so unsophisticated and unfamiliar with court procedure. This is not an accurate portrayal of this defendant. A more accurate description of the defendant is seen another “Hollywood” Blog site known as 8763 Wonderland, a true copy attached hereto as Exhibit 1. As stated by the author of this site: “Luke Ford Vs, Jeff Wald (id)

Roger Jacobs posted in L.A. Stories on July 18, 2005

Over at L.A. Observed, Kevin Roderick reports:

“The Hollywood manager (Wald) and the blogger (Luke Ford have been going at it since at least 2002,...”

and as referred to further in this site:

“JEFF WALD VS. LUKE FORD SC086263
… Luke also boasts that the judge in his case is the same judge who presided over Marsha Plafkin’s lawsuit against the University of Judaism.”

It is readily seen when reading this site, and several others, that Defendant is no stranger to litigation, defamation and to Plaintiff himself. For Defendant to paint himself as some poor unsophisticated victim is spurious and untrue.

In any event, the Summons clearly states:
	“You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response and have a copy served on the plaintiff. ... If you do not file your responses on time, you may lose the case by default...”

Clearly, even an unsophisticated person who can read at the third grade level, would understand this summons. The Defendant is of course an intelligent individual who is an author of several web sites and publications. He should be charged with the knowledge of the failure to file a timely response to this lawsuit and the consequences thereof.

C.	The merits of the Case and the Defenses thereto:
Defendant argues that the speech in his web site is protected speech and therefore not defamatory. The merits of the case should not be a basis for relief to default. Should the court wish to entertain the merits on the complaint and the proposed answer contained in the motion, Plaintiff argues at the outset that the offending speech is libel per se and as such not protected. Also the assertion by Defendant that Plaintiff has not suffered any financial damages is untrue, as several pending studio deals (worth millions of dollars) have been suspended as a result of the offending language in Defendant’s blog site. In any event, on a showing of defamation/libel per Se, damages are presumed.

D.	Plaintiff has offered to dismiss the lawsuit should Defendant take down the offending site:
Plaintiff through his counsel has offered to dismiss the lawsuit if Defendant agrees to take down the offending site.
This was communicated by telephone to Defendant on several occasions, while in Pro Se, and to Defendant’s counsel after he was retained. The offer also stated that Plaintiff would not seek any damages or costs, should Defendant so stipulate.
Defendant rejected this offer and wants to litigate the matter apparently on some First Amendment right, but more probably to create more controversy and more food for his Blog site. In any event, the Defendant is now seen as even less unsophisticated or shall we say more sophisticated when it comes to controversy.

E.	DEFENDANT WILL NOT SUFFER FINANCIALLY SHOULD DEFAULT

STAND:

Plaintiff will not seek monetary damages should entry of default stand and Default Judgment be entered. Plaintiff believes that Defendant is not rich and Plaintiff will be satisfied to seek an Order from the Court to have Defendant remove the offending portions of the site.

II	CONCLUSION

It is readily seen above that Defendant has not met his burden of proof for a section 473 motion for relief from entry of default. No evidence has been presented to support his claims of financial hardship, travel or medical conditions. Further, his claim of lack of familiarity with Civil Procedure (and the court system) has a hollow ring to it, based upon his history and former publications. Also, as to the merits of the case, Plaintiff could produce more than sufficient evidence of libel per se and damages thereby inflicted upon him by Defendant. Lastly, Defendant faces no financial loss by Entry of Default as Plaintiff will ask the court only for an order for removal the offending site, a fact Defendant is aware of.

For the above reasons, Defendant’s Motion to Set Aside Entry of Default Judgment (id) should be denied.

Dated:	December 26, 2005

Respectfully submitted,

		George J Paukert, Attorney for

		Plaintiff, Jeff Wald