Home Articles FAQ Site Map
Vacating A Judgment
This article is about the grounds for relief of California default civil court judgments, and is not legal advice because I am not a lawyer. Other states have similar laws.
California Code of Civil Procedure (CCP), sections 473(b), 476(d), and 473.5 specify the grounds (reasons) one can base a motion for a proposed relief of a default judgment. The permitted grounds for relief include:
1) Mistake (CCP 473-b): When a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law, does not constitute excusable mistake, and therefore is not grounds for relief from a default judgment.
2) Surprise (CCP 473-b): When a party is placed in an injurious legal situation, through no fault or negligence of their own, that ordinary prudence would not have guarded against.
3) Inadvertence (CCP 473-b): A lack of attentiveness, inattention, or fault from negligence. However, mere inadvertence does not warrant relief unless, on consideration of all the evidence, the inadvertence is excusable. Forgetting about the case or mislaying the summons and complaint are not sufficient grounds for relief. Inadvertence is often combined with excusable neglect.
4) Excusable Neglect (CCP 473-b): To be excusable, the neglect must have been the act or omission, of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being too busy to respond properly, or being unable to afford an attorney, are not grounds for excusable neglect. Examples of excusable neglect include:
A: Illness that disables the party from responding or appearing in court.
B: Failure to respond because you relied on your attorney to do so.
C: Failure to appear at trial because you relied on misinformation provided by a court officer.
5) The party was not given "actual notice" in time to defend (CCP 473.5): If service of the summons did not result in "actual notice" to a party in time to defend their case, the default may be set aside. "Actual notice" means the party genuinely knew of the litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.
6) Void judgments (CCP 473-d): The court may, on its own motion or the motion of either party, set aside any void judgment. A judgment may be void if the issuing court lacked subject matter jurisdiction over the action, and personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no power to grant, or if the judgment was procured by a fraud on the court.
A common way default judgments are considered void, is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant. Knowledge is not enough, the defendant must be served properly. There are many other ways a default judgment may become void. For more information, Google "California Forms of Pleading and Practice Volume 43, section 489.132".
There are different time limitations on when a motion to vacate can be filed:
A) Within 6 months after entry of the default judgment on grounds of mistake, inadvertence, surprise or excusable neglect, or had no actual notice in time to defend the original case.
B) Within 2 years of the default judgment if service did not result in actual notice in time to defend.
C) At any time after the judgment is granted, if the motion is made within a reasonable time after the discovery of the existence of the judgment. (This last one is a giant "loophole".)
If one wishes to try to set aside a default judgment, one (or their lawyer) needs to:
A) Prepare a notice of a motion to set aside the default and default judgment.
B) Prepare a supporting declaration or affidavit that states the facts showing that the default judgment was the result of one's mistake, inadvertence, surprise, or excusable neglect.
C) Prepare a memorandum of points and authorities.
D) Prepare a proposed responsive pleading (e.g., your answer or demurrer) to the original lawsuit, to show the court that you have a meritorious defense to the original case.
E) File and serve your notice of motion and other support papers, as well as your proposed responsive pleading.
To file papers at a court, one must follow all the court rules. Forms must be typed on pleading paper, which has numbers down the left side. Pleading paper can be generated using Microsoft Word.
See the California Rules of Court, Rule 2.100-2.119, for the required formats. To find out more, and get examples of forms and pleadings, Google the phrases below:
A) California Civil Procedure Before Trial Volume 2, Chapter 38.
B) California Civil Practice: Procedure Volume 4, Volume 29.
C) California Forms of Pleading and Practice Volume 43.
D) California Pretrial Civil Procedure Volume 3, Chapter 36.
E) California Points and Authorities Volume 7, Chapter 70.
The type of responsive pleading that one files, depends on how one decides to respond to the original case against them. Basic overviews of the different types of responsive pleadings are available at http://www.scscourt.org/self_help/civil/lawsuits/defendant.shtml#types.
Most judgment enforcers will return a default judgment to the creditor if the debtor files a motion to vacate. Some creditors specifically put in their contracts that motions to vacate are the creditor's problem. In California and perhaps other States, one can clean up a default judgment by having the judgment debtor served with any post-judgment court document. Six months after this personal service, the debtor cannot claim they did not know about the judgment.
Go Back To Articles JudgmentBuy.com Home Page
|Contact: John Adams at firstname.lastname@example.org|
© Copyright 2001-2017 . Entire site is protected by copyright laws. All rights reserved.