Research Guide:
Vacating a Default Judgment

Revised on August 22, 2001

Scope:

This research guide is a guide to vacating a Default Judgment. It provides information on the necessary forms, as well as the relevant code sections. The names and call numbers of background sources are provided. These texts are generally located in the California Section of Law School and County Law Libraries or Main Reading Room. This research guide is not intended as a substitute for doing one's own research. If  assistance is needed, you should consult a reference librarian or a library assisytant. Many times the more popular books texts are kept at the reference section and you must check them out..

Definition:

A Default Judgment is obtained by the plaintiff when the defendant does not appear at the hearing or neglects to file an answer to the summons and complaint. The Default Judgment may be set aside or vacated by the court at the request of the defendant if the Motion To Vacate Default Judgment is made within six months of the entry of default and there are adequate grounds on which to vacate the judgment.

Codes [California Code of Civil Procedure (CCP) §§473, 473.1 & 473.5]:

• Mistake, inadvertence, surprise, or excusable neglect.
• Service of summons not in time to defend.
• Defective service of summons.
• Attorney failed to inform defendant about lawsuit or trial date.

Background Sources:

• 3 California Civil Procedure Before Trial 3d ed, Relief From Default or Default Judgment, §56.51-§56.73, Forms §56.74-§56.80, CEB. KFC 995 .C34 1990.
  
• 1 California Practice Guide, Civil Procedure Before Trial, Defaults pp. 5-59 et seq., Rutter. KFC 995 .W4.
  
• 43 Calif. Forms of Pleading and Practice, Chap. 489, Relief From Judgments & Orders. KFC 1010 .A65 C3.
  
• 33 California Forms of Pleading & Practice, Chap. 372, Motions & Orders. KFC 1010 .A65 C3.

Use this for Ex Parte applications when it is necessary to stay execution or recall a writ of possession before the full motion can be heard.

• 7 California Points & Authorities, Defaults, Default Judgments, and Relief from Judgments and Orders. KFC 1010 .B4 (includes sample forms).
  
• B Calif. Civil Litigation Forms Manual, Defaults §§34.1-34.10. CEB. KFC 995 .A65 P49.

Procedural Checklist:

• Prepare a Notice of Motion to Set Aside Default and Default Judgment (Form 56.77 in 3 California Civil Procedure Before Trial (supra).
  
• Prepare a Memorandum of Points & Authorities, 7 California Points & Authorities (supra). Form number is dependent upon the basis of the Motion to Set Aside Default Judgment.

• If the motion is made under CCP §473 it must include facts showing:

• Mistake, inadvertence, or excusable neglect.
• Inexcusable neglect of attorney.
• Judgment void in fact though valid on its face.

• If the motion is made under CCP §473.5 it must include facts showing:

• lack of actual notice not caused by defendant's inexcusable neglect or avoidance of service.

• File and serve notice of motion and supporting papers.
  
• If motion is granted, file responsive paper.

• San Diego County Rules of Court, Div. II, see applicable rules.
• You must consult the local court rules for the county in which the action (proceeding) is pending