What is a Default Judgment? The San Diego County Public Law Library defines a default judgment as a judgment that is usually obtained by the plaintiff when the defendant does not appear at a hearing or neglects to file an answer to the summons and complaint.
Different time limitations apply depending on the ground(s) you will be claiming. A default judgment or dismissal may be set aside or vacated by the court at the request of a party if:
- A motion is made within six months of the entry of default and if the default is the result of the party’s, “mistake, inadvertence, surprise, or excusable neglect” (California Code of Civil Procedure 473) For example, if the defendant was extremely ill, or the attorney abandoned the client or if there was any fraud of the plaintiff, this would be considered a mistake or inadvertence.
- Within 2 years of the default judgment the service did not result in actual notice in time to defend. The defendant must show that the lack of notice was not caused by his/her deliberate “avoidance of service”(California Code of Civil Procedure 473.5)
If you believe you have the grounds to set aside a default judgment, you will need legal counsel to advise and guide you through the process. There are several notices and documents that need to be prepared and then filed with the court.
- Notice of Motion to Set Aside Default and Default Judgment
- Supporting Declaration or Affidavit that states facts showing that the default and default judgment were the result of a “mistake, inadvertence, surprise, or excusable neglect”(CCCP473)
- Memorandum of Points and Authorities
- A proposed responsive pleading (e.g., Answer or Objection) to the original Summons and Complaint, to show the court that you have a worthy defense to the original case
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This article is for education and marketing purposes only. It does not in any way establish an attorney-client relationship.