The Motion to Set Aside Default Judgment in Los Angeles, California, is a legal request made to a court to overturn a judgment that has been entered against a party who did not receive proper notice of the legal action in time to defend themselves. This motion is crucial for individuals who find themselves facing a judgment without having had the opportunity to present their side of the story. If you believe you have grounds to contest a default judgment, consider filling out the necessary form by clicking the button below.
In the bustling legal landscape of Los Angeles, the Motion to Set Aside Default Judgment is a crucial tool for individuals seeking to rectify a situation where they may have missed an opportunity to defend themselves in court. This form serves as a formal request to the court to overturn a default judgment—essentially a ruling made in favor of one party when the other fails to respond. Under California's Code of Civil Procedure Section 473.5, a party can file this motion if they did not receive proper notice of the lawsuit in time to mount a defense. The motion must be filed within a specific timeframe, typically within two years of the judgment or 180 days after being notified of the default. Along with the motion, the individual must provide an affidavit detailing their lack of notice and include a proposed response or pleading to be filed in the case. This process not only seeks to restore the party's ability to participate in the proceedings but also aims to ensure that all relevant issues are fairly considered by the court. Understanding the nuances of this form can empower individuals to reclaim their rights and engage in the legal process more effectively.
I n d e x of
La w & M ot ion W or k sh op
H a n d ou t s
Generic Point s & Aut horit ies
♦Set Aside Default ( CCP 473 . 5) ( San Bernardino)
♦Opposing Set Aside Default ( CCP 473) ( San Bernardino)
Unlaw ful Det ainer Mot ion
♦Mot ion t o Set Aside Default , Vacat e Judgm ent & St ay Execut ion of Judgm ent ( Vent ura)
General Civil Mot ions/ Collect ions
♦ Mot ion for Paym ent of Judgm ent by I nst allm ent s
( Vent ura)
♦Mot ion in Lim ine t o Exclude Evidence ( Vent ura)
♦ Not ice of Mot ion and Mot ion for Assignm ent Order ( Vent ura)
Guardianship
♦Mot ion for Visit at ion ( Vent ura)
♦Pet it ion for Visit at ion; Order ( San Bernardino)
Discovery
♦Mot ions t o Com pel ( Vent ura)
Fam ily Law
♦Pet it ion for Fam ily Visit at ion ( San Bernardino)
Form at t ing Rules
♦Sum m ary of Form at t ing Rules
Websit e for m or e Vent ur a Super ior Cour t m ot ions:
ht t p: / / w w w . v ent ur a. cour t s. ca. gov / v ent ur aMast er Fr am es14 . ht m
Law & Motion for Self Help Centers April 29, 2010
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MEMORANDUM OF POINTS & AUTHORITIES
IN SUPPORT OF MOTION TO SET ASIDE DEFAULT
Code of Civil Procedure Section 473.5 allows a Court to set aside a default judgment when service of a summons has not resulted in actual notice to a party in time to defend the action. This type of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered. (Code Civ. Proc., §473.5(a).)
The Motion “shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (Code Civ. Proc., §473.5(b).)
Here, the Respondent requests that the Court set aside the default and default judgment entered, and allow the filing of the Response. As explained in the attached declaration, Respondent was unable to defend the case due to lack of service.
Contrary to the Proof of Service of Summons filed in this action, Respondent was not served. (See Declaration) Respondent would like the opportunity to have all the issues decided with the Court’s assistance.
Date __________________
______________________________
Respondent’s Signature
Memorandum of Points & Authorities
Motion to Set Aside Default 473.5
Name: ___________________
Address: _________________
_________________
Telephone: ________________
SUPERIO R C O URTO F C ALIFO RNIA, C O UNTY O F SAN BERNARDINO
DISTRIC T
:
C a se NO .
,
OPPOSI TI ON TO MOTI ON TO SET ASI DE THE
Pe titio ne r
;
: Declarat ion of __________________.
v
DATE:
TIME:
DEPT
Re sp o nd e nt
The Court should deny t he m ot ion t o set aside because t his m ot ion is not support ed
by any sufficient ground under Code of Civil Procedure Sect ion 473( b) , and t herefore t he
Court has no discret ion t o grant relief.
A m ot ion under Code of Civil Procedure Sect ion 473( b) is addressed t o t he sound
discret ion of t he t rial court . ( I ot t v . Fr ank lin ( 1988) 206 Cal. App. 3d 521, 527) . I f t he
m oving part y fails t o show t hat a j udgm ent has been t aken against him or her t hrough
m ist ake, inadvert ence, surprise, or excusable neglect , t he court m ay not grant relief; it has
no discret ion in t he m at t er ( I d. at 528 . )
O p p o sitio n to Mo tio n to Se t Asid e - 1
C a se Na m e : ____________________________________
C a se Num b e r: _________________
Here, as explained in t he at t ached declarat ion, t he m oving part y fails t o m eet t he
burden of proof because: [ check all t hat apply]
1)The m ist ake, inadvert ence, or surprise t hat j ust ifies a court in set t ing aside a default under Code of Civil Procedure Sect ion 473( b) m ust be reasonable. ( Cy r us v . Hav eson ( 1976) 65 Cal. App. 3d 306, 315 . )
2)
An applicat ion for relief from a j udgm ent , dism issal, order, or ot her proceeding
t aken against a part y t hrough his or her m ist ake, inadvert ence, surprise, or
excusable neglect m ust be m ade wit hin a reasonable t im e, not exceeding six
m ont hs, aft er t he j udgm ent , dism issal, order, or proceeding was t aken. ( Code Civ .
Proc. , §473( b) . )
3)Mere m ist ake, inadvert ence, or neglect does not warrant relief under Code of Civil Procedure Sect ion 473( b) unless, on a considerat ion of all t he evidence, it is found t o be excusable. ( Mar t in v . Tay lor ( 1968) 267 Cal. App. 2d 112, 113 . )
4)____ Ot her legal reason : __________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________.
Re sp e c tfully,
Da te d :
[sig na ture ]
[p rint na m e ]
O p p o sitio n to Mo tio n to Se t Asid e - 2
VN147
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address)
Telephone Number
FOR COURT USE ONLY
ATTORNEY FOR (Name):
SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA
LIMITED CIVIL
CASE
800 SOUTH VICTORIA AVE. VENTURA, CA 93009
3855 – F ALAMO ST. SIMI VALLEY, CA 93063-2110
PLAINTIFF/PETITIONER:
DEFENDANT/RESPONDENT:
CASE NUMBER:
NOTICE OF MOTION AND MOTION FOR ORDER
HEARING DATE: ____________________
SETTING ASIDE DEFAULT
TIME: ____________________
VACATING DEFAULT JUDGMENT
COURTROOM: ____________________
STAYING EXECUTION OF JUDGMENT
EXPARTE
COMPLAINT DATE: ____________________
MOTION FOR ORDER SETTING ASIDE DEFAULT/VACATING DEFAULT JUDGMENT
1.Defendant ______________________________________________ does hereby move the court, pursuant to Section 473 of Code of Civil Procedure, for an order:
setting aside the default entered in this action on _________________________________________________________
vacating default judgment entered in this action on _______________________________________________________
2.Defendant further moves for an order permitting defendant to:
file an Answer, a true and correct copy of which is attached to this motion and incorporated by reference. appear at a trial on the merits.
3.
This motion is brought because
default
default judgment was/were taken against defendant:
Defendant was mistaken as to some material fact or law relating to defendant’s duty to respond.
Through inadvertence and/or oversight defendant failed to timely respond.
Defendant was prevented from responding due to an unexpected condition or situation which arose, without any default or negligence on his /her part, and which ordinary care could not have prevented.
Other ____________________________________________________________________________________________
4.Defendant possesses a meritorious defense against the unlawful detainer or other civil action.
Optional Form
NOTICE OF MOTION AND MOTION FOR ORDER VACATING DEFAULT
Page 1 of 2
VN147 (Rev. 01/10)
Short Title:
Case Number:
MOTION FOR ORDER STAYING EXECUTION
5.Defendant, ___________________________________ , respectfully applies under Section 918 of the Code of Civil Procedure, for an order from this court directed to the Sheriff of Ventura County, to plaintiff, and to any other persons acting on behalf of or together with plaintiff, staying execution of the judgment entered in this action on the grounds that:
Defendant would suffer hardship if the judgment were to be executed at this time.
The judgment may be set aside or modified as requested in defendant’s motion to vacate default judgment.
The judgment may be set aside or modified in accordance with defendant’s motion for a new trial.
The judgment may be set aside or modified in accordance with defendant’s motion for judgment not withstanding the verdict.
The judgment may be set aside or modified in accordance with defendant’s motion for relief from forfeiture and restoration of the tenancy under Section 1179 of the Code of Civil Procedure.
6.The motion filed above is filed with this application, and is now pending before this Court.
DECLARATION
7.I am the defendant in this action. I am asking the court to set aside
default judgment in this case.
8.I did not because
file a response to the summons and complaint
appear at the trial in the case
I did not receive the summons and complaint until ________________________ .
I was unable to come to the court because of the following medical emergency:
______________________________________________________________________________________
Other:
9.I have the following defense to
eviction
civil complaint for damages
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: _________________________________________
___________________________
Signature of Defendant
Page 2 of 2
ATTORNEY OR PARTY WITHOUT ATTORNEY (NAME AND ADDRESS).
TELEPHONE NO.:
ATTORNEY FOR (NAME):
800 SOUTH VICTORIA AVE., VENTURA CA. 93009
3855 - F ALAMO ST., SIMI VALLEY, CA. 93063-2110
Date:
MOTION FOR PAYMENT OF JUDGMENT BY INSTALLMENTS
Time:
Courtroom:
NOTICE IS HEREBY GIVEN that on
, at
a.m
p.m. or as soon
thereafter as the matter may be heard, in Courtroom
of the above-captioned court, defendant
shall move the court for an order permitting payment of the judgment in the within action to
be paid in installments.
This motion is made pursuant to:
California Code of Civil Procedure Section 582.5
California Vehicle Code sections 16379 and 16380.
on the grounds that the defendant
does not have the means to pay the judgment in this action.
is severely restricted in finding employment without the ability to drive.
Facts supporting this motion are set forth in the following declaration.
Judgment debtor requests a payment schedule as follows:
dollars ($
) per month commencing on
each succeeding month thereafter until the entire $
(Signature of Defendant)
(Type or Print Name)
I,
, declare as follows:
1.
I am the judgment debtor in this action. I am a resident of the County of
, State of California.
I have personal knowledge of the following facts and if called upon to testify, I could and would give competent testimony to
the facts stated in this declaration.
2.
On or about
, I was involved in a motor vehicle accident. At the time of the accident I did not have
insurance to cover me for liability resulting from the accident.
VN153 [Rev. 07/01/03]
Page one of two
Other (describe) ___________________________________________________________________________________
__________________________________________________________________________________________________
3.On or about _________________________________, a judgment was entered against me in this case in the sum of $ __________
in damages and $ _____________________________ in costs; and that the total amount of the judgment is $________________.
4.I am not able to pay the judgment because ______________________________________________________________________
________________________________________________________________________________________________________
5.As a result of the judgment against me in this case:
my driver's license has been suspended. I am unable to work without a driver's license because:
_____________________________________________________________________________________________________
Other (describe) ____________________________________________________________________________________
___________________________________________________________________________________________________
6. In order to
get my driver's license reinstated, I must arrange for a payment schedule which I can reasonably meet.
7.My monthly income is $ ____________________________. I have _______________ persons living in my household whom I support. Proof of my income is attached to this declaration as Exhibit "A". My completed financial statement is attached to this declaration as Exhibit "B". I believe I can make payments of $ ____________ per month commencing on _________________.
Executed on ______________________________, at _________________________________ California.
Type or Print Name
VN153 Rev. 01/01/03
Page two of two
ATTORNEY OR PARTY WITHOUT ATTORNEY (name and Address):
PHONE NO.:
SUPERIOR COURT OF CALIFORNIA, COUNTY OF VENTURA LIMITED
CIVIL CASE
STREET ADDRESS:
MAILING ADDRESS:
CITY AND ZIP CODE:
BRANCH NAME:
CASE NAME::
NOTICED MOTION TO EXCLUDE EVIDENCE (CCP 454)
MOTION IN LIMINE (CRC 3.1112(F))
Hearing Date:
Trial Date:
Date of Filing Complaint: ______________________
SUMMARY OF RELEVANT FACTS
1.The factual issues in dispute in this case to which this motion is directed are as follows:
__________________________________________________________________________________________
REQUEST TO EXCLUDE EVIDENCE AND LEGAL AUTHORITY FOR EXCLUSION
2. Plaintiff Defendant _______________________________________, requests that the
(Your Name)
following evidence be excluded:
Evidence of money allegedly owed by defendant to plaintiff. Defendant served plaintiff with a Demand for Specific Statement of Account (Bill of Particulars) on _________________________, but plaintiff did not provide any response. Under Code of Civil Procedure section 454, and the holding in Vassere
v.Joerger, 10 Cal.2d 689, 76 P.2d 656 (1983), the court has the authority to preclude plaintiff from presenting evidence of the alleged debt.
mot.shlac.006.rev.8.20.07
MOTION TO EXCLUDE EVIDENCE / MOTION IN LIMINE
Once you have gathered the necessary information, you can begin filling out the Motion to Set Aside Default Judgment form. This process requires attention to detail, as accurate information is crucial for the court to consider your request. Follow the steps carefully to ensure you complete the form correctly.
After submitting the motion, you will need to wait for the court to schedule a hearing. Be prepared to present your case and provide any necessary evidence or documentation to support your request. It's important to stay informed about any court dates or additional requirements that may arise.
What is a Motion to Set Aside Default Judgment?
A Motion to Set Aside Default Judgment is a legal request made to a court to annul a judgment that was entered against a party who did not respond to a lawsuit. In California, this motion is governed by Code of Civil Procedure Section 473.5. It allows individuals to challenge a default judgment if they did not receive actual notice of the lawsuit in time to defend themselves.
Who can file a Motion to Set Aside Default Judgment?
Any party who has had a default judgment entered against them can file this motion. Typically, this applies to defendants who were not properly served with the summons or who were unaware of the legal action taken against them. It is essential that the motion is filed within the time limits set by the law.
What are the time limits for filing this motion?
The motion must be filed within a reasonable time frame. Specifically, it should be filed no later than two years after the default judgment was entered or 180 days after the party received written notice of the default judgment. This ensures that the court can address the motion in a timely manner.
What information must be included in the motion?
The motion must include an affidavit stating that the lack of notice was not due to the party's own avoidance of service or negligence. Additionally, it should attach a proposed answer or other pleading that the party wishes to file in the underlying case. This demonstrates the party's intention to contest the claims made against them.
What happens after the motion is filed?
Once the motion is filed, the court will schedule a hearing. Both the moving party and the opposing party will have the opportunity to present their arguments. The court will then decide whether to grant or deny the motion based on the evidence and arguments presented.
What are common reasons for filing this motion?
Common reasons include not receiving proper service of the summons, being unaware of the lawsuit due to circumstances beyond the party's control, or having a reasonable mistake regarding the legal requirements to respond. Each case is unique, and the specific facts will influence the court's decision.
Can the motion be opposed?
Yes, the opposing party can file an opposition to the motion. They may argue that the moving party has not met the legal standards required to set aside the default judgment. The court will consider both sides before making a ruling.
What if the motion is denied?
If the motion to set aside the default judgment is denied, the original judgment remains in effect. The party may have limited options for appeal, depending on the circumstances. It is advisable to consult with a legal expert to explore potential next steps.
Where can I find more information about this process?
For more detailed guidance, individuals can refer to local court resources or websites, such as the Ventura Superior Court's official site. These resources often provide forms, instructions, and additional information about the motion process.
Filling out the Motion to Set Aside Default Judgment form can be a daunting task, and many people make common mistakes that can hinder their chances of success. One frequent error is failing to provide sufficient details in the affidavit. The form requires a clear explanation of why the individual did not receive actual notice of the judgment in time to defend themselves. Simply stating that they were unaware is not enough; the affidavit must demonstrate that this lack of notice was not due to avoidance or negligence.
Another common mistake is not adhering to the required timelines. The law specifies that the motion must be filed within a certain period, either two years after the judgment or 180 days after receiving notice of the default. Missing these deadlines can result in an automatic denial of the motion, regardless of the merits of the case. It's crucial to keep track of these dates and act promptly.
People often overlook the necessity of including a proposed answer or other pleading with their motion. This is a critical component that shows the court that the respondent has a legitimate defense. Without this, the court may view the motion as incomplete and may deny it simply for lack of necessary documentation.
Additionally, many individuals do not provide adequate evidence to support their claims. Relying solely on personal statements without corroborating documents can weaken the case. For instance, if someone claims they were unable to respond due to an emergency, they should include any relevant documentation that can substantiate this assertion.
Another mistake involves the language used in the motion. It’s important to be clear and concise. Legal jargon can confuse the reader, and using overly complicated language may detract from the main points. A straightforward approach can often be more persuasive and easier for the court to understand.
Some people fail to check for typographical errors or inconsistencies in their forms. A simple mistake in a name or date can lead to complications or even a rejection of the motion. It's essential to review the entire document carefully before submission.
Moreover, individuals sometimes forget to sign the motion or provide their contact information. An unsigned motion is typically considered invalid, and the lack of contact details can prevent the court from reaching out for any clarifications or additional information.
Finally, neglecting to serve the motion properly can be detrimental. It's not enough to file the motion with the court; it must also be served to the opposing party. Failing to do so can lead to further complications and may result in the motion being dismissed.
By being mindful of these common mistakes, individuals can improve their chances of successfully setting aside a default judgment. Attention to detail and adherence to procedural requirements are key components in navigating this process effectively.
When filing a Motion to Set Aside Default Judgment in Los Angeles, California, several other forms and documents are commonly used to support or contest the motion. Understanding these documents can help clarify the process and improve the chances of a favorable outcome.
Each of these documents plays a crucial role in the motion process. They provide necessary context, legal grounding, and procedural clarity, helping to navigate the complexities of the legal system effectively.
When filling out the Motion to Set Aside Default Judgment form in Los Angeles, California, it is essential to follow certain guidelines to ensure the process goes smoothly. Here are nine important dos and don’ts:
Following these guidelines can significantly improve the chances of your motion being accepted and processed efficiently.
In reality, the motion to set aside a default judgment must be filed within specific time limits. These include two years after the default judgment or 180 days after receiving notice of the judgment.
While failing to respond can result in a default judgment, the motion to set aside can be used if the party did not receive proper notice of the action.
The court has discretion in granting the motion. The moving party must provide sufficient evidence to support their claim.
The reasons must be valid under the law, such as mistake, inadvertence, or excusable neglect. Simply stating a desire to contest the judgment is not enough.
The motion must be accompanied by an affidavit showing the reasons for the lack of notice and a proposed answer or pleading.
The court typically requires that the moving party demonstrate a valid defense to the claims made against them to consider setting aside the judgment.
While individuals can represent themselves, having legal counsel can significantly improve the chances of success due to their understanding of the legal process.
A hearing may not be scheduled unless the court finds sufficient grounds in the motion. The court's discretion plays a crucial role.
Default judgments can be contested through the motion to set aside, provided the proper legal grounds are met.
It is essential to explain why the party did not respond initially, as this helps establish the basis for the motion.
Understand the Purpose: The Motion to Set Aside Default Judgment is used when a party did not receive proper notice of a legal action, preventing them from defending themselves.
Know the Time Limits: You must file this motion within a specific timeframe: either within two years of the default judgment or within 180 days after receiving written notice of the judgment.
Provide Evidence: An affidavit is required to demonstrate that the lack of notice was not due to your own neglect or avoidance of service.
Attach Necessary Documents: Include a copy of the proposed answer or motion you intend to file in the case along with your motion.
Respond to Opposition: Be prepared for the possibility that the other party may oppose your motion, claiming that you have not met the necessary legal grounds for setting aside the judgment.
Meritorious Defense: You must show that you have a valid defense against the claims made in the original case, which strengthens your argument for setting aside the default judgment.
Seek Assistance: Consider consulting with a legal professional or visiting a self-help center for guidance on completing the motion correctly.