The Motion to Set Aside Default Judgment in Los Angeles, California, allows a party to request the court to overturn a default judgment if they did not receive proper notice of the legal action in time to respond. This motion must be filed within specific timeframes and requires supporting documentation to demonstrate that the lack of notice was not due to the party's own negligence. If you believe you have grounds to set aside a default judgment, consider filling out the form by clicking the button below.
In Los Angeles, the Motion to Set Aside Default Judgment is a crucial legal tool for individuals who find themselves facing a judgment without having had the opportunity to defend themselves. This motion, governed by California's Code of Civil Procedure Section 473.5, is specifically designed for situations where a party did not receive actual notice of a summons in time to respond adequately. To initiate this process, the moving party must file the motion within a specified timeframe—either within two years of the default judgment or within 180 days of receiving written notice of the judgment. Accompanying the motion, the party must provide an affidavit that demonstrates their lack of notice was not due to their own avoidance or negligence. Importantly, the motion allows the court to reconsider the default judgment, giving the respondent a chance to present their case and any defenses they may have. The form also outlines the necessary components, including a declaration explaining the circumstances that led to the lack of notice and a proposed answer or other pleading to be filed in the action. As such, this motion not only serves as a means to challenge a default judgment but also underscores the importance of fair notice and the right to a fair hearing in the judicial process.
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
Filling out the Motion to Set Aside Default Judgment form is an important step in seeking relief from a judgment that you believe was entered improperly. After you complete the form, you will need to file it with the court and serve it to the other party involved in the case. This process will allow the court to review your request and decide whether to grant your motion.
A Motion to Set Aside Default Judgment is a legal request made to a court to overturn a default judgment that was entered against a party. This motion is typically filed when the party did not receive proper notice of the legal action in time to respond. It allows the party to present their case and defend against the claims made in the lawsuit.
Any party who has had a default judgment entered against them can file this motion. This includes defendants in civil cases who were not properly served with the summons or did not receive actual notice of the action in time to respond.
The primary grounds for filing a Motion to Set Aside Default Judgment include:
The motion must be filed within a reasonable time frame, which cannot exceed two years after the entry of the default judgment or 180 days after receiving written notice of the default. It is crucial to act promptly to avoid missing these deadlines.
When filing the motion, you must include an affidavit that explains why you did not receive actual notice in time to defend the action. Additionally, you should attach a copy of your proposed answer or other pleading that you wish to file in the case.
Once the motion is filed, the court will schedule a hearing. Both parties 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.
Yes, the opposing party can file an opposition to the motion. They may argue that the grounds for setting aside the judgment are insufficient or that the moving party failed to meet the necessary legal standards.
If your motion is denied, you may have limited options. You can consider appealing the decision if there are valid grounds for appeal. Consulting with a legal professional can provide guidance on the best course of action moving forward.
Incomplete Information: One common mistake is failing to fill out all required sections of the form. Each part is essential for the court to understand the basis of your motion. Missing information can lead to delays or even dismissal of your request.
Not Meeting Deadlines: It is crucial to file the motion within the specified time frames. The law allows for a motion to be filed within two years of the judgment or 180 days after receiving notice of the judgment. Ignoring these deadlines can result in the motion being denied.
Lack of Supporting Documentation: Failing to include necessary documents, such as an affidavit or a proposed answer, can weaken your case. The court requires proof of your claims, so providing adequate supporting materials is vital.
Inadequate Explanation of Circumstances: The motion should clearly explain why you did not receive notice in time to defend yourself. Vague or unclear explanations may not convince the court to grant your request. Be specific about the circumstances that led to the default judgment.
The process of setting aside a default judgment in Los Angeles, California, involves several forms and documents that may accompany the primary motion. Each document serves a specific purpose in the legal proceedings, ensuring that all parties are adequately informed and that due process is followed. Below is a list of commonly used forms related to a Motion to Set Aside Default Judgment.
Each of these documents plays a crucial role in the legal process surrounding a default judgment. Understanding their purposes can help individuals navigate the complexities of the legal system more effectively.
The first document that bears similarity to the Motion to Set Aside Default Judgment is the Motion to Set Aside Default under California Code of Civil Procedure Section 473. This motion serves a similar purpose, allowing a party to request that the court nullify a default that was entered against them. The grounds for this motion typically include mistakes, inadvertence, or excusable neglect that prevented the party from responding in a timely manner. Just as with the Motion to Set Aside Default Judgment, the party must demonstrate that their failure to respond was not due to their own avoidance of service or negligence.
Another closely related document is the Opposition to Motion to Set Aside Default. This document is filed by the opposing party who seeks to challenge the request to set aside the default. It outlines reasons why the court should deny the motion, often arguing that the moving party has not met the necessary legal standards. Similar to the Motion to Set Aside Default Judgment, this opposition requires a clear presentation of facts and legal arguments to support its position, ensuring that the court has a comprehensive view of both sides of the issue.
The Motion to Set Aside Default, Vacate Judgment & Stay Execution of Judgment is also akin to the Motion to Set Aside Default Judgment. This document combines multiple requests into one, seeking to not only set aside the default but also to vacate any judgments that have been made and to halt any enforcement actions. This comprehensive approach allows the respondent to address all aspects of the case in a single motion, which can streamline the court's process and provide a clearer path for resolution.
In the realm of civil motions, the Motion for Payment of Judgment by Installments is another document that shares some similarities. While its primary focus is on the payment terms of a judgment rather than the setting aside of a default, it still reflects a party's attempt to manage their obligations in a way that is more manageable. Both motions are rooted in the desire for fairness and the opportunity to address issues that may arise from a judgment.
The Motion in Limine to Exclude Evidence is another document that can be compared to the Motion to Set Aside Default Judgment. Though it serves a different function, both motions aim to protect a party's rights during legal proceedings. The Motion in Limine seeks to prevent certain evidence from being presented in court, while the Motion to Set Aside Default Judgment seeks to ensure that a party is given the opportunity to present their case. Both documents reflect the importance of procedural fairness in the legal process.
Lastly, the Notice of Motion and Motion for Assignment Order is similar in that it involves a request to the court regarding the management of a case. While this motion deals with the assignment of judgment amounts to creditors, it shares the common goal of ensuring that the legal process is followed correctly. Like the Motion to Set Aside Default Judgment, it requires clear documentation and justification for the request being made, emphasizing the importance of transparency and accountability in legal proceedings.
When filling out the Motion to Set Aside Default Judgment form in Los Angeles, California, it is essential to be careful and precise. Here are some important dos and don'ts to consider:
This is not true. There are strict time limits. The motion must be filed within two years after the default judgment or within 180 days after receiving written notice of the judgment. Missing these deadlines can prevent you from having your case heard.
In fact, you must provide an affidavit showing that you were not properly notified of the action in time to defend yourself. This requirement is crucial for the court to consider your motion.
This is misleading. The court has discretion and will only grant the motion if you can demonstrate that your lack of notice was not due to your own neglect or avoidance of service. Simply filing the motion does not guarantee relief.
This is incorrect. The evidence you provide must be relevant and admissible. The court will evaluate the evidence carefully, and irrelevant information may weaken your case.
Understanding the Motion: The Motion to Set Aside Default Judgment is a legal request made to the court to cancel a judgment that was entered without the party's participation. This motion is particularly important when a party did not receive proper notice of the original proceedings.
Time Limits: It is crucial to act quickly. The motion must be filed within a specific timeframe: either within two years of the default judgment or within 180 days of receiving notice of the judgment. Missing these deadlines can hinder your ability to contest the judgment.
Affidavit Requirement: Accompanying the motion, an affidavit must be submitted. This document should explain why the party did not receive notice in time to defend themselves. It is essential to demonstrate that the lack of notice was not due to avoidance or neglect.
Meritorious Defense: The party must show that they have a valid defense to the underlying case. This means presenting evidence that supports their position and indicates that the judgment may not be justified.
Seeking Court Assistance: The motion is an opportunity to have the court review the case and decide on the issues fairly. It is important to express a willingness to resolve the matter with the court's help, emphasizing a desire for a just outcome.