Default Judgments

A default judgment is obtained by the plaintiff when the defendant does not file a response to the Summons and Complaint, or does not appear at the hearing. Defaults may be set aside or vacated by the court at the request of the defendant. California law provides specific grounds on which a defendant may base a motion for relief from a default or default judgment. The defendant bears the burden of proving to the court that he or she is entitled to relief from default. The moving party also must show that they have a meritorious defense to the original case.

Grounds for relief

Time for filing

Procedure for relief from default

Forms

How to Take a Default Judgment in California State Court

  1. Count 30 Days from The Date of Service of Process
    Begin counting days the day after service is made. Count Saturdays and Sundays. If the 30th day falls on a weekend or holiday, the defendant has until the next court day.
  2. Take The Defendant's Default
    Do this step by filling out and filing multiple forms with the court clerk, including: CIV-100 (Request for Entry of Default) JUD-100 (Judgment) MC-030 (Declaration) MC-031 (Declaration cont) Any and all written evidence or exhibits
  3. Prove-Up The Default at The Hearing
    The clerk may set a hearing date to "prove-up" the default. Some courts take live testimony, others take testimony in the form of written declarations. The default clerk should know the answer for the particular judge. Be prepared to show and testify to why you are owed money.
  4. Collect Your Judgment
    This process requires a whole other guide. Congratulations if you won by default, now your next challenge will be collecting that judgment.

GROUNDS FOR RELIEF

California Code of Civil Procedure sections 473(b), 476(d) and 473.5 specify the grounds on which you can base a motion for relief of default or default judgment. Permitted grounds include:

Mistake (CCP 473(b)):

A mistake of fact occurs 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 default.

Inadvertence (CCP 473(b)):

Inadvertence stems from 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.

Surprise (CCP 473(b)):

Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

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 properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:

  • Illness that disables the party from responding or appearing in court
  • Failure to respond because you relied on your attorney to do so
  • Failure to appear at trial because you relied on misinformation provided by a court officer

Party 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 knows of the litigation. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.

Void judgments (CCP 473(d)):

The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action, 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 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. There are many other ways in which a default judgment may be void. For more information, see:

  • California Forms of Pleading and Practice
    Vol. 43, ? 489.132 et seq. KFC 1010 .A65 Electronic Access: On the law library computers, using the LexisNexisCD.

TIME FOR FILING

Different time limitations apply depending on the ground(s) you will be claiming. Motions must be filed:

  • Within 6 months after entry of default on grounds of mistake, inadvertence, surprise or excusable neglect
  • Within 2 years of the default judgment if service did not result in actual notice in time to defend
  • Within 180 days if you are served notice of the entry of default judgment, but had no actual notice in time to defend the original case
  • At any time after a void judgment is granted, if the motion is made within a reasonable time. For a default judgment, this may be a reasonable time after the discovery of the existence of the judgment or order.

PROCEDURE FOR RELIEF FROM DEFAULT (other than relief based on Void Judgments under (CCP 473(d))

  • Prepare a Notice of Motion to Set Aside Default and Default Judgment
  • Prepare a Supporting Declaration or Affidavit that states facts showing that the default and default judgment were the result of the moving party's mistake, inadvertence, surprise, or excusable neglect
  • Prepare a Memorandum of Points and Authorities
  • Prepare a proposed responsive pleading (e.g., Answer or Demurrer) to the original Summons and Complaint, to show the court that you have a meritorious defense to the original case
  • File and serve your Notice of Motion and other support papers, as well as your proposed responsive pleading.

PROCEDURE FOR RELIEF FROM VOID JUDGMENT UNDER CCP 473(d),

  • Prepare a Notice of Motion and Motion to Set Aside Void Default and Default Judgment
  • Prepare Supporting Declarations or Affidavits that provide evidence that the judgment or order is invalid.
  • Prepare a Memorandum of Points and Authorities
  • File and serve your Notice of Motion and other support papers on all other parties.

Forms

The forms must be typed on pleading paper, which has numbers down the left side. Pleading paper is available at the Reference Desk, or can be automatically generated using Microsoft Word (instructions are available here). See California Rules of Court, Rule 2.100-2.119, for the required format for your papers.

The resources listed below provide examples of the documents you will need to prepare. There are different examples for each of the grounds discussed above. You will need to select the sample(s) that fit your situation.

Samples of a "Notice of Motion to Set Aside Default and Default Judgment" and "Supporting Affidavits or Declarations" are available from these resources:

  • California Civil Procedure Before Trial
    Vol. 2, Chap. 38. KFC 995 .C34 Electronic Access: On the law library computers, using OnLaw.
  • California Civil Practice: Procedure
    Vol. 4, Chap. 29. KFC995 .A65 Electronic Access: On the law library computers, using Westlaw.
  • California Forms of Pleading and Practice
    Vol. 43, Chap. 489. KFC 1010 .A65 C3 Electronic Access: On the law library computers, using the LexisNexisCD.
  • California Pretrial Civil Procedure
    Vol. 3, Chap. 36. KFC995 .M38 Electronic Access: On the law library computers, using the LexisNexisCD.

For samples of a "Memorandum of Points and Authorities", see:

  • California Points and Authorities
    Vol. 7, Chap. 70. KFC 1010 .B4 Electronic Access: On the law library computers, using the LexisNexisCD.

The type of responsive pleading you file will depend on how you wish to handle the original case against you. Basic overviews of the different types of responsive pleadings are available:

On-line at http://www.scselfservice.org/civ/general/defendant.htm

  • Win Your Lawsuit
    Chap. 8. KFC 968 .Z9 D86 Electronic Access: On the law library computers, using NetLibrary.

In-depth discussions of the options and samples of the forms are available from these resources:

  • California Civil Procedure Before Trial
    KFC 995 .C34 Electronic Access: On the law library computers, using OnLaw.
  • California Civil Practice: Procedure
    KFC 995 .A65 Electronic Access: On the law library computers, using Westlaw.
  • California Pretrial Civil Procedure
    KFC 995 .M38 Electronic Access: On the law library computers, using the LexisNexisCD.
  • California Practice Guide: Civil Procedure Before Trial
    KFC 995 .W95 Electronic Access: On the law library computers, using Westlaw.
  • Litigation by the Numbers
    KFC 995 .G67
  • California Forms of Pleading and Practice
    KFC 1010 .A65 Electronic Access: On the law library computers, using the LexisNexisCD.
  • Win Your Lawsuit
    KFC968 .Z9 D86 Electronic Access: On the law library computers, using NetLibrary.

For more details of the law and procedure, see:

  • California Civil Procedure Before Trial
    Vol. 2, Chap. 38. KFC 995 .C34 Electronic Access: On the law library computers, using OnLaw.
  • California Practice Guide: Civil Procedure Before Trial
    Vol. 1 Chap. 5. KFC 995 .W4 Electronic Access: On the law library computers, using Westlaw.
  • California Forms of Pleading and Practice
    Vol. 43, Chap. 489. KFC 1010 .A65 C3 Electronic Access: On the law library computers, using the LexisNexisCD.
  • California Civil Practice: Procedure
    Vol. 4, Chap. 29. KFC 995 .A65
  • California Pretrial Civil Procedure
    Vol. 3, Chap. 36. KFC 995 .M38 Electronic Access: On the law library computers, using the LexisNexisCD.

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