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Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment

by Stan Burman

A Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is the topic of this blog post.

A Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is filed using the grounds of lack of actual notice in time to defend the action.

Advantage of filing a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment.

The time limit for filing a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment is substantially longer than the six months allowed by section 473.

California Code of Civil Procedure § 473.5 states in pertinent part that: "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.  The notice 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.", and "Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action."

Family Code § 210 states that, “Except to the extent that any other statute or rules adopted by the Judicial Council provide applicable rules, the rules of practice and procedure applicable to civil actions generally, including the provisions of Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice and procedure in, proceedings under this code.”

There are many reasons that someone may not have received actual notice of a lawsuit, including the fact that substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint, etc.

The statutory provisions for substituted service must be strictly complied with, and the statutory conditions upon which such service depends will be strictly construed. This means that if substituted service has been used and the procedures were not strictly followed, then the Court will be much more likely to grant the motion to vacate.

And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective.

A plaintiff has to first attempt to personally serve a defendant with the summons and complaint before attempting substituted service or any other form of what is called "constructive service" including service by publication.

Requirements in order to win a Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment.

In order to qualify for relief from default and/or judgment under Section 473.5 the moving party must show that they:  (1) timely moved the Court for relief from default and/or judgment,  (2) did not receive actual notice of the lawsuit in time to defend the action,  (3) make a sufficient showing that their lack of actual notice was not due to avoidance of service or inexcusable neglect. Although not required they should provide a copy of their proposed pleading along with their motion as the proposed pleading should be on file with the Court before the hearing on the motion.

Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default.  The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.

Sample Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment for sale.

Attorneys or parties in California who would like to view a portion of a 9 page sample Code of Civil Procedure section 473.5 motion to vacate a California divorce judgment can see below a sample motion complete with a memorandum of points and authorities with full citations to case law and statutory authority and a sample declaration that is sold by the author.

Sample Motion to Vacate California Divorce Judgment Under CCP Section 473.5 by Stan Burman on Scribd

Over 300 sample legal documents for California and Federal litigation for sale.

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The author of this blog post, Stan Burman, is a retired litigation paralegal that worked in California and Federal litigation from January 1995 through September 2017 and has created over 300 sample legal documents for sale.

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DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
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