Opposing a section 473 motion to vacate a judgment in California is the topic of this blog post.
A section 473 motion to vacate a judgment in California is filed under Code of Civil Procedure section 473(b) on the grounds of mistake, inadvertance, surprise or excusable neglect. If you have been served with a motion to vacate a judgment under section 473 in California you need to carefully review the motion to determine the grounds for opposition.
You also need to make sure that your opposition is served and filed in a timely manner as the opposition must be filed at least nine (9) court days before the hearing and should be served by personal delivery or overnight mail under the provisions of Code of Civil Procedure section 1005.
California Code of Civil Procedure § 473(b) states in pertinent part that: "The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." (Emphasis added.) I want to stress that the six month time limit starts from the date that the default is entered, NOT the date of entry of any default judgment.
As I have just shown even the specific code section and subdivision that allows someone to file a motion to vacate a default judgment states that the motion must be made within a reasonable time, in no case exceeding six months. Many people are under the mistaken impression that as long as the motion to vacate is filed within six months of the default it is a sure thing. That is NOT the case.
In order to qualify for relief from default and/or judgment under Section 473(b) the moving party must show that they: (1) timely moved the Court for relief from default, including providing a satisfactory explanation for the delay, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading to the Court although some Courts have ruled that so long as that is filed before the hearing that is substantial compliance.
Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.
California law has been well settled for over 60 years that delays of 3 months or more after discovery of the default routinely result in denial of relief under Section 473(b), unless there is a satisfactory explanation for the delay. Several published decisions of both the California Supreme Court and the California Courts of Appeal have stated this fact.
If the moving party has not provided a satisfactory explanation for the delay, the mistake, inadvertance, surprise or excusable neglect that caused entry of the default or judgment will not be considered. Therefore it is extremely important that you carefully review any supporting declarations including attached exhibit to determine whether or not a satisfactory explanation for the delay has been provided.
Another factor to consider is the fact that if relief from default is based on evidence other than an "attorney affidavit of fault," the court may in its discretion order the defendant, as a condition of granting the motion, to pay the costs, including attorney fees, incurred by the plaintiff in obtaining the default judgment. At least two California Courts of Appeal in published decisions, including a recent case from 2010, have dealt with this issue and reached the same conclusion. A Court is particularly likely to make that order if the defendant’s case is weak such as someone who has obviously not stated any satisfactory explanation for the delay, and whose mistake or neglect is weak.
A California Court of Appeal stated in a published decision from over 50 years ago that nonmonetary conditions may be imposed in appropriate situations, such as an inspection of books or a restraint on any transfer of defendant's property.
Attorneys or parties in California who would like to view a sample opposition to a motion to vacate a default judgment in California that is sold by the author can use the link shown below.
Attorneys or parties in California that would like more information on a California law and motion litigation document package containing over 70 sample documents including a sample opposition to a motion to vacate a default judgment can use the link shown below.
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for sale.
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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.