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Vacating a judgment in California under Code of Civil Procedure section 473

by Stan Burman

Vacating a judgment in California under Code of Civil Procedure section 473 is the topic of this blog post. 

Vacating a judgment in California Code of Civil Procedure section 473 can be requested on the grounds of mistake, inadvertance, surprise or excusable neglect.

Code of Civil Procedure section 473 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."

Note that there are many reasons that someone may not have filed an answer to a complaint in time. For example a person may have been properly served with the summons and complaint, but may have mislaid the paperwork or had a family emergency.

In order to qualify for relief from default and/or judgment under section 473 the moving party must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect. They should also provide a copy of their proposed pleading along with their motion, or submit as soon as possible before the hearing. 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.

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.

The main issue that someone in default must understand is that they must move promptly to have any default and/or judgment entered against them vacated. The sooner they file their motion the better as section 473 requires the motion, "shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken." So instead of thinking that they have six months and can afford to take their time, they need to think that the most time they are allowed is six months and the sooner their motion to vacate is filed the better.

Attorneys or parties in California who would like to view a portion of a sample motion to vacate default judgment under section 473 complete with a memorandum of points and authorities with citations to case and statutory authority and a sample declaration that is sold by the author can use the link shown below.

Sample Motion to Vacate Judgment Under CCP Section 473 for California by Stan Burman on Scribd

 


Attorneys or parties in California who would like more information on a law and motion document collection containing over 70 sample documents including a sample motion to vacate a default judgment under section 473 sold by the author can use the link shown below.

https://legaldocspro.myshopify.com/collections/frontpage/products/california-law-and-motion-document-collection

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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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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