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Vacating a judgment in California under Code of Civil Procedure section 473.5

by Stan Burman

Vacating a judgment in California under Code of Civil Procedure section 473.5 is the topic of this blog post.

Vacating a judgment in California under Code of Civil Procedure section 473.5 can be requested on the grounds of lack of actual notice as the service of the summons and complaint did not result in actual notice to defendant in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect.

Used in the right situations a motion under section 473.5 is very useful as the time limit for filing a motion under section 473.5 is substantially longer than the six months allowed by section 473. 

Some attorneys and other legal professionals are not aware of section 473.5 and are under the impression that after six months there is not much that can be done to vacate a default judgment.  That is not always true, particularly if the defendant was not personally served.

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."

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 as even service made at a close relative’s house can be ineffective.

Substituted service to estranged wife's parents' address in action against husband and wife for breach of restaurant equipment lease was ineffective despite parents' address appearing on her driver's license where wife had established separate legal household. .

The California Supreme Court ruled in a case from over 100 years ago that when substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required.

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.

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, (4)  and provide a copy of their proposed pleading along with their motion or file the proposed pleading a reasonable amount of time before the hearing date.  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.

The California Supreme Court has ruled in numerous published cases 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 ruled 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, and that any doubts must be resolved in favor of the party seeking relief from default.

And a California Court of Appeal stated that, “Thus, section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside.”

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a default judgment under section 473.5 that is sold by the author can use the link shown below.

Sample Motion to Vacate Judgment Under CCP Section 473.5 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 473.5 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.

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing. Just visit freeweeklylegalnewsletter.gr8.com/ for more information.  

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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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