Vacating a void order in California is the topic of this blog post.
Vacating a void order in California is generally requested on the grounds that that the order is void on its face as the moving party was never served with any notice of hearing of the motion that was filed. The lack of prior notice of any hearing constitutes a lack of due process.
Law that authorizes vacating a void order in California.
Vacating a void order in California is authorized pursuant to Code of Civil Procedure Section 473(d) on the grounds that the order is void for lack of notice.
Code of Civil Procedure section 473(d) states that, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Vacating a void order in California can also be requested under the inherent equitable power of the court on the grounds that said order is void for lack of due process.
If you become aware of an order that was entered against you and you were never served with any notice of motion or motion you should consider filing a motion to vacate the order as it is void.
In one marital dissolution case where the moving party was never served with any notice a California Court of Appeal stated in a published decision that a failure to serve a party with a notice of a motion before the hearing has the same effect as failing to serve a summons and complaint and results in the order being void on its face and subject to collateral attack at any time.
Another California Court of Appeal stated in a published case that the courts have the inherent power to vacate an order on equitable grounds when the moving party can prove that the order was void for lack of due process.
The U.S. Supreme Court has stated that the essence of a party’s right to due process includes the right to be notified of any hearing on a matter adverse to his or her interest.
If you become aware that an order was entered against you when you were never served with any notice of motion or motion you should consider filing a motion to vacate the void order as soon as possible.
Sample motion for vacating a void order in California for sale.
Attorneys or parties in California that would like to view a portion of a sample motion to vacate a void order in California containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail sold by the author 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.