California Motion to Vacate Judgment

Introduction

Key Things to Know

1. 1

   California's main route is relief from judgment under CCP 473(b). The court may relieve a party from a judgment, dismissal, order or other proceeding taken through the party's mistake, inadvertence, surprise or excusable neglect. Relief is up to the court, so show the facts behind the ground you rely on.

2. 2

   The 473(b) deadline is short. The motion must be made within a reasonable time, in no case exceeding six months after the judgment or order was taken. If the judgment determines ownership or right to possession of property, and written notice is personally served in California on the party and the party's attorney of record, the motion must be made within 90 days after the later service, without extending the six-month period.

3. 3

   Attach the proposed pleading. Under CCP 473(b), the application must be accompanied by a copy of the answer or other pleading proposed to be filed, or the application shall not be granted. No affidavit or declaration of merits is required.

4. 4

   Attorney fault has its own route for a default, default judgment or dismissal. The application must be made no more than six months after entry of judgment, be in proper form, and be accompanied by the attorney's sworn affidavit attesting to the attorney's mistake, inadvertence, surprise or neglect. It does not apply if the court finds the default or dismissal was not in fact caused by the attorney.

5. 5

   A void judgment or order is a separate ground. CCP 473(d) lets the court, on motion of either party after notice to the other party, set aside any void judgment or order. It also lets the court correct clerical mistakes in its judgment or orders as entered. Move promptly once you learn of the judgment and ask a California lawyer about timing.

6. 6

   Filing the motion does not by itself stop enforcement of the judgment. Subject to subdivision (b), CCP 918 lets the trial court stay enforcement of any judgment or order, whether or not an appeal will be taken, so ask the court for a stay separately if you need one.

7. 7

   Small claims uses its own track. Under CCP 116.730, a defendant who did not appear may move to vacate within 30 days after the clerk mailed notice of entry of judgment, and the court may grant it on a showing of good cause. The court's self-help page says to fill out form SC-135 and lists a $20 filing fee. For a default judgment in a regular civil case, see the set-aside-default page at /legal-document/set-aside-default/california.

California Requirements for Motion to Vacate

• Six-Month Limit Under 473(b)

  CCP 473(b): the motion must be made within a reasonable time, in no case exceeding six months after the judgment or order was taken; for an ownership or possession judgment, 90 days after written notice is personally served, without extending six months.

• Grounds for Relief

  CCP 473(b): mistake, inadvertence, surprise or excusable neglect. CCP 473(d): void judgment or order; the court may also correct clerical mistakes in its judgment or orders as entered. CCP 663: incorrect or erroneous legal basis for the decision, not consistent with or not supported by the facts, or judgment not consistent with or not supported by the special verdict, in each case materially affecting the substantial rights of the party and entitling the party to a different judgment.

• Proposed Pleading Attached

  CCP 473(b): the application must be accompanied by a copy of the answer or other pleading proposed to be filed, or it shall not be granted. No affidavit or declaration of merits is required.

• Attorney Fault Affidavit

  CCP 473(b): for a default, default judgment or dismissal, apply no more than six months after entry, in proper form, with the attorney's sworn affidavit of fault; not available if the court finds the attorney did not in fact cause it.

• CCP 663a Timing

  Notice of intention within 15 days of the clerk's mailing or a party's service of notice of entry, or 180 days after entry, whichever is earliest. The court's power to rule expires 75 days after that notice.

• Stay of Enforcement

  CCP 918: subject to subdivision (b), the trial court may stay enforcement of any judgment or order, whether or not an appeal will be taken. Filing the motion does not by itself stop enforcement.

• Small Claims Track

  CCP 116.730: a defendant who did not appear may move to vacate within 30 days after the clerk mailed notice of entry of judgment, on a showing of good cause. The self-help page names form SC-135 and a $20 filing fee.

• Grounds Stated as Alternatives

  State each ground relied on as a labelled alternative citing its subsection, with the timeliness facts for that ground and the dates of entry and notice of entry.