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California Motion to Set Aside a Default Judgment

Set aside a California default judgment under Code of Civil Procedure 473. File within six months for mistake or excusable neglect, or anytime if the judgment is void.

Introduction

A motion to set aside a default judgment asks the court to undo a judgment entered against you because you did not respond to the lawsuit in time, so you can defend the case on the merits. In California the main path is Code of Civil Procedure section 473(b), which lets the court relieve you from a default judgment taken through your mistake, inadvertence, surprise, or excusable neglect. You must file the application within a reasonable time, and in no case more than six months after the judgment, and you must attach a copy of the answer or other pleading you propose to file, or the court will not grant relief. California adds a powerful tool most states do not have: mandatory relief. If your application is made no more than six months after entry of judgment and is accompanied by your attorney's sworn affidavit admitting the mistake, inadvertence, surprise, or neglect was theirs, the court must set aside the default judgment, even if the neglect was not excusable. A separate path exists when the judgment is void, most often because you were never properly served. Under section 473(d) the court may set aside a void judgment, and section 473.5 gives relief when service did not give you actual notice in time to defend. Missing the six-month window can leave the default judgment in place, so act quickly. DocDraft drafts a California motion to set aside a default judgment from your facts, with attorney review available before you file.

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Key Things to Know

  1. 1

    A default judgment is the judgment entered when a defendant does not respond in time. In California you undo it with a motion to set aside under Code of Civil Procedure section 473, which reopens the case so it can be decided on the merits.

  2. 2

    The main ground is section 473(b): relief from a default judgment taken through your mistake, inadvertence, surprise, or excusable neglect. You must also attach the answer or pleading you propose to file, or the court will not grant the motion.

  3. 3

    The deadline is strict. Under section 473(b) the application must be made within a reasonable time and in no case more than six months after the judgment. The six months is an outer limit, not a grace period, so file as soon as you can.

  4. 4

    California offers mandatory attorney-fault relief. If the motion is filed within six months of entry and includes your attorney's sworn affidavit admitting the fault was theirs, the court must vacate the default judgment, even if the neglect was inexcusable.

  5. 5

    If you were never properly served, the judgment may be void. Section 473(d) lets the court set aside a void judgment, and section 473.5 provides relief when the service did not give you actual notice in time to defend, on its own timeline.

  6. 6

    Most section 473(b) motions require a meritorious defense shown through the proposed answer. The court wants to see the real defense you would raise if the case is reopened, which is why the proposed pleading must accompany the motion.

  7. 7

    You file the motion in the Superior Court of California for the county where the case is pending, with a notice of hearing and a supporting declaration. Many counties mandate e-filing by local rule, so check your court's local rules.

Key decisions before you file

Before you file a Motion to Set Aside a Default Judgment in California, a few decisions shape the document: which option to choose and what each one means. The Motion to Set Aside a Default Judgment guide walks through them.

Open the Motion to Set Aside a Default Judgment guide

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SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF [COUNTY]

[PLAINTIFF NAME], Plaintiff,

 vs.

[DEFENDANT NAME], Defendant.

Case No.: [CASE NUMBER]

NOTICE OF MOTION AND MOTION TO SET ASIDE DEFAULT JUDGMENT; DECLARATION IN SUPPORT

[Code Civ. Proc. § 473(b)]

Hearing Date: [DATE] Hearing Time: [TIME] Dept.: [DEPARTMENT]

TO THE PLAINTIFF AND TO THE CLERK OF THE ABOVE-ENTITLED COURT:

PLEASE TAKE NOTICE that on the date and time above, or as soon thereafter as the matter may be heard, Defendant [DEFENDANT NAME] will move this Court for an order setting aside the default judgment entered on [DATE OF JUDGMENT] and permitting Defendant to file the proposed Answer submitted with this motion.

MOTION

Defendant moves under Code of Civil Procedure section 473(b) on the following grounds:

  1. The default judgment was entered on [DATE] because [describe the mistake, inadvertence, surprise, or excusable neglect that caused the failure to respond].

  2. This motion is made within a reasonable time and no more than six months after the judgment, as required by section 473(b).

  3. [If applicable: This motion is accompanied by the sworn affidavit of Defendant's attorney attesting that the failure to respond was due to the attorney's mistake, inadvertence, surprise, or neglect, and mandatory relief is therefore required under section 473(b).]

  4. [If applicable: The judgment is void because Defendant was never properly served, and the Court may set it aside under Code of Civil Procedure section 473(d) or grant relief under section 473.5.]

  5. A copy of the Answer that Defendant proposes to file is submitted with this motion, as section 473(b) requires. Defendant has a meritorious defense: [state the defense, for example the debt was paid, the amount is wrong, or Defendant is not the correct party].

DECLARATION

I, [DECLARANT NAME], declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [State the facts of the mistake, inadvertence, surprise, or excusable neglect, and the date you learned of the judgment.]

Executed on [DATE] at [CITY], California.

[DECLARANT NAME]

PRAYER FOR RELIEF

WHEREFORE, Defendant respectfully requests that the Court set aside the default judgment entered on [DATE], permit Defendant to file the attached Answer, and grant such other relief as the Court deems just.

Dated: [DATE]

[ATTORNEY OR SELF-REPRESENTED PARTY NAME] [Address] [Telephone] Attorney for Defendant / Defendant in Pro Per

PROOF OF SERVICE

I declare that I served the foregoing motion, declaration, and proposed Answer on the parties listed below by [method of service] on [DATE], in accordance with California law.

[NAME OF PERSON SERVING]

[This skeleton is filed on 28-line numbered pleading paper per California Rules of Court, rule 2.111. Check your court's local rules for e-filing and formatting requirements.]

California Requirements for Motion to Set Aside a Default Judgment

File within six months of the judgment

Under Code of Civil Procedure section 473(b) the application to set aside must be made within a reasonable time and in no case more than six months after the default judgment. The six months is an outer limit; file as soon as you can.

Attach the proposed answer

Section 473(b) requires the application to be accompanied by a copy of the answer or other pleading you propose to file, otherwise the court will not grant relief. The proposed answer shows the meritorious defense you would raise.

State the ground: mistake, inadvertence, surprise, or excusable neglect

Identify which section 473(b) ground applies and explain the facts. The court weighs whether the neglect that caused the default was excusable under the circumstances.

Consider mandatory attorney-fault relief

If an attorney's mistake, inadvertence, surprise, or neglect caused the default, section 473(b) requires the court to vacate the judgment when the motion is filed within six months of entry and includes the attorney's sworn affidavit of fault, even if the neglect was inexcusable.

Check whether the judgment is void

If you were never properly served, the judgment may be void. Code of Civil Procedure section 473(d) lets the court set aside a void judgment, and section 473.5 provides relief when service did not give actual notice in time to defend.

Prepare a supporting declaration

Support the motion with a declaration under penalty of perjury stating the facts of the mistake or excusable neglect and when you learned of the judgment. Include a notice of hearing set under Code of Civil Procedure section 1005.

Use California numbered pleading paper

California pleadings are filed on 28-line numbered pleading paper under California Rules of Court rule 2.111. Include the case caption exactly as it appears in the court record.

File in the Superior Court and complete proof of service

File in the Superior Court of California for the county where the case is pending, serve the motion and proposed answer on the plaintiff, and file a proof of service. Many counties mandate e-filing by local rule; check your court's local rules.

Frequently Asked Questions

It is a request asking a California Superior Court to undo a default judgment, which is the judgment entered against a defendant who did not respond to the lawsuit in time. Setting it aside reopens the case so you can defend it. The main basis is Code of Civil Procedure section 473(b), which requires you to show mistake, inadvertence, surprise, or excusable neglect and to attach the answer you propose to file.

An entry of default is the clerk's record that you did not respond on time; a default judgment is the later judgment that actually decides the case against you. Setting aside a default before judgment is generally easier. Once a default judgment is entered, you must use Code of Civil Procedure section 473, file within six months, and show mistake or excusable neglect plus a proposed answer, unless the judgment is void for improper service.

Under Code of Civil Procedure section 473(b) you must file within a reasonable time and in no case more than six months after the judgment. The mandatory attorney-fault relief also runs from entry of judgment, capped at six months. If the judgment is void because you were never properly served, section 473(d) relief is not limited to six months and can be sought later.

It is a provision in Code of Civil Procedure section 473(b) that requires the court to set aside a default judgment when the motion is filed within six months of entry and includes the attorney's sworn affidavit admitting the mistake, inadvertence, surprise, or neglect was theirs. Unlike ordinary relief, the court must grant it even if the neglect was not excusable, and it does not apply when the party represented themselves.

Often yes. If you were never properly served, the court may have lacked jurisdiction and the judgment may be void. Code of Civil Procedure section 473(d) lets the court set aside a void judgment, and section 473.5 provides relief when the service did not give you actual notice in time to defend. These paths are not limited to the six-month window that applies to excusable-neglect motions.

Yes, for a section 473(b) motion. The statute says the application must be accompanied by a copy of the answer or other pleading you propose to file, otherwise the court will not grant it. This lets the judge see the meritorious defense you would raise if the case is reopened. The proposed answer is filed together with the notice of motion and your supporting declaration.

You file it in the Superior Court of California for the county where the action is pending, with the clerk of the court named in the case caption. The motion includes a notice of hearing, the motion itself, and a supporting declaration, and the proposed answer. Many counties require e-filing under local rule, so check your court's local rules for the filing method.