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Relief from Defaults

July 1, 2010

By Barbara Haubrich-Hass, ACP/CAS

Background:

California civil litigation begins when the plaintiff files a Summons and Complaint with the Superior Court that has jurisdiction over the matter. The filing of the Complaint starts the time ticking for a number of cut-offs, one of which is service of the Complaint. The Complaint must be served on all named defendants and proofs of service filed with the court within 60 days after filing of the Complaint. [CRC Rule 3.110(b)]

The time for a defendant to respond to a Complaint is 30-days from the date that service of the Complaint is deemed complete. The parties may stipulate without leave of court to one 15-day extension beyond the 30-day time period. [CRC Rule 3.110(d)] The date the service is deemed complete is dependent upon the manner of service. If the service is made by personal service, the service is deemed complete on the day of service. [CCP § 415.10] If service is made by substitute service, the service is deemed complete on the 10th day after copies of the served documents are mailed to the defendant. [CCP § 415.20(a)] If service is made by mail with acknowledgment of receipt, the service is deemed complete on the date the defendant, or the defendant’s retained attorney, signs the acknowledgment. [CCP § 415.30(c)]

If a defendant fails to serve a responsive pleading within the time limits, and no extension of time has been granted, the plaintiff must file a Request for Entry of Default within 10-days after the time for service has elapsed. The court may issue an Order to Show Cause why sanctions should not be imposed if the plaintiff fails to timely file the Request for Entry of Default. [CRC Rule 3.110(g)]

Defendants are in default if they fail to file a timely responsive pleading to the plaintiff’s Complaint. There are three types of defaults:

1) An Entry of Default is a means for a plaintiff to cut off a defendant’s right to appear in a lawsuit. The defendant is considered out of court. An entry of default does not enter a money judgment against a defendant. It simply stops a defendant from appearing to the Complaint. By itself, being in default has no legal consequences because the defendant can still appear in the action up to the entry of default.

2) Clerk’s Entry of Default Judgment, and

3) Court’s Entry of Default Judgment. In certain types of cases, such as a collection case that requests a fixed sum, the court clerk is allowed to enter a default judgment without a court hearing. In most civil cases, however, the plaintiff is required to prove up the relief sought in the Complaint at a court hearing to obtain a judgment. A default judgment (either by way of the clerk or court) actually awards the relief sought in the plaintiff’s Complaint and enters a judgment against a defendant.

Once a default is entered, the defendant has no right to participate in a lawsuit until the default has been set aside. The only motion that a defendant can file is a motion to be relieved from default under CCP § 473. The court has no authority to consider any other pleading or motion. The trial court has broad discretion to set aside the entry of a default or default judgment. The court can only utilize that discretion, however, if the defendant establishes the proper ground for relief, follows the appropriate procedure, and files the motion within the mandatory time limits. The defendant bears the burden to prove the relief from a default.

Grounds for Relief:

“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, inadvertence, surprise, or excusable neglect.” [CCP § 473(b)]

Mistake: Relief may be granted on a showing of mistake by a party or attorney. The mistake must be material, and may be one of fact or law. A mistake based on fact is when a defendant, or the attorney, was mistaken about a fact that is material to the defendant’s duty to respond resulting in the failure to timely respond to the Complaint. An attorney’s mistake of law is not grounds for relief when the mistake is because of professional incompetence, general ignorance of the law, or unjustifiable negligence in discovering the law. If the legal issue is complex and debatable, an honest mistake of law is a valid ground for relief, even absent the attorney affidavit of fault.

Inadvertence: The lack of attentiveness, inattention, or fault from negligence is the basis of inadvertence. Inadvertence, however, does not support relief unless, combined with all of the evidence, the inadvertence is excusable. Inadvertence is often combined with excusable neglect.

Surprise: This term refers to an unexpected condition or situation that a party is placed in without any negligence of his own that an ordinary prudent person could not have guarded against.

Excusable Neglect: This is the most common ground for obtaining relief from a default. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the same circumstances. Forgetting about the lawsuit, being too busy, or being unable to afford an attorney are not grounds for excusable neglect. Some examples of excusable neglect include:

Evidence that the defendant was too ill or unable to understand that he or she was being served with legal documents;
Evidence that a defendant misplaced or lost the papers, and as result failed to contact an attorney;
A reasonable reliance on a co-defendant or other interested party to file a response. For example, a defendant’s reliance on the liability insurer to defend an action.

A Void Judgment [CCP § 473(d)]: The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be voided if the court lacked subject matter jurisdiction over the action, personal jurisdiction over the defendant, or if the judgment was procured by fraud on the court. One common way default judgments are considered void is if the judgment was obtained after improper or fraudulent service.

Service Too Late to Defend Action [CCP § 473.5]: If service of the summons did not result in actual notice to a party in time to defend the action and a default has been entered, the defendant may file a Motion to Set Aside the default. Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.

Action in Improper Court [CCP § 585.5]: When a default or default judgment has been entered when an action has been filed in an improper court, a defendant can file a Motion to Set Aside the Default and request leave to defend the action.

Time Limits:

There are different time limitations based upon the grounds for the relief sought.

Within 6 months after entry of default: A motion for discretionary relief from default under CCP § 473(b) on grounds of “mistake, inadvertence, surprise or excusable neglect.” The motion for discretionary relief must be filed within 6 months after the clerk's entry of default.

Within 6 months after entry of judgment: A motion for mandatory relief from default based upon an attorney’s affidavit of fault is timely if filed within 6 months after entry of judgment.

Summons Too Late to Defend Action: A Motion to Set Aside Default under CCP § 473.5 where the service of a summons has not resulted in actual notice to a party in time to defend the action, the time to file and serve a Motion shall be made “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.”

Void Judgment: The time to file a Motion to Set Aside Default under CCP § 473(d) is at any time after a void judgment is granted, if the motion is made within a reasonable time. For a default judgment, this may be a reasonable time after the discovery of the existence of the judgment or order.

Improper Court: A Motion to Set Aside Default under CCP § 585.5(b) shall be served and filed within 60 days after the defendant first receives notice of levy under a writ of execution, or notice of any other procedure for enforcing the default judgment.

Procedure to File Motion:

The format for a Motion to Set Aside Default is the same as the motion papers described in CRC Rule 3.1110.

The documents that need to be filed for a Motion to Set Aside Default, other than relief based on void judgments, under CCP § 473(d) are:

Notice of Motion and Motion to Set Aside Default and Default Judgment;
Memorandum of Points and Authorities;
Supporting Declarations or Affidavits that support the moving party's mistake, inadvertence, surprise, or excusable neglect; and,
Proposed responsive pleading (Answer or Demurrer) to the Complaint to illustrate to the court that you have a meritorious defense to the original case.

The documents that need to be filed for a Motion to Set Aside Default from a Void Judgment under CCP § 473(d) are:

Notice of Motion and Motion to Set Aside Void Default and Default Judgment;
Memorandum of Points and Authorities;
Supporting Declarations or Affidavits that support the evidence that the judgment or order is invalid; and,
Proposed responsive pleading (Answer or Demurrer) to the Complaint to illustrate to the court that you have a meritorious defense to the original case.

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