An opposition to motion to vacate judgment for lack of actual notice in California is the topic of this blog post. The opposition to the motion to vacate judgment under Code of Civil Procedure section 473.5 should be filed with the court at least nine (9) court days before the hearing and served by personal service or overnight mail pursuant to Code of Civil Procedure section 1005.
If you have been served with a motion to vacate judgment under Code of Civil Procedure section 473.5 you should carefully review the motion and supporting declarations and exhibits to determine what grounds for opposition exist.
Common grounds for opposing a motion to vacate judgment filed under Code of Civil Procedure section 473.5 include that the moving party has not shown a satisfactory explanation for the delay between their discovery of the default and judgment, and that any alleged lack of actual notice was caused by inexcusable neglect and avoidance of service.
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.”
Published decisions from several California Courts of Appeal have ruled that the moving party must show that their lack of actual notice in time to defend the action was not caused by either inexcusable neglect or avoidance of service.
Another published decision from a California Court of Appeal ruled that the motion to vacate must be supported by an affidavit or declaration containing admissible and competent evidence and that hearsay evidence is not sufficient.
Even if the motion to vacate judgment is granted the court still has the power to order that as a condition of the default and judgment being vacated that the defendant pay reasonable costs including attorney fees incurred by the plaintiff in obtaining the default judgment pursuant to subdivision (c) of section 473.5 which states that relief may be granted “on such terms as may be just.”
Attorneys or parties in California that would like to view a portion of a 10 page sample opposition to a motion to vacate under Code of Civil Procedure section 473.5 containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority and sample declaration sold by the author can see below.
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The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995.
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The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
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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.