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How Do I Set Aside A Default Judgment Taken Against Me In My Family Law Case?

Posted by Jaime Kissinger | Nov 06, 2018 | 0 Comments

After a judgment has been entered in a divorce or legal separation proceeding, both statutory law and principles of equity provide various procedures for attacking the judgment at the trial court level. One such procedure is to file a motion under Code of Civil Procedure § 473(b) seeking relief from a default, judgment, dismissal, order, or other proceeding taken against you entered as a result of you or your attorney's mistake, inadvertence, surprise, or excusable neglect. 

If you are seeking relief based on your mistake, inadvertence, surprise, or excusable neglect, the court has discretion to grant you relief. However, if you are seeking relief from a default and/or default judgment on the basis of your attorney's mistake, inadvertence, surprise, or neglect, the court must grant you relief if the default was actually caused by your attorney.

In what types of proceedings can Code of Civil Procedure § 473(b) relief be requested?

Typically, you would seek relief under this statute from an entry of default and/or default judgment. However, you can also seek relief under this statute from a stipulated judgment (Marriage of Jacobs (1982) 128 Cal.App3d 273) or marital settlement agreement (Marriage of Testa (1983) 149 Cal.App3d 319, 321); dismissal of an action (Bergloff v. Reynolds (1960) 181 Cal.App.2d 349); an order denying a motion for new trial (Polluck v. Standard Oil Co. (1967) 256 Cal.App.2d 307); and an order granting a change of venue (Badella v. Miller (1955) 44 Cal.App.2d 81).

When relief is sought on the basis of your attorney's mistake, inadvertence, surprise, or neglect, it is limited to a set aside of a default and/or default judgment.

What constitutes mistake, inadvertence, surprise, or excusable neglect under Code of Civil Procedure § 473(b)?

There are two types of mistakes that may qualify for Code of Civil Procedure § 473(b) relief: mistake of fact and mistake of law. A mistake of fact occurs when you believe the facts to be other than they really are, whereas a mistake of law occurs when you misunderstand the legal consequences of known facts.  For example, a mistake can arise in a communication between an attorney and client such as when there is a misunderstanding between them as to the scope of the attorney's representation. Bice v. Stevens (1958) 160 Cal.App.2d 222.

Surprise or inadvertence may result when you are unexpectedly placed in a situation to your detriment through no fault of your own. Excusable neglect may occur if you suffer from a disability. Examples of disabilities that may qualify as excusable neglect include mental confusion, inability to speak or understand English, and certain illnesses.

When a court assesses whether surprise, inadvertence, or excusable neglect has occurred, the court looks at whether a reasonable prudent person under the same or similar circumstances might have made the same error as you.

Who has the burden of proof?

If you are the party seeking relief from a default, judgment, dismissal, order, or other proceeding taken against you, you have the burden of proof. You must convince the court by a preponderance of the evidence, meaning that it is more likely than not,  that the default, judgment, dismissal, order, or other proceeding taken against you was the result of you or your attorney's mistake, inadvertence, surprise, or excusable neglect.  In meeting this burden, you must show the court a satisfactory reason as to why your default was taken and that you diligently sought relief after discovering the default, judgment, dismissal, order, or other proceeding taken against you.

What is the deadline to file my motion to set aside the default, judgment, dismissal, order, or other proceeding taken against me under Code of Civil Procedure § 473(b)?

Your application for relief under Code of Civil Procedure §473(b) must be made “within a reasonable time, in no case exceeding six months, after the judgment.” Civ. Proc. Code § 473(b). However, if you are seeking relief from a default and default judgment, the general rule is that the six month period runs from the entry of default, not from the entry of judgment. Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970. If you are claiming the default was a result of attorney error, the six month period runs from the entry of your judgment.  Sugasawara v. Newland (1994) 27 Cal.App.4th 294. In both situations, your motion must be filed with the court and served on the other party before the end of the six months to meet the deadline.

There are  certain situations in which the six-month period to bring your motion for relief may be shortened to 90 days.

It is important to note that if you delay in seeking relief for more than three months after learning of the default, judgment, order, dismissal, or other proceeding taken against you, the court will likely deny your motion unless you have a reasonable explanation for the delay.

Once the six month period for filing the motion has passed, you and the other party cannot agree to set aside the default, judgment, dismissal, order, or other proceeding taken against you.

What must be filed with my set-aside motion?

When you file your motion to set aside the default, judgment, dismissal, order, or other proceeding taken against you, you must include a copy of your Response – Marriage/Domestic Partnership (FL-120) or other proposed pleading to be filed in the action. Civ. Proc. Code §473(b). If you fail to do this, your requested relief will be denied.

You should also file a declaration showing the nature of your error, the reason for your error, why the error should be excused, and that you diligently sought relief. If you are requesting relief based on your attorney's error, you must specifically state you are doing so, and your attorney must file a sworn affidavit showing what caused their mistake, inadvertence, surprise, or neglect.

You must also file a memorandum of points and authorities in support of your motion. A memorandum of points and authorities is a document that cites legal authorities and explains how the authority applies to or supports your position.

You need to make sure that when you request relief from a default judgment, you also request that the entry of default be set aside. If you don't, the default will stand, and you will be prevented from filing anything in the action. This would allow the court to enter another default judgment against you.

Who do I serve with my motion?

If a judgment has been entered you must serve the other party. Service on the other party's attorney is inadequate.

Can the court place conditions on my relief?

Yes. The court may impose a penalty of a certain dollar amount on you or your attorney if you are the offending party, direct an offending attorney to pay a certain amount to the State Bar Client Security Fund, or order other relief as appropriate.

Why do courts allow this type of relief?

The law favors resolving matters on the merits and disapproves of a party who attempts to take advantage of the mistake, surprise, inadvertence, or neglect of an adversary. Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681. Any doubts in applying relief under Code of Civil Procedure § 473(b) will be resolved in favor of the party requesting relief.

About the Author

Jaime Kissinger

Jaime L. Kissinger built her family law practice on the philosophy that families from all walks of life deserve access to quality legal services in some of the most vulnerable and difficult times of their lives. This belief drives her steadfast commitment to her clients in the Contra Costa commun...

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