I Need to Find a Sample Motion to Set Aside and Vacate Default Judgment
Question: I need to find a sample motion to set aside and vacate a default judgment. What are the elements of such a court filing?
Answer: Your motion to set aside and vacate default judgment should contain:
- Notice of Motion and Motion
- Memorandum of Points and Authorities
- Supporting Declaration
- [PROPOSED] Order
- [PROPOSED] Answer to Complaint
- Proof of Service
TO ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on November 12, 2012, at 9:30 a.m. or as soon thereafter as the matter may be heard in Department 39 of the above entitled court, located at 111 N. Hill St., Los Angeles, CA 90012, defendant JOHN JONES will move the court for an order granting relief from the Judgment entered on July 24, 2009.
This motion will be made on the grounds that the July 24, 2009 judgment was taken against defendant JOHN JONES due to mistake, inadvertence, surprise or excusable neglect.
- This motion is based upon Code Civ. Proc. §473(b), which authorizes the Court to grant said relief based upon mistake, inadvertence, surprise or excusable neglect.
- This motion is further based upon this notice, the attached Memorandum of Points and Authorities, the [Proposed] Answer to the Complaint, the Declaration of JOHN JONES filed herewith; upon the records and files of the Court in this matter; and upon such further evidence and argument as may be presented prior to or at the time of hearing on the motion.Dated: October 26, 2012 Respectfully submitted, _________________________
Next you will need the memorandum of points and authorities:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER GRANTING RELIEF FROM JULY 24, 2009 DEFAULT JUDGMENT
Good cause exists for bringing this motion because moving party was never properly served with the motion and also because moving party was a real estate sales person and was informed and believed that his employer, defendants DOWNEY LENDING CORPORATION, dba DOWNEY LENDING GROUP, would be defending him in this lawsuit. (See declaration JOHN JONES ). Moving party was only marginally involved in the transaction for which plaintiff complains. Moving party requests that this case be tried on its merits and that moving party have a chance to properly defend himself in this matter. Moving party has attached a [Proposed] Answer to the complaint hereto as Exhibit “A”.
THE COURT IS AUTHORIZED TO GRANT THE REQUESTED 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.”
Code Civ. Proc. §473(b).
In considering mistake, surprise or excusable neglect, the court has broad discretion under Code Civ. Proc. §473 and such discretion is liberally construed so that lawsuits may be determined upon their merits. Riskin v. Towers, 24 Cal. 2d 274, 279, 148 P.2d 611, 153 A.L.R. 442 (1944).
The “excusable neglect” referred to in Section 473 is that neglect which might have been the act of a reasonably prudent person under the same circumstances. Hover v. MacKenzie, 122 Cal. App. 2d 852, 85, 266 P.2d 60 (2d Dist. 1954)7.
THIS MOTION IS TIMELY MADE
“Application for this relief. . .shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
Code Civ. Proc. §473(b).
As stated in the Declaration of JOHN JONES , filed herewith, moving party first became aware of the judgment six months ago when he was served with the Corrected Default Judgment by Court on April 25, 2012.
In view of the foregoing authorities and facts, it is respectfully requested that the Court enter an order vacating the July 24, 2009 Default Judgment.