This blog post will outline the issues involved for a defendant filing a motion to vacate a default and/or default judgment in California under Code of Civil Procedure 473.5 on the grounds that the service of the summons and complaint did not result in actual notice to them in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect.
The time limit for filing a motion under Section 473.5 is substantially longer than the six months allowed by Section 473.
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 o f : (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.”
There are many reasons that someone may not have received actual notice of a lawsuit, including the fact that substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint, etc. The statutory provisions for substituted service must be strictly complied with, and the statutory conditions upon which such service depends will be strictly construed. This means that if substituted service has been used and the procedures were not strictly followed, then the Court will be much more likely to grant the motion to vacate.
And the substituted service must be made at the address where the defendant currently lives, even service made at a close relative’s house can be ineffective.
Substituted service to estranged wife’s parents’ address in action against husband and wife for breach of restaurant equipment lease was ineffective despite parents’ address appearing on her driver’s license where wife had established separate legal household. See Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417.
And a plaintiff has to first attempt to personally serve a defendant with the summons and complaint before attempting substituted service, or any other form of what is called “constructive service” including service by publication.
In order to qualify for relief from default and/or judgment under Section 473.5 the moving party must show that they: (1) timely moved the Court for relief from default and/or judgment, (2) did not receive actual notice of the lawsuit in time to defend the action, (3) make a sufficient showing that their lack of actual notice was not due to avoidance of service or inexcusable neglect, and (4) provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.
Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default. The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court’s order setting aside a default.
Attorneys or parties in California who would view a portion of a sample motion to vacate default judgment under Section 473.5 for sale by the author can see below a sample motion complete with a memorandum of points and authorities with full citations to case and statutory authority and a sample declaration.
The author of this article, Stan Burman, is a freelance paralegal with over 15 years of experience in civil litigation in California Courts. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information.
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