Vacating a default California unlawful detainer (eviction or UD) judgment by ex-parte application is the topic of this blog post.
Due to the short time frames involved in an eviction, if the tenant is still living in the premises it is best to do an ex-parte application instead of a regular noticed motion. The ex-parte application must be heard by the Court before the scheduled lockout date.
Normally, a party seeking an ex parte order in a civil case must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance (absent a showing of exceptional circumstances justifying shorter notice). In unlawful detainer proceedings, however, an ex parte applicant may give shorter notice “provided that the notice given is reasonable.” See California Rule of Court 3.1203. A declaration must be filed with the Court giving the details of when, and how notice was given to the opposing party.
Any motion to vacate would normally be made pursuant to California Code of Civil Procedure § 473 which states in pertinent part that: “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, inadvertance, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”
In order to qualify for relief from default and/or judgment under Section 473 the moving party must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and 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.
A copy of the proposed Answer should be attached as an Exhibit to the declaration of the tenant, the declaration should include the details on why the tenant did not file a timely answer to the complaint, in other words they should make a showing of mistake, inadvertance, surprise or excusable neglect.
Attorneys or parties in the State of California who wish to view or purchase a sample ex-parte application to vacate a default and unlawful detainer judgment sold by the author can see below.
The author of this article, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. Visit his website at http://www.legaldocspro.com
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