California motion to vacate void judgment

A motion to vacate a void judgment in California is the topic of this blog post. The motion to vacate a void judgment is filed under California Code of Civil Procedure section 473, subdivision (d).  Proper use of this motion can be of great help to a defendant against whom a void judgment has been entered.

A judgment may be void as a matter of law due to (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

Code of Civil Procedure section 473, subdivision (d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Note that in order to obtain relief under subdivision (d) the judgment must be considered a void judgment, and not merely a voidable judgment.

“A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.

Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.

Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.

If the court has jurisdiction over the parties and subject matter but acts “in excess of its jurisdiction,” its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.

If a party did not have actual or constructive notice of the lawsuit then the judgment is void.

And if the plaintiff did not serve the statement of damages required in personal injury and death actions then the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862-default improperly entered for failure to appear at trial.

Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.

The law is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.

Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required.

The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.

“Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.Peralta v. Heights Medical Center, Inc. (1988) 485 US 80, 86–87, 108 S.Ct. 896, 900 (internal quotes omitted).

And a California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.

Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249—not affected by nonresident’s failure to bring motion to quash.

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a void judgment sold by the author can see below.

Vacating a void judgment in California is the topic of this blog post.  A motion to vacate a void judgment is authorized by California Code of Civil Procedure section 473, subdivision (d) and proper use of the motion can be of great help to a defendant against whom a void judgment has been entered.

A judgment may be void as a matter of law due to (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.

Code of Civil Procedure section 473, subdivision (d) states that, “The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order.”

Note that in order to obtain relief under subdivision (d) of section 473 the judgment must be considered a void judgment, and not merely a voidable judgment.

“A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable.” In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.

A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164.

If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.

Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.

Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.

If the court has jurisdiction over the parties and subject matter but acts “in excess of its jurisdiction,” its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.

If a party did not have actual or constructive notice of the lawsuit then the judgment is void.

Lack of actual or constructive notice of proceedings (e.g., because papers served on defendant’s attorney who had been suspended by State Bar and thus had no authority to represent defendant). Lovato v. Santa Fe Int’l Corp. (1984) 151 Cal. App.3d 549, 553.

And if the plaintiff did not serve the statement of damages required in personal injury and death actions then the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862-default improperly entered for failure to appear at trial.

Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.

The law is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.

Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required.

The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.

“Where a person has been deprived of property in a manner contrary to the most basic tenets of due process, it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” Peralta v. Heights Medical Center, Inc. (1988) 485 US 80, 86–87, 108 S.Ct. 896, 900 (internal quotes omitted).

And a California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.

Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249—not affected by nonresident’s failure to bring motion to quash.

Attorneys or parties in California who would like to view a portion of a sample motion to vacate a void judgment sold by the author can see below.

The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995. If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

If you enjoy this blog post, tell others about it. They can subscribe to the author’s weekly California legal newsletter by visiting the following link:  http://www.legaldocspro.net/newsletter.htm

Copyright 2013 Stan Burman. All rights reserved.

DISCLAIMER:

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.

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11 thoughts on “California motion to vacate void judgment

  1. Angela

    Very informative. This is exactly what I was looking for. I was planning a trip to the law library and to read up on vacating a judgment. I am happy to hear that if someone has not been properly served that there is no time limit and if correctly served six months.

    This information has cut my research in half. I was going to appeal the decision the judge made, but this route will take a quicker approach.

    And if the judge does not void the order I still can appeal.

    Thanks again Angela

    Reply
  2. Darren Chaker

    Service is such a strict issue for courts to deal with prior to entering default judgment, it is good to see your blog addresses the most common faults in servce.

    Reply
  3. Jennifer

    Stan, you’re the man! Your articles have helped me immensely in the past few years as well as a sample motion that I purchased from you and used successfully in court. Thank you so much!! BTW, you communicate in a way that is clear and so easy to understand. Very good reasoning abilities!

    Reply
  4. Michele Johnson

    This is great info and i believe the judgment entered against me s a void one. How does one go about removing a wage garnishment based on a void judgment? I appreciate the help you offer many victims of fraud.

    Reply
  5. Michele

    Hi Stan, Do you have a sample or template for Motion to vacate a void judgment in california. The reason I believe it is a void judgment is because:
    1. It was a time barred debt or in other words the collection company sued me for a debt that was already past the SOL. (CCP 337 (1) and (2) )They claim Breach of Contract
    2. They subpenead all documents related to the account from Chase Bank, the original creditor, and Chase’s representative returned an affadavit stating there was no contract, signed or otherwise, only credit card statements. The statements shows the last activity (a past due payment) occurred on April 20, 2007 and the complaint was filed May 26, 2011. Just a bit over four years. They claim Breach of Contract on a Cardholder agreement and Common Counts, because I supposedly became indebted to their predecessor in interest ( and there was at least two predecessors) within the last four years on both an open book account and an account stated.No such account was ever stated!

    3. In addition, the plaintiff filed the lawsuit in a county that I did not live in, but stated in the complaint, “This court is the proper court because a defendant lives here now.” This statement is item # 7 on the Complaint form (PLD-C-001) and I do not believe that statement in such a format is a “Sworn Affadavit” in accordance with CCP 473(d).
    4.
    The house number listed on all POS is a wrong number which does not exist. ( I sent an envelope addressed to the plaintiff’s lawyer at the nonexistent address theyalledgedly served me at, and it was returned to sender, me, because there is no such address. Oddly, when they filed for a writ of execution so thay could attach my wages they somehow suddenly and singularly listed the correct house number on the documents provided to the County Recorder. Of course, I no longer lived there by then. And THEN, all POS for subsequent notices such as wage garnishment were being served at that wrong address again.
    4. I filed a motion to set aside the default judgment, but in the end the judge refused to hear me out, and denied my motion to set aside and dismiss in a bit of a rage. I searched the Court Case index and discovered that the Plaintiff that sued me and won a default judgment, did so in every other case they filed in that county court house in that particular judge’s court. The list was quite extensive.
    4. Nearly 50 credit card statements (the subpenead documents from original creditor) were submitted as evidence to the court, all of them had my actual correct address on each one.

    .
    please advise,
    thanks,
    michele

    Reply
  6. HudleyFlipside

    Thank you,. Does the Motion to Vacate Void Judgment have to be served by a party not innovated with the case to the courts, and does a copy need to be sent to the plaintiff? (I know I am a nice person.) I was not served a summons at all and only found out recently that a summons was issued or filed by looking it up in the LASC case summary..

    Reply
    1. Stan Burman Post author

      Yes the motion must be served on the plaintiff or their attorney by someone who is not a party to the action. The motion may be served by first class mail.

      Reply

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