Motion to Vacate a Default Judgment or Set Aside a Dismissal: Jurisdiction and Procedure

You will want to file your motion in the same Court in which the Default or Dismissal was granted. This Guide focuses on motions to be brought in San Diego County Superior Court.

If you have a default judgment entered against you in Small Claims Court, there is a simplified procedure for making a motion to vacate (cancel) the judgment. In that case, do not use the motion template under the "Sample Motion" page of this guide. Instead, use standard court form SC-135 "Notice of Motion to Vacate (Cancel) Judgment,"  which is a fillable form.  If you use this form to ask the court to vacate a default judgment and your request is granted, a trial may be held immediately at the same hearing. For that reason, bring all witnesses, books, receipts and other papers or things with you to the motion hearing that you need to prove your case.

Motions are a form of legal pleading (or brief, or court papers) in which you ask the Court to do something. You are moving the Court to take action for you.

Motions generally are comprised of several different parts. Each part is necessary, and serves a specific purpose.

• The Notice of Motion informs the Court of what it is you are asking them to do, and informs any party to the action where and when the Motion is going to be heard.
• The Memorandum of Points and Authorities informs the Court of the law upon which you are basing your Motion. In other words, the basis for your right to ask the Court to do something.
• The Declaration is the portion in which you set forth your statement of facts. You will sign this section under penalty of perjury.
• The Order is for the judge to sign. You will write out what you wish the Court to do or order, and if the Judge agrees with you and rules in your favor, the Judge will sign the Order and it will serve as the Court's direction in the matter.
  • In general, unless the Court orders otherwise, the person who prevails on the motion will serve a proposed order on the other party within 5 days of the ruling (see California Rules of Court 3.1312). If there is no objection by the other party within 5 days, the proposed order is then sent to the Court for signature.
  • However, Courts vary on whether formal orders are required or whether the Court simply issues a minute order. It is the Court’s discretion and power to impose conditions on a motion to set aside entry of a default judgement under Code of Civil Procedure sec. 473. Please check your judge’s chamber rules here to determine whether or not they require a proposed order when you file your motion after the hearing, or if the minute order will suffice as the official order.

After you draft all these different parts, you will assemble them in one packet. This packet is the Motion.

You will also need to serve the parties and this will require a Proof of Service form.

1. Prepare your own motion papers using the sample brief as a guide. The sample pleadings show you where to insert your own unique information and what kind of information to provide. Note that Small Claims procedures are a little different. Look at the separate box on our Resources tab for links to Small Claims forms that apply to Default and Dismissal Relief.

Note: Do NOT fill in the information about the time, place, and date of the hearing until you actually file the papers at the courthouse. Leave a blank for those areas so you can write or type it in after the court clerk gives you a reservation date for the hearing.

2. After you have prepared your pleadings, make two copies. You should have a total of three copies: an original and two duplicates. The original is filed with the court clerk; one copy is for your records; and the third copy is served on the opposing party. For further guidance on formatting your paperwork, see California Rules of Court, Rules 2.100 - 2.119.

3. Take all three copies to the court clerk at the Business Office of the appropriate San Diego Superior Court. Hand all three copies to the clerk and tell the clerk you are filing a motion and you want to request a court date. The clerk will assign you a date, time, and court room (department) in which you will be heard. Fill in the assigned date, time, and department number on all three sets of your papers.

• Under California Code of Civil Procedure §1005(b) and California Rule of Court, Rule 3.1300(a), for civil motions you have to give at least 16 days notice to the other parties and allow an additional 5 days for the papers to reach them by mail, if the place of mailing and the place of address are within California. So ask for a date about 22 days away.

4. The court clerk will take all three copies and file stamp them. This shows they were received by the court. The clerk will hand you back the two copies. The clerk puts the original in the court's file.

5. Keep one of the file-stamped copies for yourself. The other copy must be served on the opposing party. This is what keeps the process fair. The delivery has to be done by someone over 18 years of age who is not a party to the case. You can't do it yourself, but a friend, neighbor, or co-worker can do the delivery for you. You will need a Proof of Service form to prove that you served the opposing party. There are several forms, and they are specific to whether service is being done personally, or by mail. If you have more questions about proof of service, use our Service of Notice and other Papers guide. 

6. Take the Proof of Service form and type the top part with your name, the case title, case name, etc. Check off the box showing the County Courthouse's address. Fill in the name of the person who will do the delivery (or "service") for you. List the documents being sent. Then have the delivery person check to make sure that each of the listed documents goes in the envelope, that the envelope is sealed, and correctly addressed. Include a dated but unsigned copy of the Proof of Service form in the packet.

7. Your friend/neighbor/colleague then drops the packet in the mail, or delivers it in person, and signs the original Proof of Service form. This certifies under penalty of perjury that service of papers has been carried out properly.

8. Take the completed Proof of Service form, make a copy, and take both copies down to the clerk. Have the clerk file-stamp the forms. The clerk will put one in the court's file and give one back to you. Keep your file-stamped copy as a receipt.

9. Go to the hearing. Adhere to the court's requirements for appearances.