Motion to Vacate a Default Judgment or Set Aside a Dismissal: Eviction/Unlawful Detainer

1. If you missed the deadline to file an answer in response to the Summons, but the plaintiff (landlord) has not yet obtained a default judgment, immediately contact the landlord or landlord's attorney and ask for an extension of time to respond. If the landlord agrees to an extension of time, prepare a Stipulation (written agreement) signed by you and the landlord (see sample Stipulation below).

2. Prepare an Answer using form UD-105.

3. File both the Answer and the Stipulation with the Court. 

1. Get Legal Help if Possible. If you missed the deadline to respond and the landlord has obtained a default judgment, you must act quickly to avoid eviction. You should strongly consider contacting a free legal aid organization or hiring an attorney to help you with a response. 

2. First, Ask the Landlord to Withdraw the Default. If the summons was improperly served and/or or you did not receive actual notice of the lawsuit, contact the landlord or the landlord's attorney before you file a motion to set aside the default.  With proof that you did not receive notice, you may be able to convince the landlord/landlord's attorney to withdraw the default and provide you with an extension of time to answer the complaint. See below for a sample Stipulation to Set Aside Default to use if you reach an agreement. If you cannot reach an agreement move on to step 3. 

3. Request a Hearing Date.  Begin by calling the Law and Motion Line at San Diego Superior Court at 619-450-7371 during the Court's business hours. Have your case number ready and follow the instructions in the recording. This reserves your hearing date and time, but the court will not hear your case unless you file and serve the right paperwork. In your message leave your name, case number, type of hearing (Motion to Vacate a Default Judgment, and Ex Parte Application), your role in the case (Defendant) and a phone number where you can be reached. Include whether you have received a notice to vacate from the Sheriff with a lockout date, and that you are requesting the soonest available motion hearing. 

4. Prepare Your Motion. To move to set aside a default, you must prepare the following documents: Notice of Motion, Memorandum of Points and Authorities, Declaration, an Answer using form UD-105, and Proposed Order. In most eviction cases you will also need an Ex Parte Application for an Order Shortening Time, to have the motion heard prior to being evicted. For the ex parte application you can use San Diego Superior Court Form ADM-252. You will also need to pay a filing fee or request a Fee Waiver. See below for modifiable samples of the motion documents and ex parte application form. There are four grounds (reasons) that allow the court to set aside a default: mistake, inadvertance, surprise, or neglect. Cal. Code of Civ. Procedure §473(b). The default can also be set aside based on lack of actual notice to the tenant, as long as the lack of notice was not due to the tenant's avoidance of service. Cal. Code of Civ. Procedure §473.5. You must be able to argue that one of these grounds applies in your case to ask for relief from default.

5. If a writ of possession has been granted in your case, you should include language in your motion asking that the writ of possession also be quashed or vacated along with the default judgment. A writ of possession is a document prepared by the court and provided to the Sheriff that authorizes the Sheriff to physically remove a tenant from the property if the tenant does not leave on their own within five days. Cal. Code of Civil Procedure §715.020.

For more information about the procedures for copying, filing and serving the Motion to Set Aside the Default once you have prepared the documents, see the Jurisdiction and Procedure tab of this guide. 

If you have an eviction date coming up quickly, you must also prepare an Ex Parte Application for an Order Shortening Time (i.e., to set an earlier hearing date for your motion to avoid eviction). You can use San Diego Superior Court Form ADM-252 for the Ex Parte Application. File this application together with your motion papers. For more information about the law and procedure for ex parte applications, see this guide on Ex Parte Applications. 

There are several legal aid organizations in the San Diego area that provide free legal help to qualifying tenants facing eviction. Most of these agencies can only assist tenants who meet income requirements. Tenants who are in default in an eviction case should act quickly to get help. Be sure to mention when calling these agencies if you have already received an eviction notice or if you have been served with an unlawful detainer complaint. 

There are special rules to prevent eviction of a servicemember unless the landlord meets certain requirements. These rules are found in the federal Servicemembers Civil Relief Act, 50 U.S.C. §§3901-4043, and the California Military & Veterans Code §§406-407.

Additionally, if a defendant who is a servicemember does not appear in a civil case (including an eviction), a default judgment cannot be issued until after the court appoints an attorney to represent the defendant's interests. 50 U.S.C. §3931(b)(2). The court can also postpone the case for 90 days under certain circumstances to allow the attorney to contact the servicemember or prepare a defense. 50 U.S.C. §3931(a).