Motion to Vacate a Default Judgment or Set Aside a Dismissal: Intro and Overview

This guide provides information and resources for you to use in making a motion to vacate a default judgment or set aside a dismissal.

This guide is not intended as a substitute for doing your own research.

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A default judgment is typically obtained by the Plaintiff when the Defendant does not appear at a hearing, or neglects to file an Answer to the Summons and Complaint. The judge therefore grants the motion (or decides the case) by default.

A dismissal, in contrast, might be granted to the Defendant in a situation where the Plaintiff files a lawsuit, but then fails to respond to filings and orders in the case.

A default judgment or dismissal may be set aside or vacated by the court at the request of the losing party in certain circumstances, and within certain time frames:

• Within six months of the entry of default or dismissal, as long as the default or dismissal was the result of the losing party's "mistake, inadvertence, surprise, or excusable neglect"*, or (rarely) because the court has assumed jurisdiction of the law practice of the the party's attorney. (See California Code of Civil Procedure §473(b), §473.1); or
• Up to two years after entry of a default judgment where service of the original summons did not result in actual notice to the Defendant (See California Code of Civil Procedure §473.5); or
• Within 180 days after entry of a default judgment if the Defendant received written notice of the default judgment (See California Code of Civil Procedure §473.5)
• If you are filing a motion to vacate a default judgment in Federal court, review Federal Rules of Civil Procedure 55 Default; Default Judgment and 60 Relief from a Judgment or Order.

*Examples of mistake, inadvertence, surprise, or excusable neglect may include:

• Illness of Defendant
• Attorney's abandonment of client
• Fraud by the Plaintiff

This guide assumes that you are a Defendant who is filing a motion to vacate a default judgment. If you are a Plaintiff filing a motion to set aside a dismissal, you will need to change the language and tailor the language in your brief accordingly. The statutes and rules you rely upon, however, will be essentially the same.

You will need to file a number of things. Look at it as two separate processes.

For Small Claims Cases click here for simplified process.

First, you will need to file the Motion to Vacate/Motion to Dismiss, as noted above and described in this Guide.

Second, at the same time you will also need to respond to the original Complaint, as if you were responding to it timely. This is because when you seek relief from a default, you are asking the Court to essentially roll the proceedings back in time to the beginning. You will need to respond as if you are back at the beginning of the lawsuit.

You will want to do research to determine how to respond. You may wish to file an Answer. You may wish to file a Demurrer, or file a Motion to Strike. Each of these responses has a different purpose and is a different strategy.

Responding to a Complaint is beyond the scope of this guide. Consult with our librarians for resources to assist you. We have numerous practice guides on this subject.

You may also wish to consult the Nolo book Win Your Lawsuit (KFC968.Z9 D86 2010), which you can access in our reference section at our Downtown location. This book discusses the various responses and their procedures.

Form Answers can be found on the Judicial Council Forms website.

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