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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT...

Sanger, CA |

When completing my "MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO VACATE DEFAULT JUDGMENT" due to not receiving my original summons on a civil lawsuit, can you tell me if the beggining is correct?

"MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
VACATE DEFAULT JUDGMENT

THE COURT SHOULD GRANT THE MOTION TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT UNDER CODE OF CIVIL PROCEDURE SECTION 473(b) BECAUSE THE DEFAULT JUDGMENT WAS TAKEN AGAINST DEFENDANT THROUGH HIS/HER ______________________[MISTAKE and/or INADVERTENCE and/or SURPRISE and/or EXCUSABLE NEGLECT], AND JUSTICE REQUIRES DETERMINATION OF THE ISSUES AFTER A HEARING ON THE MERITS OF THE CASE." (my civil procedure is due to not receiving the original summons which was mailed to my mothers address)

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Attorney answers 3

Best Answer
Posted

No. If the reason you are seeking to set aside the default and vacate default judgment is because you were never served with the summons, then the basis for your motion is Code of Civil Procedure section 473.5, not section 473(b).

In California, a defendant who has been defaulted by failure to respond to a summons and complaint might have an opportunity to set aside the default based upon Code of Civil Procedure § 473.5.

“When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action.” (California Code of Civil Procedure § 473.5(a). )

The motion must be served within the earlier of two years after entry of a default judgment against him or her; or 180 days after service on him or her of a written notice that the default or default judgment has been entered.

The moving party should submit a sworn declaration as to when he or she first learned of this action, whether he or she was ever served with the summons or complaint in the action, and whether he or she ever received notice of entry of default.

“A notice of motion to set aside a default or default judgment and for leave to defend the action shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.” (California Code of Civil Procedure § 473.5(b).)

Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.

Asker

Posted

It is civil lawsuit (not a small-claim) I am gathering the following documents: 1) Notice of motion to set aside default and default judgment 2) Memorandume of points & authorities 3) Answer 4) Affidavits (from my mom and I) my mother is the one said to had received the summons on July 2010 5) Call the calendar clerk to schedule a hearing date 6) file and serve my notice of motion and supporting document... anything else that I should obtain or do?

Asker

Posted

When I complete my "answer"...it is in reference to their complaint?

Frank Wei-Hong Chen

Frank Wei-Hong Chen

Posted

Yes, it is an Answer to Complaint. You can use the form for the Answer (Judicial Council Form PLD-C-010): http://www.courts.ca.gov/documents/pldc010.pdf

Asker

Posted

Thank you very much....you have been really helpful as so has been this website.....

Asker

Posted

Would I select #3, b (1) if I never received the original summons, complaint, etc.? If so, what would I type in this secton Of Form PLD-C-010? Any help would be appreciated...

Asker

Posted

am I able to use this form for a civil lawsuit (not a small claim case)? If the civil judgment was filed by the attorney representing the collection agency, do I put the law firm or the collection agencies name on the #1) TO COMPLAINT OF (name): (or) #2) TO CROSS-COMPLAINT (name): of the Anwer?

Posted

The beginning you have set forth seems reasonably okay. But keep in mind you will need (1) notice of motion and motion, and (2) declaration(s) in support of your motion, as well as the memorandum of points and authorities. You will not prevail under CCP 473(b) unless your declaration contains explicit facts demonstrating mistake, inadvertence or excusable neglect. In addition, your memorandum of points and authorities should cite and discuss case law which supports your proposition that the facts you recite in the declaration constitute mistake, inadvertence or excusable neglect. There are California cases which separately discuss each of these three factors.

This response is for information purpose only and does not constitute a legal advice. This response does not create an attorney-client relationship.

Paul Y. Lee

Paul Y. Lee

Posted

Having read Mr. Chen's response and re-reading your question, I agree with Mr. Chen. (I neglected to read the very last part of your question the first time.) Although motions to set aside default can be based on CCP 473(b), if the you were never served with the subpoena because it was sent to your mother's address, you should focus on CCP 473.5 rather than 473(b).

Posted

If you were never served with the summons and complaint such that you did not receive notice in time to defend the lawsuit you should also add in an argument under code of civil procedure section 473.5 as well. Contact a local lawyer you should be able to get a lawyer to do it right for about 300 or 400.00 dollars. Good luck.