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What can a Defendant do if the default prove up hearing is scheduled prior to the motion to set aside hearing?

Los Angeles, CA |

In Orange County, the default prove up hearings are held on Mondays and Motion to set aside hearings are held only thursdays. The default prove up hearing is scheduled next week. The motion to set aside the default has not been scheduled yet. However, there is not enough time (16court days) to give notice to the Plaintiff for the motion to set aside the default hearing. It only makes sense for the court to address the motion to set aside the default before the prove up hearing. If the Plaintiff refuses to stipulate the set aside or continue the prove up, what options does the Defendant have?

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Attorney answers 3

Best Answer

You would have to bring an ex parte application for order shortening time for service of notice of motion to set aside default.

In Orange County Superior Court, most of the judges require that you file the actual ex parte application by 3:00 p.m. of the day BEFORE the ex parte hearing, in addition to giving ex parte notice.

So... I suggest that you first seek Plaintiff's stipulation to set aside default so that the prove-up hearing goes off calendar. Otherwise, I think there is no real urgency to go in ex parte. Rather, you can make a noticed motion to set set aside default AND vacate default judgment after the prove-up hearing takes place.

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 (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.


Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

Unless the plaintiff would stipulate (agree) to take the judgment prove up hearing off calendar, you would need to give proper ex parte notice and bring your motion on an ex parte basis at the earliest date the court may hear such a motion. You need to immediately consult your own attorney to protect your legal rights.



Is a proper ex parte notice 10am a day before the hearing?


The obvious choice is to go in on an ex parte motion if opposing counsel won't stipulate to move the prove up hearing or vacate the default.

File your ex parte papers (moving papers, plus a declaration that you contacted opposing counsel and notified him of your intent to appear ex parte by 10:00 a.m. the day before the hearing) with the clerk's office, remember to give opposing counsel notice by 10:00 a.m. the day before the hearing that you are going in ex parte (and serve him via email and fax with a copy of your papers) and then show up on the ex parte hearing calendar for your judge and make your argument.

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