Within 6 Months After Entry of Default: Fault of Attorney
If a default was entered because of an attorney's fault, relief from the default MUST be granted if sought within six months from the date the default was entered. California Code of Civil Procedure Section 473(b). Such relief is obtained by a motion supported by an attorney's affidavit of fault. A non-attorney's declaration of fault does not trigger the right to manadatory relief from default. Stafford v. Mach (1988) 64 Cal. App. 4th 1174, 1187-1189.
Within 6 Months After Entry of Default: Excusable Mistake
If the default was not the result of any attorney's fault, the default can still be set aside if it was obtained as a result of "mistake, inadvertence, surprise or excusable neglect". California Code of Civil Procedure Section 473(b).
What constitutes excusable neglect "boils down to whether the moving party has shown a reasonable excuse for the default". Weil & Brown, California Practice Guide, Civil Procedure Before Trial, Para. 5:327.
This relief, that must be sought by motion filed within six months of the default, is subject to the discretion of the court.
After 6 Months
A default entered after six months can be set aside if the judgment is void, or if procured by extrinsic fraud or mistake
A default judgment is void if the summons and complaint were not properly served and the defendant had no notice of the action, or if the amount of the judgment exceeeds the amount sought in the complaint, or in a statement of damages.
A default can also be vacated on equitable grounds based on extrinsic fraud or mistake. "[T]hese terms are given a broad meaning and tend to encompass almost any set of circumstances which deprive a party of a fair adversary hearing". In Re Marriage of Park (1980) 27 Cal. 3d 337, 342.
It is difficult to set aside a default after six months. Hence, relief should be sought as soon as the defendant becomes aware of the default.
If an attorney's fault caused the default, a motion to vacate the default should be brought on that basis as this is the only such relief the court is required to grant.
If an attorney was not involved when the default was taken, retain one immediately, as getting relief from default is a challenging motion that requires the skills of competent counsel.
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