How to Reopen a Case the Plaintiff Won Because You Did Not Respond
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance, consult a lawyer.
Click here to download this guide as a PDF.
Click here to download a template motion that you can customize.
This packet includes:
When a defendant is served with a Summons and Complaint, the defendant has a limited amount of time (typically 30 days) in which to respond to the lawsuit. If a defendant fails to respond, the plaintiff may ask the court to enter a "default judgment" against the defendant.
In a breach of contract/collection case, the amount of the judgment is usually the amount requested by the plaintiff in the complaint. In a personal injury or property damage case, the amount awarded is limited to the amount of damages established by the evidence the plaintiff presents to the Court.
GROUNDS FOR RELIEF
California Code of Civil Procedure sections 473(b), 473(c), 473(d) and 473.5 specify the most common grounds upon which you can base a motion for relief of default or default judgment. These grounds include:
Inadvertence, Surprise, Mistake, or Excusable Neglect (CCP 473(b)):
Perhaps the most common basis for set aside of a default judgment is inadvertence, surprise, mistake or excusable neglect. Under CCP §473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect. This motion must be filed within six months of the default being set aside.
"Inadvertence" and "excusable neglect" are virtually synonymous (See Barnes v. Witt, 207 Cal. App. 2d 441 (1962)), and are the most common reasons for a set aside. In addition to filing a timely motion, the defendant asking for the set aside must present sufficient evidence for the court to find that the inadvertence or neglect was excusable. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect. Examples of excusable neglect include:
- Illness that disables the party from responding or appearing in court
- Failure to respond because you relied on your attorney to do so
- Failure to appear at trial because you relied on misinformation provided by a court officer
A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake, and therefore is not usually ground for relief from a default; however, the more confusing or obscure the critical fact or point of law that caused the default, the more likely it becomes the court will find the mistake to be excusable.
Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.
Typically, in the day-to-day handling of these motions, the court does not focus on whether a problem is a "mistake" or "inadvertence" or "excusable neglect," but rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the requesting party from the judgment.
Party not given "actual notice" in time to defend (CCP 473.5):
Even if service of the summons is proper, sometimes it does not result in "actual notice" to a party in time to defend their case. "Actual notice" means the party genuinely does not know of the litigation, so to show a lack of actual notice a defendant would need to demonstrate to the court that he or she lacked knowledge that the lawsuit existed. This lack of knowledge cannot be caused by the defendant's inexcusable neglect or avoidance of service. Asking to set aside due to this lack of actual knowledge in time to defend the case requires the motion to be filed within a reasonable period of time, and that time must be within two years of the date of the judgment. Goya v. P.E.R.U. Enterprises, 87 Cal. App. 3d 886 (1978).
Void Judgments (CCP 473(d)):
The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action, personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no power to grant, or if the judgment was procured by fraud on the court. Although there are numerous ways in which a judgment may be void, a common way default judgments are found to be void is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant.
A judgment may be void on its face if review of the court file reveals that the judgment was improperly entered, for example, if a default judgment is entered against a defendant less before 30 days have lapsed since the date of service shown on the Proof of Service of Summons. A judgment may be void in fact if the judgment appears to be properly entered in the court file, but evidence shows that the judgment was improperly entered, for example, if a defendant can establish that the Summons was never served.
A judgment void on its face is subject to set aside at any time, (see Nagel v. P & M Distributors, Inc., 273 Cal. App. 2d 176 (1969)), however courts typically require that a motion to set aside a judgment that is void in fact to be filed within a reasonable period of time. In determining the outer limits of what constitutes a reasonable time, courts have referred by analogy to statutory limitation periods. Some courts have applied the six-month period applicable to motions under CCP § 473(b) (see, e.g., Wells Fargo & Co. v. City etc. of S.F., 25 Cal. 2d 37 (1944)). Other courts have applied the two-year or 180-day period applicable to motions under CCP § 473.5, particularly when the judgment or order is void in fact due to an extrinsic defect in service (see, e.g., Rogers v. Silverman, 216 Cal. App. 3d 1114 (1989)). Given the wide discretion of the court and the lack of consensus of what constitutes a reasonable period of time, it is typically best to promptly file any motion seeking to set aside a void judgment.
STEP 1: PREPARE THE MOTION
1.1 Motions in General
A request to set aside a default is made through a motion. A "motion" is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts:
- Notice of Motion;
- Points and Authorities; and
The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion lets the court and the opposing party know what is being requested. The Points and Authorities explains to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.
The first two parts, the Notice of Motion and Motion, are typically combined together in the same document, while the Points and Authorities and Declaration are often separate documents. In many instances, however, they may be combined together into the same document, as in the case of the sample included in this Step-by-Step Guide.
1.2 Modify the Template Motion
At the end of this guide is a sample motion to set aside a default judgment and/or quash service of summons. The portion of this template motion seeking to quash the service of Summons is used in instances where the service itself was improper (e.g., it never took place; substituted service was upon a minor child, etc.). This sample is a checkbox form that can be filled in by hand. Although you may use this form as is, it will be substantially shortened and look cleaner if you download the customizable template of the motion from our website at http://www.saclaw.org/Uploads/files/Step-by-Step/set-aside.rtf and remove the instructions in parenthesis, checkboxes and associated text that are not appropriate to your case, and underlining (after filling in the underlined sections, of course).
Finally, although the declaration (the last part of the motion) can be used as a checkbox form, it is generally preferable if you use your own words to explain the facts of your case. The checkbox form does not anticipate all possible facts that might arise, and is best used as a guideline for some of the points that should be made in your declaration. The declaration is the most important part of the motion, because the declaration presents to the court the evidence that you wish the court to consider when ruling on your motion. Because it is your responsibility as the moving party to prove the basis of your set-aside motion, the better your declaration, the more likely it is that your motion will be granted by the court.
Your motion should also have a copy of your proposed responsive pleading attached (most likely an Answer, see "Responding to a Lawsuit" on our website at http://www.saclaw.org/pages/responding-lawsuit.aspx). This document should be attached as an Exhibit to your Motion to Set Aside.
1.3 Setting the Date of the Motion
Online Court Date Calculator
The Los Angeles County Superior Court offers a handy "Court Date Calculator" to assist in calculating the number of court days (excluding weekends and holidays) from a given date, counting either forward or backward.
In Sacramento, the party requesting the set aside is responsible for setting the date for hearing the motion. There are two very important deadlines you must consider when setting the date of a motion: the filing deadline and the service deadline.
Filing Deadline: The motion must be filed with the court at least sixteen court days prior to the motion date. California Code of Civil Procedure §1005. Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen.
For example, suppose you wanted to file a document on May 21, 2012. You would start counting using May 22nd as day one. Do not count weekends or court holidays (there is only one court holiday in this example, which is Memorial Day, May 28). If you wanted to file a motion on May 21, 2012, the sixteenth court day after that would be June 13, 2012, which is the earliest date the motion could be heard.
Service Deadline: Prior to filing the motion with the court, all other attorneys, or self-represented parties in a case must be served with a copy of the motion. This means that someone over the age of 18 who is not a party in the case must either personally deliver a copy of the motion and related documents to the attorney or self-represented party or mail a copy of the motion and related documents to the party by first class mail.
If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline.
If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and where it is sent. California Code of Civil Procedure §1005. For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. So, using May 21, 2012 as the date of mailing, for example, the sixteenth court day remains June 13, 2012, but five more calendar days must be added to determine the earliest motion date. This would make Monday, June 18th the first day the motion could be heard.
When choosing the date of your motion, be sure that you have left enough time for the motion to be both served and filed in a timely fashion.
1.4 Determining the Department to Hear and the Time of the Motion
Motions to set aside are heard in Department 53 at 2:00 p.m. or Department 54 at 9:00 a.m., depending on your case number, Monday through Friday except for holidays. To determine whether your motion is in department 53 or 54:
IF your case number is in the format XXAMXXXXX or XXASXXXXX where X is a digit, look at the last digit of the case number. If it is odd, then your law and motion department is 53 at 2:00 p.m. If it is even, it is department 54 at 9:00 a.m.
IF your case number is in the format 34-YYYY-XXXXXXXX where YYYY is a year, and X are digits, look at the last two digits in the case number. If the last two digits are in the ranges of 00-24 or 75-99, your law and motion department is 53 at 2:00 p.m. If the last two digits are in the ranges of 25-74, it is department 54 at 9:00 a.m.
STEP 2: MAKE COPIES
Make four (4) copies of your Motion. One of these copies is to be served on the other side's attorney (or the other side, if the other side does not have an attorney); the original and the other three copies are to be filed with the court. Staple each of the copies, but leave the original unstapled. Sacramento County Superior Court uses an electronic filing system in which documents are scanned in electronically. Stapled originals are not accepted because the staple will jam in the scanner, damaging both the document and the scanner.
It is expected that your motion will have at least one exhibit attached, a copy of the document you would have filed if you had responded to the lawsuit. A page in front of the exhibit identifying it as Exhibit A (or Exhibit B, or other exhibit letter, depending on how many exhibits you have and the order in which they are mentioned in your Declaration) is acceptable in the original that is being scanned, and in all of your copies but one. In one of your copies, you must replace this exhibit-identifying page with a sheet of cardstock (thick paper), with a rigid tab on the bottom (paper or plastic is acceptable) marked "Exhibit A" (or other exhibit letter). The copy with the tab is one of the copies that will be kept by the court, and the tab exists to allow the judge to quickly flip to the exhibit. If you forget this tab on one of the copies, the court clerk may reject your entire filing. Note: The Sacramento County Public Law Library sells card stock and exhibit tabs at the Circulation Desk for 25 cents each.
STEP 3: HAVE THE MOTION SERVED
The person who is serving your Motion for you must complete a proof of service form, typically, either a Proof of Personal Service form or a Proof of Service by First Class Mail form. For more information on these Proofs of Service, see the guides on our website at http://www.saclaw.org/pages/personal-service.aspx and http://www.saclaw.org/pages/pos-mail.aspx, respectively.
The proof of service form should be completely filled out, but not signed. Make a copy of the unsigned proof of service before proceeding.
The person over the age of 18 who is not a party to the case must then personally deliver or mail a copy of the Motion along with a copy of the unsigned proof of service form on other side's attorney (or the other side, if the other side does not have an attorney). The unsigned proof of service form can be attached as the last page of the Motion.
The person doing the serving then signs the Proof of Service form, and gives the signed Proof of Service to you.
STEP 4: COPY THE SIGNED PROOF OF SERVICE
Make three (3) copies of the signed Proof of Service. It is not necessary to copy the instruction page.
STEP 5: ASSEMBLE YOUR DOCUMENTS FOR FILING
Assemble your packet for filing as follows:
❑ Motion with all pages, plus three (3) copies. The original should be unstapled in Sacramento, while each copy is stapled. One of the three copies should have cardstock exhibit divider pages, with a tab or tabs at the bottom identifying the Exhibit(s). One of the exhibits should be a copy of the document you would have filed if you had responded to the lawsuit. See Step 2 above.
❑ Completed Proof of Service Form. The original plus three (3) copies. This proof of service can be attached as the last page of the Motion when filing. If this is the case, then the original Proof of Service should be attached to the original Motion, and the copies of the Proof of Service should be attached to the copies of the Motion.
STEP 6: FILING/FEES
File your motion and proof of service at the Law & Motion Civil Filing Window in Room 102 on the first floor of the Gordon D. Schraber Sacramento County Courthouse at 720 9th Street in downtown Sacramento.
If this is the first document that you have filed in this case, the court will assess a first appearance fee when you file your motion. This fee depends on the amount the plaintiff alleges is owed in the original Complaint. If the Complaint sought up to $10,000, the first appearance fee is (as of the date of this guide) $225. If the Complaint sought over $10,000, but not over $25,000, the first appearance fee is $370. Cases seeking over $25,000 have a first appearance fee of $435. If you have already paid this first appearance fee, the fee for filing a motion is $60. Current fees are available on the Sacramento County Superior Court's website, and are due at the time you file your motion unless you qualify for a waiver of your court fees. For more information on fee waivers, see the Step-by-Step guide on the topic on our website at http://www.saclaw.org/pages/fee-waiver.aspx.
STEP 6: OPPOSITION AND REPLY
If opposing counsel or the self-represented plaintiff opposes your request for a set aside, he or she may serve and file an "Opposition" at least nine court days prior to your motion date (CCP §1005(b)). Be sure to check your mail, and read any documents you receive carefully.
You may serve and file a reply to the plaintiff's Opposition (also written on pleading paper), at least five days prior to the motion (CCP §1005(b)). This reply should carefully address any points made by the Opposition, especially if that point was not originally addressed in your motion.
STEP 7: TENTATIVE RULINGS
Pursuant to Local Rule 1.06, the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online or may obtain the tentative ruling over the telephone by calling (916) 874-8142 to have a deputy clerk will read the ruling to you. For information on how to view the tentative ruling online, see the Legal Resource Guide on the topic on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.
Closely review the tentative ruling. Since you are asking the court for a set aside, you are looking for your motion to be "GRANTED." If the court does not grant your request, your motion will be "DENIED." Even if your request is granted, be sure to read the tentative ruling very carefully, since it will likely contain other important information such as if and when you need to serve and file your proposed Answer (or other response).
If you are happy with the tentative ruling, you do not need to do anything. You won't have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue why your set-aside motion should be granted.
If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must contact the clerk at (916) 874-7858 (Department 53) or (916) 874-7848 (Department 54) and all opposing counsel and/or self-represented parties before 4:00 p.m. the court day before the hearing to let each know that you are requesting oral argument on the motion. If you do not call the court and all opposing counsel and/or self-represented parties by 4:00 p.m. on the court day before the hearing, no hearing will be held. If neither you nor the opposing counsel or self-represented party requests oral argument, the court will simply make the tentative ruling the order of the court.
FOR MORE INFORMATION
On the Web:
For information about the Sacramento County Superior Court's motion requirements, visit http://www.saccourt.ca.gov/civil/motions-hearings-general.aspx.
At the Law Library:
For more details of the law and procedure, see:
California Civil Procedure Before Trial Vol. 2, Chap. 38. KFC 995 .C34
Electronic Access: On the law library computers, using OnLaw.
California Practice Guide: Civil Procedure Before Trial Vol. 1 Chap. 5. KFC 995 .W4
Electronic Access: On the law library computers, using WestlawNext.
California Forms of Pleading and Practice Vol. 43, Chap. 489. KFC 1010 .A65 C3
Electronic Access: On the law library computers, using the Matthew Bender CD.
California Civil Practice: Procedure Vol. 4, Chap. 29. KFC 995 .A65
Electronic Access: On the law library computers, using WestlawNext.
California Pretrial Civil Procedure Vol. 3, Chap. 36. KFC 995 .M38
California Points and Authorities KFC 1010 .B4 (Ready Ref)
Vol. 7, Chap. 70, "Defaults and Relief from Orders and Judgments: Statutory Remedies."
Electronic Access: On the law library computers, using the Matthew Bender CD.
Younger on California Motions KFC 1012 .C35
Chap. 26, "Motion to Set Aside Default or Dismissal."
Electronic Access: On the law library computers, using WestlawNext.
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DON'T HESITATE TO ASK A REFERENCE LIBRARIAN.
Notice of Motion and Motion (Page 1)
Notice of Motion and Motion (Page 2)
Memorandum of Points and Authorities (Page 3)
Memorandum of Points and Authorities (Page 4)
Memorandum of Points and Authorities (Page 5)
Memorandum of Points and Authorities (Page 6)
Memorandum of Points and Authorities (Page 7)
Memorandum of Points and Authorities (Page 8)
Declaration (Page 9)
Declaration (Page 10)
Declaration (Page 11)
Declaration (Page 12)
Proposed Answer (Exhibit A) (Page 13)