A civil lawsuit is supposed represent an opportunity for an aggrieved party to seek justice in a straightforward manner that provides a Defendant ample opportunity to make their case and present their defenses. Yet sometimes a civil Plaintiff can “win” a lawsuit by default, due to the Defendant’s lack of action. Sometimes this lack of action is due to that Defendant’s own failure, but often it occurs because Defendant simply had no knowledge that a suit was filed against them. In some situations, it is possible to set aside the default to avoid this unfavorable outcome.
What is a Default Judgement?
A default judgment is where a Plaintiff serves a summons and complaint on a Defendant, and after the Defendant fails to respond to the summons and complaint, the Plaintiffs asks the Court to enter a judgment in the Plaintiff’s favor.
How can you Overturn a Default Judgment?
Most of the grounds to overturn a default judgment are available for six months following the entry. Under California Code of Civil Procedure Section §473(b) a judgment may be overturned for surprise, mistake, or excusable neglect within a reasonable amount of time not to exceed six months after entry of judgment . Examples of surprise, mistake, or excusable neglect include disabling illnesses or reliance on an attorney that failed to take action. Simply forgetting to respond to the lawsuit, or failing to find an attorney in time to respond to the lawsuit, does not count as excusable neglect. If you become aware of a default judgment against you, be sure to contact an attorney immediately.
How can you Overturn a Default Judgment After Six (6) Months Has Passed From the Entry of Judgment
If more than six (6) months has passed since the Default Judgment has been entered against you, you may still be able to set it aside per California Code of Civil Procedure Section §473.5 if you had no actual notice of the lawsuit. This means that, if a default judgment is entered against you, but you had no idea that the lawsuit existed, you may be able to set that default judgment aside. A Motion to Set Aside a Default Judgment has to be filed with a reasonable amount of time after the entry of the default judgment, but cannot exceed two years from the time of the entry of judgment , or 120 days after you are served with a written notice of entry of judgment, whichever is sooner.
There is no set definition for a “reasonable amount of time” based on this code section, so Courts have discretion to determine on a case by case basis whether a party was diligent in pursuing relief. If you become aware of a default judgment entered against you, be sure to contact an attorney immediately.
Can I Set Aside a Default Judgment if I was Never Served?
Sometimes default judgments are entered against parties that were not properly served with a summons and complaint, or the default judgment itself is defective “on its face.” A party can set aside default judgments that fall into these categories at any time per California Code of Civil Procedure Section 473(d) or by introducing proof of fraud or extrinsic mistake that prevented the Defendant from defending themselves in the action. While neither of these methods of setting aside a default judgment have hard deadlines, they are required to be raised within a reasonable amount of time. If you believe an improper default judgment has been entered against you, consult with an attorney immediately to ensure that diligent relief is pursued.