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Sample motion to vacate judgment and quash service for California

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This sample motion to vacate judgment and quash service for California is made under sections 418.10(d) and 473(d) of the Code of Civil Procedure. The grounds for the motion are that California law …

This sample motion to vacate judgment and quash service for California is made under sections 418.10(d) and 473(d) of the Code of Civil Procedure. The grounds for the motion are that California law allows a motion to vacate to be joined with a motion to quash. The motion on which this preview is based is 11 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and a proof of service by mail.

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  • 1. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any Attorney or Party 555 Any Street Any Town, CA 55555 (555) 555-5555 Any Attorney or Specially Appearing Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF _______________ SAMPLE PLAINTIFF, ) CASE NO. ) Plaintiff, ) NOTICE OF MOTION AND MOTION ) TO VACATE DEFAULT AND v. ) DEFAULT JUDGMENT AND QUASH; ) SERVICE OF SUMMONS; SAMPLE DEFENDANTS, ) MEMORANDUM OF POINTS AND ) AUTHORITIES; DECLARATION OF Defendants. ) _____________________; EXHIBITS ) ) DATE: ) TIME: ) DEPT: ) ____________________________________) To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your e-mail address. Be sure to remove these notices before using this document. 1 TO PLAINTIFF ___________________________________ AND THEIR ATTORNEYS OF RECORD: - 1 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  • 2. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLEASE TAKE NOTICE THAT on _____________________, at ________, or as soon after that as the matter can be heard, in Dept. _______of the above-entitled Court located at ____________________________________________, specially appearing Defendant, ____________________ will and does move the Court to set aside the Default that was entered against her on ___________________ , the Judgment that was entered against her on ________, and quashing service of summons on her The Motion will be made under Code of Civil Procedure §§ 418.10(d) and 473(d) on the grounds that the default and judgment are void as the Court lacked jurisdiction over Defendant due to the fact that they were never validly served as more fully set forth in the Declaration of ____________________, and the Exhibits attached thereto, attached hereto and incorporated herein by reference. The Motion shall be based upon this notice, the attached Points and Authorities in support thereof, the files and records of this case, and the Declaration of __________________, and the Exhibits attached thereto, attached hereto, and on such other and further oral and/or documentary evidence as may be presented at the hearing on this Motion. Dated________________ _______________________________________________ ANY ATTORNEY OR PARTY - 2 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  • 3. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS Plaintiffs filed suit against Defendants on or about ___________ alleging: Add some brief facts regarding the lawsuit such as breach of contract, etc. See Plaintiffs complaint on file. Default was entered against Defendant on _______________. A Default Judgment was entered against Defendant on _______________. Put in the dates for each one, you can get the dates from the Court clerk. Defendant contends the default and judgment are void as the Court lacked jurisdiction over them as they were never validly served and that this Court has the power to hear both her motion to vacate default and default judgment joined with her motion to quash service. See the Declaration of _______________________ and Exhibits attached thereto filed and served concurrently and incorporated herein by reference. Be sure to provide some very specific facts as to why you were not validly served such as you never lived at that address, you moved out years ago, etc. You need to state the facts that pertain to your particular situation. You need to show the reasons why the alleged service on you was not valid. - 3 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  • 4. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 You need to state the facts as to exactly when you found out a Judgment or Default had been entered against you. Do not just use the wording from this sample for this paragraph. II. LEGAL ARGUMENT A. THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT THAT WERE ENTERED AGAINST THE DEFENDANT ON THE GROUNDS THAT THEY ARE VOID AS THE COURT LACKED JURISDCTION OVER THE DEFENDANT AS THEY WERE NOT VALIDLY SERVED Code of Civil Procedure section 473, subdivision (d) states that, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order." A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons. Neumann v. Melgar (2004) 121 Cal.App.4th 152, 164. To purchase and download the entire sample document visit: http://www.scribd.com/doc/163910238/Sample-Motion-to-Vacate- Judgment-and-Quash-Service-for-California - 4 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT