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Sample California motion to vacate default judgment for extrinsic fraud or mistake

This sample motion to vacate a California default judgment on the grounds of extrinsic fraud or mistake is made under the inherent equitable power of a California Court to vacate a judgment obtained through extrinsic fraud or mistake. This is a preview of the sample motion sold by LegalDocsPro.

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1SAMPLE ATTORNEY
155 ANY STREET
ANYTOWN, CA 55555
(555) 555-5555
Attorney for 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;
) MEMORANDUM OF POINTS AND
SAMPLE DEFENDANTS, ) 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 this notice before using this document.
1 TO PLAINTIFF ___________________________________ AND THEIR ATTORNEYS OF
RECORD:
- 1 -
NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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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
____________________________________________, 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 granting her leave to file her Proposed
Answer, a copy of which is attached as Exhibit "A" to the Declaration of ______________________.
The Motion will be made under the inherent equitable power of the Court on the grounds that
the default and judgment were obtained through extrinsic fraud or mistake 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
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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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 that the default and judgment were obtained through extrinsic fraud or
mistake in that __________________________________________________________.
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 the default
and judgment were obtained through extrinsic fraud or mistake.
You need to state the facts that pertain to your particular
situation. You need to show the reasons why you did not file an Answer
to the complaint such as you were misled, were disabled, etc.
- 3 -
NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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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.
Defendant denies all of the allegations of Plaintiff's complaint and contends that she is
not responsible for Plaintiff's damages. Defendant has prepared a Proposed Answer, a copy of
which is attached as Exhibit "A" to the Declaration of __________________________, attached
hereto and incorporated herein by reference.
II.
LEGAL ARGUMENT
A. THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT AND DEFAULT
JUDGMENT THAT WERE ENTERED AGAINST THE DEFENDANT AS THEY
WERE OBTAINED THROUGH EXTRINSIC FRAUD OR MISTAKE
Several decisions of the California Supreme Court have made it clear that, 1 “A trial court has
an inherent equity power under which, apart from statutory authority, it may grant relief from a
default judgment obtained through extrinsic fraud or mistake. While the grounds for an equitable
action to set aside a default judgment are commonly stated as being those of extrinsic fraud or
mistake, the terms are given a very broad meaning which tends to encompass all circumstances that
deprive an adversary of fair notice of hearing whether or not those circumstances would qualify as
fraudulent or mistaken in the strict sense. Thus a false recital of service although not deliberate is
treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default
judgment. Bennett v. Hibernia Bank, (1956) 47 Cal.2d 540, 558, See also Carroll v. Abbott
Laboratories (1982) 32 Cal. 3d 892, 901-902, and Weitz v. Yankosky (1966) 63 Cal. 2d 849, 855.
1
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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To purchase the entire document on which this preview is based
visit: http://www.scribd.com/doc/140373175/Sample-Motion-to-
Vacate-Default-Judgment-for-Extrinsic-Fraud-or-Mistake-in-
California
To view collections of documents for sale by LegalDocsPro visit
http://www.scribd.com/LegalDocsPro/collections
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NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
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To purchase the entire document on which this preview is based
visit: http://www.scribd.com/doc/140373175/Sample-Motion-to-
Vacate-Default-Judgment-for-Extrinsic-Fraud-or-Mistake-in-
California
To view collections of documents for sale by LegalDocsPro visit
http://www.scribd.com/LegalDocsPro/collections
- 5 -
NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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Sample California motion to vacate default judgment for extrinsic fraud or mistake

  • 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 1SAMPLE ATTORNEY 155 ANY STREET ANYTOWN, CA 55555 (555) 555-5555 Attorney for 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; ) MEMORANDUM OF POINTS AND SAMPLE DEFENDANTS, ) 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 this notice 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 ____________________________________________, 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 granting her leave to file her Proposed Answer, a copy of which is attached as Exhibit "A" to the Declaration of ______________________. The Motion will be made under the inherent equitable power of the Court on the grounds that the default and judgment were obtained through extrinsic fraud or mistake 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 that the default and judgment were obtained through extrinsic fraud or mistake in that __________________________________________________________. 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 the default and judgment were obtained through extrinsic fraud or mistake. You need to state the facts that pertain to your particular situation. You need to show the reasons why you did not file an Answer to the complaint such as you were misled, were disabled, etc. - 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. Defendant denies all of the allegations of Plaintiff's complaint and contends that she is not responsible for Plaintiff's damages. Defendant has prepared a Proposed Answer, a copy of which is attached as Exhibit "A" to the Declaration of __________________________, attached hereto and incorporated herein by reference. II. LEGAL ARGUMENT A. THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT AND DEFAULT JUDGMENT THAT WERE ENTERED AGAINST THE DEFENDANT AS THEY WERE OBTAINED THROUGH EXTRINSIC FRAUD OR MISTAKE Several decisions of the California Supreme Court have made it clear that, 1 “A trial court has an inherent equity power under which, apart from statutory authority, it may grant relief from a default judgment obtained through extrinsic fraud or mistake. While the grounds for an equitable action to set aside a default judgment are commonly stated as being those of extrinsic fraud or mistake, the terms are given a very broad meaning which tends to encompass all circumstances that deprive an adversary of fair notice of hearing whether or not those circumstances would qualify as fraudulent or mistaken in the strict sense. Thus a false recital of service although not deliberate is treated as extrinsic fraud or mistake in the context of an equitable action to set aside a default judgment. Bennett v. Hibernia Bank, (1956) 47 Cal.2d 540, 558, See also Carroll v. Abbott Laboratories (1982) 32 Cal. 3d 892, 901-902, and Weitz v. Yankosky (1966) 63 Cal. 2d 849, 855. 1 - 4 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  • 5. 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 To purchase the entire document on which this preview is based visit: http://www.scribd.com/doc/140373175/Sample-Motion-to- Vacate-Default-Judgment-for-Extrinsic-Fraud-or-Mistake-in- California To view collections of documents for sale by LegalDocsPro visit http://www.scribd.com/LegalDocsPro/collections - 5 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  • 6. 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 To purchase the entire document on which this preview is based visit: http://www.scribd.com/doc/140373175/Sample-Motion-to- Vacate-Default-Judgment-for-Extrinsic-Fraud-or-Mistake-in- California To view collections of documents for sale by LegalDocsPro visit http://www.scribd.com/LegalDocsPro/collections - 5 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT