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Sample California motion to vacate default judgment under Code of Civl Procedure section 473.5

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This sample motion to vacate a default judgment in California on the grounds of lack of actual notice in time to defend the action is made pursuant to Section 473.5 of the Code of Civil Procedure. The sample contains a memorandum of points and authorities with citations to case law and statutory authority. This is a preview of the sample motion sold by LegalDocsPro.

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Sample California motion to vacate default judgment under Code of Civl Procedure section 473.5

  1. 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 OR PARTY 155 ANY STREET ANYTOWN, CA 55555 (909) 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://freeweeklylegalnewsletter.gr8.com/ and enter your e-mail address. - 1 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  2. 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 To view sample legal document packages sold by LegalDocsPro visit: http://www.legaldocspro.com/downloads.aspx Be sure to remove this notice and all other notices before using this document. TO PLAINTIFF ___________________________________ AND THEIR ATTORNEYS OF RECORD: 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 move the Court to set aside the Default that was entered against them on ___________________ , the Judgment that was entered against them on ________, and granting them leave to file their Proposed Answer, a copy of which is attached as Exhibit "A" to the Declaration of ______________________. The Motion will be made under the provisions of Code of Civil Procedure Section 473.5 on the ground that the Default and Default Judgment were taken as a result of Defendant's lack of actual notice in time to defend the action 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 hereto, 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. 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 he was not personally served with the summons and complaint and had no knowledge that he was even being sued until someone at the office where he works gave him a copy of the summons and complaint sometime in _____________. You need to state the facts that pertain to your particular situation such as paperwork was left with someone at your residence who did not give it to you until much later, etc. You need to show the reasons why you did not get a copy of the summons and complaint. Defendant then called the attorney for Plaintiffs and spoke with him regarding the lawsuit. He was told "we will see you in Court on ______________." When Defendant went to Court on that date he was told that there was no hearing or trial scheduled for that day. Defendant did not know that a Judgment had been entered against him until he received a copy of an Abstract of Judgment in the mail sometime in _____________. See the Declaration of _______________________ attached hereto and incorporated herein by reference. - 3 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  4. 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 he 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 DEFENDANTS Code of Civil Procedure Section 473.5 states in pertinent part: "When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (I) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.", and "Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the - 4 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  5. 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 action." To purchase the entire sample document on which this preview is based visit: http://www.scribd.com/doc/25742413/Sample-Motion-to- Vacate-Judgment-Under-CCP-Section-473-5-for-California - 5 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT
  6. 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 action." To purchase the entire sample document on which this preview is based visit: http://www.scribd.com/doc/25742413/Sample-Motion-to- Vacate-Judgment-Under-CCP-Section-473-5-for-California - 5 - NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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