Q. I was on a year-long trip to Costa Rica, and when I came back I found that a “default judgment” had been entered against me in Sacramento County Superior Court. It says I owe $25,000 to this guy who did some work for me in 2006! What is a “default judgment” and how do I fight it? I want my day in court!
A. 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. California Code of Civil Procedure (CCP) sections 473(b), 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)); Party not given “actual notice” in time to defend (CCP 473.5); and Void Judgments (CCP 473(d)). It is possible that you may granted relief under any or all of these sections: You were in Costa Rica, so the Inadvertence, Surprise, Mistake, or Excusable Neglect section may apply. You may also not have received “actual notice” in time to respond. It is also possible that the plaintiff’s claim may be barred by the statute of limitations, and therefore void. You need to research these code sections very carefully, and the appicable statute(s) of limitation(s) and apply them to the facts of you situation.
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; Motion; Points and Authorities; and Declaration. Luckily, the Sacramento County Public Law Library has created a Step-by-Step Guide to Setting Aside a Default Judgment, complete with step-by-step instructions and sample forms that you may use for guidance in completing our down-loadable template, available on our website at http://www.saclaw.org/pages/motion-relief-default.aspx . There are very tricky requirements for choosing the date to hear your motion in time to meet both service and filing deadlines, so read the Step-by-Step very carefully before starting to fill out the forms!
When you file your motion, which must include a copy of your proposed responsive pleading (most likely an Answer, see “Responding to a Lawsuit” on our website at http://www.saclaw.org/pages/responding-lawsuit.aspx) attached as an exhibit, you must pay a first appearance fee of $435. The plaintiff may file an opposition to your motion, and you may file an opposition to his opposition. You should be sure to check the Court’s website the day before the scheduled hearing because the Court will make a “Tentative Ruling” that will become the order of the court if you or the plaintiff don’t contact the court and all other parties (and their attorneys, if any) to ask for an actual hearing on your motion to be held before the judge. For more information on Tentative Rulings, see the Legal Resource Guide on the topic on our website at http://www.saclaw.org/pages/tentative-rulings.aspx .
I hope this helps, and that you had a great time in Costa Rica!
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