Personal Injury, Probate, Employment, & Complex Litigation


Setting Aside a Default Judgment

What happens when you don’t answer a lawsuit in a timely fashion? A default judgment is entered in against you. A default judgment is similar to the concept of a forfeit in sports. Essentially, the court sees your non-answer as an admission to the merits of the case and therefore finds against you.

While that is how that court interprets your non-answer, that is not actually why a court will enter a default judgment against you. The actual reason is because there is a public policy concern of effectiveness and adherence of the rules of civil procedure. You have a statutorily dictated period of 30 days to answer a complaint after service has been perfected (petitions and objections in probate court have a different rule). If there were no repercussion for failing to answer a complaint during the statutorily mandated period, then no one would answer timely. Similarly, if default judgments were not regularly awarded then it is unlikely that the defendant would take that threat seriously (you can see this play out in discovery activities as most parties do not provide code compliant responses because courts so rarely actually impose the mandated sanctions against the offending party). As a result, the court’s hands are tied and will issue the default, even though the court knows you are likely not actually admitting to the merits of the complaint.

And just like the court, the legislature knows that just because you are delayed in filing an answer doesn’t mean that you want to concede the case, and as a result there is procedure available to set aside a default judgment, but only in certain circumstances.

If you fail to timely answer a complaint due to a mistake, inadvertence, surprise, or excusable neglect then you can file a motion to set aside the default judgment (Code of Civil Procedure section 473(b)). However, you must file the motion must be made within a reasonable time that does not exceed six months—although depending on the type of case, the timeline can be shorter. And even if you did not file a timely answer to the complaint due to a mistake, it is still in the court’s discretion whether to relieve you from the default judgment. In other words, once the judgment is entered, you must then rely upon the good graces of the court to allow you to still answer the complaint (most of the time the court will oblige, but you don’t want to be the person that has their motion heard on a judge’s bad day).  

All of this analysis of course assumes that the plaintiff properly served you with notice and summons. However, there are occasions when the plaintiff fails to do so—the most common culprit is neglecting to review proper procedure, not actual malice—and when that occurs then the time limit to set aside the judgment does not exist because “a judgment entered without notice or service is constitutionally infirm.” (Peralta v. Heights Medical Center, Inc. (1988) 485 US 80). If this situation were to apply to you, then you can file a motion based upon Code of Civil Procedure section 473(d) to set aside the void judgment.

So we have covered the procedure to overturn a default judgment if the notice and summons were properly served, we have discussed what to do if there is a faulty default judgment ordered, but what if the notice and summons were properly served, but you did not have actual notice of the proceeding? Again, it depends on the situation. Pursuant to Code of Civil Procedure section 473.5, as long as you did not receive actual notice in time to submit an answer, and that actual notice was not due to your own avoidance or inexcusable neglect, the court can set aside the default judgment if you file the motion in a timely fashion (note: depending on other facts in your case, this motion has a maximum period of anywhere from 180 days or 2 years but in every case must be filed within a reasonable time). Once again, trying to set aside the judgment this way is playing with fire, because even if the court agrees with you on all elements, they can still deny relief.

As with all legal proceedings, but especially with one as technical as this one, it is best to contact an attorney to help you if a default judgment has been entered against you.