The California Motion Set Aside form is a legal document used to request the court to nullify a default judgment against a defendant. This motion can be filed under specific circumstances, such as mistake, inadvertence, or excusable neglect, and must be submitted within six months of the judgment. Understanding how to properly complete and submit this form is crucial for defendants seeking to have their case reconsidered.
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In the realm of California civil procedure, the Motion Set Aside form plays a crucial role for defendants who find themselves facing a default judgment. This form allows individuals to request that the court nullify a default judgment entered against them, enabling them to present their case and defend their rights. The process is governed by California Code of Civil Procedure Section 473, which provides specific grounds for relief, such as mistake, inadvertence, surprise, or excusable neglect. Within the form, defendants must specify the reasons for their failure to respond to the initial complaint and submit a declaration outlining the circumstances that led to their default. Importantly, the motion must be filed within six months of the judgment to be considered valid. The policy underlying this procedure emphasizes the importance of having cases decided on their merits rather than allowing parties to benefit from the mistakes of others. As such, the court is inclined to favor granting relief in situations where there is a reasonable explanation for the default. Understanding the nuances of this form can empower defendants to take proactive steps in reclaiming their legal standing.
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_______________________________
In Pro Per
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
________________________________,
)
Case No.: ____________________
Plaintiff,
NOTICE OF MOTION AND MOTION TO
) SET ASIDE DEFAULT AND DEFAULT
vs.
JUDGMENT, MEMORANDUM OF
) POINTS AND AUTHORITIES AND
DECLARATION OF DEFENDANT
Defendant
Hearing Date: _______________
Dep’t: _________
) Judge: Neal A. Cabrinha
To Plaintiff:
PLEASE TAKE NOTICE that on _______________ at ____________ in Department
_____, of the above entitled court, located at 191 North First Street, San Jose CA 95113, before
the Honorable Neal A. Cabrinha, defendant will move to set aside the default and any judgment thereon taken against defendant.
This Motion is made pursuant to CCP § 473 and is based on one or more of the following grounds:
1. SET ASIDE DEFAULT JUDGMENT WITHIN SIX MONTHS BASED ON:
□MISTAKE
□INADVERTENCE
□SURPRISE
□EXCUSABLE NEGLECT
NOTICE OF MOTION, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION - 1
This Motion is based on the Memorandum of Points and Authorities and the Declaration of
________________________ which follow, and on all of the pleadings, records, and files in this
action.
Dated:
By:
MEMORANDUM OF POINTS AND AUTHORITIES
Code of Civil Procedure Section 473 (b) states in relevant part:
The court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, . . .
and shall be made within a reasonable time, in no case exceeding six months, after the judgment, order or proceeding was taken.
In the present case, defendant did not file a timely response to the complaint for the
reasons stated in the attached declaration. The policy of the law is to have every case tried on its
merits and that policy views with disfavor a party who, regardless of the merits, attempts to take
advantage of the mistake, inadvertence, or neglect of his adversary. This policy is so strong that
“any doubts in applying section 473 must be resolved in favor of the party seeking relief from
default.” Elston v. City of Turlock (1985) 38 Cal.3d 227, 233; Slusher v. Durrer (1977) 69 Cal.
App. 3d 747, 753.
For the reasons stated in this Memorandum and in the attached Declaration, the
court should set aside the default and any judgment thereon taken against defendant.
NOTICE OF MOTION, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION - 2
I, _______________________________, declare:
I am the Defendant in this action. I have personal knowledge of the matters discussed below and, if called as a witness, I could competently testify to them. I did not file a timely response to
the complaint in this action for the following reason(s):
______________________________________________________________________________
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Dated:By:
NOTICE OF MOTION, MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION - 3
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