How to File a Motion to Set Aside an Order in California

To file a motion to set aside an order in California, you identify the statutory ground that fits your situation, prepare a motion packet built around a sworn declaration and a proposed responsive pleading, and file and serve the papers within the deadline the statute imposes. The most common ground, Code of Civil Procedure section 473(b), carries a hard six-month limit that no judge can extend.¹ Miss the window and your only remaining route is an equitable claim that courts rarely grant.

Pick the Ground That Fits Your Situation

The ground you choose sets your deadline, your evidence, and whether the judge has any discretion to say no. California recognizes four statutory paths plus one narrow equitable doctrine.

Mistake, Inadvertence, Surprise, or Excusable Neglect

CCP § 473(b) lets the court set aside a judgment, dismissal, or order that resulted from your own honest mistake, surprise, or excusable failure to act.¹ The court asks whether a reasonably careful person in your circumstances could have made the same error. A serious illness or genuine confusion caused by misleading information usually qualifies. Not knowing you had to respond, or waiting until it was too late, usually does not. Because the relief is discretionary, a thin or vague explanation gets denied.

Mandatory Relief for Attorney Fault

The same statute contains a separate mandatory provision. If a default, default judgment, or dismissal happened because of your attorney’s mistake or neglect, and your attorney submits a sworn statement admitting fault, the court must vacate the ruling unless it finds the default was not actually caused by the attorney’s error. The tradeoff: the court orders the attorney to pay the other side’s reasonable fees and costs caused by the default, but you get your case back regardless of whether the attorney has paid.¹

Lack of Actual Notice

Sometimes a lawsuit is served in a way the law treats as valid, but the defendant never actually learns about it. CCP § 473.5 provides relief when a default or default judgment was entered against you and you had no real knowledge of the case in time to respond.² You’ll need a sworn statement showing your lack of notice was not the result of ducking service or ignoring your mail.

Void Judgment

A judgment is void when the court lacked authority to enter it, typically because you were never properly served, the court had no jurisdiction over you, or the judgment exceeds what the law allows. Under CCP § 473(d), the court can set aside a void judgment on motion or on its own.¹ No statutory deadline applies, though unreasonable delay after discovering the defect can still cost you the motion.

Equitable Relief After Deadlines Expire

If the six-month window under CCP § 473(b) has passed, California courts retain inherent power to set aside a judgment obtained through extrinsic fraud or extrinsic mistake. You must show a meritorious case or defense, a satisfactory excuse for not defending the original action, and diligence in seeking relief once you learned of the judgment.³ Courts grant this relief only in exceptional cases.

Deadlines You Cannot Miss

Filing even one day late strips the court of authority to help you.

CCP § 473(b), discretionary and mandatory: within a reasonable time, and no more than six months after the judgment, dismissal, or order was entered. For cases involving ownership or possession of property, the period can shrink to 90 days if you receive written notice of that shortened deadline.¹
CCP § 473.5, lack of actual notice: within a reasonable time, no later than the earlier of two years after entry of the default judgment or 180 days after you were served with written notice that the default or default judgment exists.²
CCP § 473(d), void judgment: no fixed deadline, but courts weigh how long you waited after discovering the defect.
Equitable relief: governed by laches, so unreasonable delay after learning of the judgment can bar the claim even without a hard calendar date.³

The “reasonable time” language still bites inside the six-month window. Waiting five months to file when you learned of the default in month one invites scrutiny. Move as quickly as you can once you know.

Assemble the Motion Packet

A motion to set aside is a set of documents that work together. Missing any one of them gives the judge a clean procedural reason to deny.

Notice of Motion

The notice tells the court and the other side what you’re asking for, which legal ground you rely on, and when the hearing is scheduled. General civil cases have no single mandatory Judicial Council form for the notice itself; draft one or check whether your local court publishes a template. Family law cases use the Request for Order, form FL-300, instead.⁴

Supporting Declaration

The declaration is the heart of the motion, a sworn statement under penalty of perjury explaining the facts that justify relief. You can use the Judicial Council Declaration form MC-030 or draft your own to the same standard.⁵ It has to do three things: explain specifically what went wrong, explain why the problem was not your fault or was at least excusable, and show that you acted promptly once you learned of the ruling. Vague statements like “I didn’t know about the case” without explaining why will sink the motion. Include dates, names, and concrete facts.

If you’re seeking mandatory relief for attorney fault, your lawyer files a separate sworn admission. Your own declaration should still tell the story from your side.

Memorandum of Points and Authorities

California Rule of Court 3.1113 requires every motion to include a memorandum of points and authorities, essentially a legal brief walking the judge through the statutes and cases that support your position. A missing memorandum can be treated as an admission that the motion lacks merit. The memorandum must include a statement of facts, a discussion of the law, and citations. It cannot exceed 15 pages, and anything over 10 pages must include a table of contents and table of authorities.⁶

Proposed Responsive Pleading

Attach the answer or other pleading you plan to file if the court grants your motion. Under CCP § 473(b), the application “shall not be granted” without it, and CCP § 473.5 imposes the same requirement.¹² The proposed pleading shows the court you actually have a defense worth hearing. A weak or generic answer undercuts the argument that setting aside the default serves the interests of justice.

File, Pay, Serve, and Schedule

Filing and Fees

File the complete packet with the court clerk. The filing fee for a noticed motion in California civil court is $60 as of 2026.⁷ If you cannot afford the fee, request a waiver by filing form FW-001. You’ll need to show that you receive certain public benefits, that your household income falls below a set threshold, or that paying court fees would prevent you from meeting basic needs.⁸

Service and Timing

The motion papers must be served and filed at least 16 court days before the hearing. Court days exclude weekends and judicial holidays, so 16 court days typically works out to roughly three calendar weeks. Mailing within California adds five calendar days. Mailing to an address outside California but within the United States adds 10 calendar days. Overnight delivery or fax adds two calendar days.⁹

Service must be done by someone at least 18 years old who is not a party. That person completes a proof of service and files it with the court. Without a filed proof of service, the court may refuse to hear the motion.

Opposition and Reply

The other side has until nine court days before the hearing to file and serve opposition. You have until five court days before the hearing to file a reply.⁹ Read any opposition carefully. If it raises facts you didn’t anticipate, your reply is your only chance to address them before the judge decides.

At the Hearing

The judge reviews your declaration, memorandum, and proposed pleading alongside any opposition. Most of the decision turns on the papers, not on oral argument, so the written materials do the heavy lifting. The court can grant the motion, deny it, or grant it with conditions such as ordering you to pay the other side’s fees caused by the default. If the motion is granted, the adverse order is vacated, your proposed pleading is deemed filed, and the case moves forward as though the default never happened.

Small Claims Cases Use a Different Form

Small claims follows a separate, simpler process. If a judgment was entered against you in small claims court, you file a Notice of Motion to Vacate Judgment and Declaration, form SC-135, within 30 days of the date the judge’s decision was mailed. If the problem is improper service, you have 180 days from when you learned or should have learned about the judgment. The filing fee is $20, and fee waivers are available.¹⁰ Once you file, the clerk sets the hearing and mails the form to the other side, so you don’t arrange service yourself.

If the Judge Denies Your Motion

Denial is not always the end. If your motion was denied because of a fixable defect, such as a missing proposed answer or an inadequate declaration, you can refile a corrected version as long as you remain within the applicable deadline. You may also be able to appeal the underlying default judgment, and a timely motion to vacate can extend the deadline for filing a notice of appeal. Once every statutory deadline has passed, equitable relief remains available, though courts grant it sparingly.

For orders that aren’t final judgments, review may run through a writ petition to the Court of Appeal, a faster but more demanding procedure than a standard appeal. Whether your next step is a new motion, an appeal, or a writ depends on timing, the type of order involved, and the reason the court denied relief.

1
California Legislative Information. California Code of Civil Procedure Section 473
2
California Legislative Information. California Code of Civil Procedure Section 473.5
3
Justia Law. Rappleyea v Campbell
4
California Courts. Request for Order FL-300
5
Judicial Branch of California. Declaration MC-030
6
California Courts. Rule 3.1113 Memorandum
7
Judicial Council of California. Superior Court of California Statewide Civil Fee Schedule
8
California Courts. Ask for a Fee Waiver
9
California Legislative Information. California Code of Civil Procedure Section 1005
10
California Courts. Ask to Cancel (Vacate) the Judges Decision