How to Oppose a Motion to Set Aside Default Judgment in CA

To oppose a motion to set aside a default judgment in California, attack it on two fronts at once: the procedural defects in the moving papers (a missed deadline, a missing proposed answer, a thin declaration) and the factual weakness of the defendant’s excuse (they knew about the lawsuit, service was proper, they delayed after learning about the judgment). Your written opposition needs to identify the exact statute the defendant is relying on, show why they fail its requirements, and be filed and served on time. Judges lean toward giving defendants a second chance, so concrete evidence beats general argument every time.

Start by Identifying Which Statute the Defendant Is Using

Everything in your opposition depends on this. California gives defendants four separate routes to vacate a default judgment, and each has different standards, different deadlines, and different weak points.

The four possibilities:

Discretionary relief under CCP Section 473(b) for the defendant’s own mistake, inadvertence, surprise, or excusable neglect.¹
Mandatory attorney-fault relief under CCP Section 473(b), where the defendant’s lawyer submits a sworn affidavit taking blame.¹
Lack of actual notice under CCP Section 473.5, typically raised where service was substitute rather than personal.²
Void judgment under CCP Section 473(d), usually based on defective service or lack of jurisdiction.¹

Read the motion carefully. If the defendant cites the wrong statute, or tries to squeeze facts that fit one section into the framework of another, that mismatch is your first argument.

Check the Deadline First

A late motion can end the fight before it starts.

Under Section 473(b), whether the defendant is asking for discretionary relief or mandatory attorney-fault relief, the motion must be filed within a reasonable time and in no case more than six months after entry of the judgment.¹ Under Section 473.5, the motion must be filed within a reasonable time and no later than two years after entry of the default judgment or 180 days after written notice that the default was entered, whichever comes first.² A void judgment motion under Section 473(d) has no statutory deadline.

The “reasonable time” language matters even when the defendant is inside the outer deadline. Someone who learned about the judgment in month one and filed in month five may have technically beaten the six-month cutoff, but a court can still find the delay unreasonable. If you can show the defendant knew about the judgment and sat on it, put that timeline front and center in your opposition, with dates and evidence.

Check for a Proposed Answer

This is one of the cleanest ways to defeat a motion under Section 473(b) or Section 473.5. Both statutes require the defendant to attach the answer or responsive pleading they propose to file if relief is granted. Section 473(b) is blunt: without a proposed answer, “the application shall not be granted.”¹ Section 473.5 also requires a proposed responsive pleading to be served and filed.²

If it’s missing, say so. If it’s attached but reads like boilerplate denials with no real defense, argue that the defendant has nothing meaningful to add to the case and is only trying to delay collection.

Attack the Excuse Itself

Once the procedural checks are done, take on the substance. Your approach depends on which statute the defendant invoked.

Discretionary Relief (Section 473(b))

The defendant carries the burden of showing their failure to respond was reasonable, not just that they had a reason. Your opposition should show the conduct was unreasonable or that the defendant knew about the lawsuit and did nothing. If they claim they misunderstood the papers, argue a reasonable person would have sought help. If they say they forgot, produce evidence they were aware: prior communications about the dispute, proof of proper service, contact with you or your attorney.

Mandatory Attorney-Fault Relief (Section 473(b))

When the defendant’s attorney submits a sworn affidavit accepting blame, the statute uses “shall,” which leaves the judge little room to deny. Your opening is narrow but real: argue that the default was not actually caused by the attorney’s mistake. If the record suggests the client ignored the case and the attorney is falling on the sword after the fact, make that argument with the facts that support it.

If the court grants mandatory relief anyway, the statute directs the attorney to pay you reasonable compensatory legal fees and costs.¹ Ask for those fees in your opposition and again at the hearing.

Lack of Actual Notice (Section 473.5)

The defendant must file an affidavit stating under oath that lack of notice was not caused by avoidance of service or inexcusable neglect. Attack the credibility of that claim. If the process server’s declaration describes the defendant answering the door, or if you have evidence the defendant mentioned the lawsuit to a third party, that contradicts the story. Evidence of avoidance also disqualifies them from relief under this section.

Void Judgment (Section 473(d))

A judgment is void, and vulnerable to attack at any time, if the court lacked jurisdiction, usually because service was fundamentally defective, such as serving the wrong person or skipping required steps for substitute service. Your defense is your proof of service. Walk through the process server’s declaration and show that every procedural requirement for the type of service used was met. Technical imperfection is not the same as fundamental defect, and that distinction is often what decides these motions.

The Policy Working Against You

California courts have a strong preference for deciding cases on the merits rather than by default, and appellate courts have repeatedly said doubts should be resolved in favor of the party seeking relief. That tilt is real, and pretending it isn’t will make your opposition weaker.

What it means in practice: vague arguments that the defendant “should have responded” rarely win. Concrete evidence does. A dated timeline showing the defendant knew about the case, a proof of service that matches every statutory requirement, a proposed answer that raises no real defense — these give a judge cover to deny the motion even under a policy that favors second chances.

What Goes in Your Opposition Packet

Three documents, each with a job.

The opposition brief is your legal argument. Identify the statute the defendant is relying on, explain why they fail its requirements, and address the facts point by point. Lead with procedural knockouts — a missed deadline, a missing proposed answer — then move to the substance of the excuse.

Your declaration is a sworn statement of facts, signed under penalty of perjury. This is where the evidence lives: dates of service, communications showing the defendant knew about the lawsuit, a timeline that undercuts their story. Attach exhibits: the proof of service, emails or letters, phone records, anything that shows notice and inaction.

A proposed order denying the motion is short and simple. Some courts require it. Even where it isn’t required, including it helps the judge and reads as competent practice.

Filing and Serving on Time

Your opposition must be filed with the court and served on the defendant or their attorney at least nine court days before the hearing.³ Court days exclude weekends and court holidays. Count carefully. Miss this and the court can disregard your papers entirely.

Service of opposition papers must be by personal delivery, fax, express mail, or another method reasonably calculated to reach the other side by the close of the next business day after filing.³ Ordinary first-class mail doesn’t satisfy that standard. The five-day mail extension under CCP Section 1013 exists but applies to the opposing party’s response deadlines, not to yours.⁴

After you serve, file a proof of service with the court. Without it, the court may treat your papers as unserved. Keep at least three copies of the full packet: court, opposing side, your file.

At the Hearing

The judge will have read both the motion and your opposition. Oral argument is usually short. Pick two or three strongest points and stay with them. If you have a procedural knockout, open with it. If the case turns on substance, focus on the specific evidence that shows the defendant’s neglect was not excusable or their no-notice claim isn’t credible.

The judge will either deny the motion, in which case your judgment stands, or grant it, in which case the judgment is vacated and the case is reopened. If relief is granted under the mandatory attorney-fault provision, ask the court to direct the defendant’s attorney to pay your reasonable compensatory legal fees and costs. On any granted motion, the court may also impose a penalty of up to $1,000 on the offending party or attorney.¹ If the motion is granted, the case returns to active litigation and you’ll need to prove your case on the merits. Plan for that possibility while you’re still preparing the opposition, not after.

1
California Legislative Information. California Code of Civil Procedure Section 473
2
California Legislative Information. California Code of Civil Procedure Section 473.5
3
California Legislative Information. California Code of Civil Procedure Section 1005
4
California Legislative Information. California Code of Civil Procedure Section 1013