Sample Motion to Set Aside Default Judgment in California

A motion to set aside a default judgment in California is a packet of documents you file with the court asking a judge to undo a judgment entered because you never responded to the lawsuit. The filing fee is $60, and under the most common statute the deadline is six months from the date the default or default judgment was entered. Getting the motion granted turns on picking the right legal ground, writing a specific sworn declaration, and attaching a complete proposed answer to the original complaint.

Pick the Legal Ground That Fits Your Situation

Each ground has its own deadline and its own burden of proof. Some defendants qualify under more than one, and the choice shapes everything else in the motion.

Mistake, Inadvertence, Surprise, or Excusable Neglect

Code of Civil Procedure Section 473(b) is the statute most defendants use. A court may vacate a default or default judgment when your failure to respond resulted from mistake, inadvertence, surprise, or excusable neglect. The motion has to be filed within a reasonable time and no later than six months after entry of the default or judgment, and you must attach the responsive pleading you intend to file or the court will deny the motion outright.¹

The test for excusable neglect is whether a reasonably careful person in the same situation might have made the same mistake. A hospitalization that overlapped with the response deadline qualifies. Forgetting about the lawsuit or deciding to ignore it does not. When the facts are close, California courts lean toward granting relief because state policy prefers deciding cases on their actual merits rather than on procedural defaults.

Your Attorney Was at Fault

A separate provision inside Section 473(b) removes the court’s discretion. If your attorney signs a sworn affidavit stating that the default resulted from the attorney’s own mistake, inadvertence, surprise, or neglect, the court is required to vacate the default or default judgment. The statute says “shall,” not “may.” The same six-month deadline applies, and the court will order your attorney to pay reasonable compensatory legal fees and costs to the other side.¹

You Never Actually Received Notice

If service of the summons was technically valid but the papers never reached you, Section 473.5 provides a separate path. Substitute service left with a household member who never handed the documents over is a common example, as is service by publication in a newspaper you never saw.

The deadline under 473.5 is the earlier of two dates: two years after entry of the default judgment, or 180 days after someone serves you with written notice that the judgment was entered. Your motion must include an affidavit showing your lack of notice was not caused by deliberate avoidance of service or inexcusable neglect, and you must attach the proposed responsive pleading.²

Section 473.5 has a sunset clause and is currently scheduled to be repealed on January 1, 2027. If you are close to that date, check whether the legislature has extended it.²

The Judgment Is Void

A judgment entered without proper jurisdiction over you is void, and CCP 473(d) lets the court set it aside on a party’s motion or on the court’s own. The statute imposes no fixed deadline, though the motion must still be made within a reasonable time. The usual basis is defective service. If you were never properly served and the proof of service filed with the court is false, the court never had jurisdiction and the judgment is a nullity.¹

After the Six-Month Window Closes

If you discover the judgment more than six months after entry and Section 473.5 does not apply, California courts retain equitable power to set aside a default based on extrinsic fraud or extrinsic mistake. Extrinsic fraud is conduct outside the lawsuit that prevented you from participating, such as the plaintiff giving the court a false address for you or telling you the case had been dismissed. To get equitable relief you must show a meritorious defense, a satisfactory excuse for not responding originally, and diligence in moving to set aside the default once you discovered it.³ Courts grant this rarely, because after the statutory period expires the policy tilts hard toward finality.

What Goes in the Motion Packet

A complete motion is several documents assembled into a single packet and filed together. Missing any one of them can result in the court rejecting the filing or denying the motion.

Notice of Motion. States what you are asking for, the legal grounds, and the date, time, and location of the hearing. It cites the specific Code of Civil Procedure section you are relying on.
Declaration. Your sworn statement of facts explaining why you failed to respond, signed under penalty of perjury.
Memorandum of Points and Authorities. The legal argument that connects your facts to the statute and explains why your situation meets the standard for relief.
Proposed Answer. A complete, ready-to-file answer to the plaintiff’s complaint, including your defenses. The statute requires this, and the court will deny the motion if it is missing.¹
Proposed Order. A draft order for the judge to sign spelling out what you want done: vacate the default, vacate the default judgment, and accept your proposed answer for filing.
Proof of Service. Documentation that the entire motion package was delivered to the opposing party, completed by whoever performed the service.

Before drafting, pull the case number, the date the default was entered, and the assigned department from the court file. Some counties require additional local forms or specific formatting, so check the court’s website or self-help center before you file.

Writing a Declaration That Actually Works

The declaration is where judges spend the most time, and it is what separates successful motions from denied ones. It must be signed under penalty of perjury and state the date and place of execution. Every fact you rely on must appear in this document, because the judge will not consider anything outside it.

Be specific. “I was sick” is not enough. “I was admitted to Kaiser Permanente on March 3, 2026, for emergency gallbladder surgery and was not discharged until March 12” gives the judge something to work with. Attach supporting documents as exhibits when you have them: hospital records, travel itineraries, proof you lived at a different address than the one where the summons was served.

Give the full timeline. When was the lawsuit filed. Why you did not respond. When you first learned about the default judgment. What you did once you found out. The gap between discovering the judgment and filing the motion matters. If you learned about it in January and waited until August, the court will question your diligence. Move fast once you know.

Keep the declaration to facts about why you missed the deadline. Save legal arguments for the memorandum of points and authorities, and save your defenses to the underlying lawsuit for the proposed answer.

The Proposed Answer Is Not a Placeholder

The proposed answer must respond to every numbered paragraph in the plaintiff’s complaint, either admitting, denying, or stating that you lack sufficient information to admit or deny. Courts deny set-aside motions when the proposed answer is incomplete or clearly thrown together, because the point of attaching it is to show you are ready to defend the case immediately.¹

Include any affirmative defenses you plan to raise. Statute of limitations, failure to state a claim, payment, identity theft, and disputing the amount owed are common in default cases. Your affirmative defenses show the court that you have a meritorious case worth hearing. A motion that says “I have a defense” without identifying it rarely succeeds.

Filing, Fee, and Service

File the completed packet with the clerk in the department where the case is assigned. Under Government Code Section 70617, the filing fee for a motion requiring a hearing is $60.⁴

If you cannot afford the fee, file a Request to Waive Court Fees (form FW-001) together with the Order on Court Fee Waiver (form FW-003) at the same time you file the motion. You qualify if you receive certain public benefits, your income is at or below the poverty level, or paying the fee would leave you unable to cover basic household needs.⁵

The clerk will assign a hearing date. Then you have to serve the entire motion package on the plaintiff or the plaintiff’s attorney. Service must be completed by someone at least 18 years old who is not a party to the lawsuit. That person fills out form POS-040 (Proof of Service—Civil) documenting what was served, when, and how, and files it with the court.⁶

Watch the timing. If service is by mail, California law generally requires the motion to be served at least 16 court days before the hearing, plus five calendar days for mailing. Miscounting these deadlines is one of the easiest ways to lose the motion before the judge reads a word of it.

The Hearing and What Comes Next

The hearing is usually brief. The judge will have read your papers and any opposition before you walk in. You may get a few minutes for oral argument, but most of the work is done on paper. If you are representing yourself, be ready to summarize your strongest points quickly and answer questions from the bench.

Expect the plaintiff’s attorney to argue against reopening the case. The common objections are that your neglect was not excusable, that you lack a meritorious defense, that you waited too long, or that reopening the case would prejudice the plaintiff. The court weighs these against California’s preference for deciding cases on the merits.

If the judge grants the motion, the default and default judgment are vacated, your proposed answer is accepted for filing, and the case proceeds as if the default never happened. New deadlines for discovery and trial will follow. If the judge denies the motion, the default judgment stands. Depending on the reason, you may be able to file a new motion on different grounds, appeal, or pursue equitable relief if the statutory deadlines have not all closed.

1
California Legislative Information. California Code of Civil Procedure Section 473
2
California Legislative Information. California Code of Civil Procedure Section 473.5
3
Stanford Law School. Rappleyea v Campbell
4
California Legislative Information. California Government Code GOV 70617
5
California Courts | Self Help Guide. Request to Waive Court Fees
6
Judicial Council of California. Proof of Service – Civil