1The topic of this issue of the newsletter is filing a motion to vacate a default and/or default judgment in California under

Code of Civil Procedure § 473 on the grounds of mistake, inadvertance, surprise or excusable neglect. California Code of Civil Procedure § 473 states in pertinent part that: “The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, order or other proceeding, taken against him or her through his or her mistake, inadvertance, 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, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” It should be noted that there are many reasons that someone may not have filed an answer to a complaint in time. For example a person may have been properly served with the summons and complaint, but may have mislaid the paperwork. A California Court of Appeal has ruled that evidence that the defendant mislaid or misfiled the papers, and as a result failed to contact a lawyer in time, may show "excusable" neglect. See Bernards v. Grey (1950) 97 Cal.App.2d 679, 683-686. Note that the Court in Bernards v. Grey found that in that particular case the defendant did not make a sufficient showing of excusable neglect. In order to qualify for relief from default and/or judgment under Section 473 the moving party must show that they: (1) timely moved the Court for relief from default, (2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect, (3) and provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them. Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default. The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. “It is the policy of law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default.” Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479. Because the law strongly favors trial and disposition on the merits, any doubts must be resolved in favor of the party seeking relief from default. Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. The main issue that someone in default must understand is that they must move promptly to have any default and/or judgment entered against them vacated. The sooner they file their motion the better as Section 473 requires the motion, “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” So instead of

thinking that they have six months and can afford to take their time, they need to think that the most time they are allowed is six months, and the sooner the motion to vacate is filed the better. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The author’s website: http://www.legaldocspro.net View numerous sample document sold by the author: http://www.scribd.com/legaldocspro © 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.

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