How to set aside default judgment motions in California

September 5th, 2009

Aside  Default judgment MotionDefault judgment motions When either a petition or a complaint is filed in court and the respondent or defendant does not respond to either the petition or the complaint then what results is known as a default judgment. There is usually a time period that is extended to allow the respondent to be heard but if this time limit expires then the plaintiff can either request for a default from the court or from the clerk.

There are huge implications in the event that the default judgment is accorded. The plaintiff (the one making the case) will be summoned to the default hearing and here the judge will pass a judgment that will be final in that matter. The plaintiff will also be granted all the requests that are deemed reasonable upon passing of the judgment. The concept of estoppels applies. As has been described, the default judgment serves to terminate the case in the event that the respondent has failed to appear for the hearings. Such default judgments ensure that in case a respondent chooses to delay the hearings, the court can pass a final judgment and thus the plaintiff will get justice in a suitable timeframe.

When a plaintiff files a case with the court, the defendant is usually allowed an amount of time in which to respond. On the next day after this period elapses the plaintiff is at liberty to apply for a default from the court or the clerk. The judgments that the court will make include divorce requests, custody etc. It is always advisable not to ignore a summons; if it results in a default judgment then you are liable for the actions and payments the judgment stipulates.

How to set aside default judgments Technically, there are three ways in which you as a defendant can reverse the default judgment proceedings. The first method is showing that the documents were not served to you correctly. To do this you have to make an ‘Application on Notice’ and the evidence has to be put before the judge. If you are successful here it will mean that the plaintiff has no basis of entering into that judgment.

The second option is showing that you have some very good reason why the default judgment should be placed aside. The service of the summons may have been correctly done but you did not get them, maybe you were away on holiday or were sick in hospital. The third way is to show that the claimant or plaintiff went for the default judgment when they were not supposed to, maybe you had already placed your defense in a timely manner.

How to set default judgment As a plaintiff you can file for default judgment with the court when the allowed response time given to the defendant has elapsed without any correspondence from their side.

Relief from default judgment in California California law has some specified grounds on which the defendant can claim relief from default judgment proceedings. The defendant will have to demonstrate to the court why he deserves to be exempted from these proceedings. To do they must have a defense meritorious enough to stand against the primary case.