Motion to Set Aside (Relief from Default Judgment)
If a defendant does not respond to a civil lawsuit, the plaintiff may obtain a default and default judgment, winning the case without the defendant’s participation. If the defendant has a valid reason for not responding, such as never being notified, they may file a motion asking the judge to set aside the default judgment. This is also called a motion for relief from default or a motion to vacate judgment. This guide gives the steps to write and file such a motion, and includes templates you can adapt to fit your situation.
Templates and Forms
When a defendant is served with a Summons and Complaint, the defendant has a limited amount of time (typically 30 days) in which to respond to the lawsuit. The response must be a formal written response filed in court and served on the plaintiff. A letter or phone call will not protect the defendant.
If a defendant fails to respond, the plaintiff may ask the court to enter a default, cutting off the defendant’s time to respond. The plaintiff can also file a request for default judgment for the amount they claim is owed.
In a breach of contract or collection case, the amount of the judgment is usually the amount requested by the plaintiff in the complaint. In a personal injury or property damage case, the amount awarded is limited to the amount of damages established by the evidence the plaintiff presents to the Court.
If the judgment is granted, the plaintiff can garnish the defendant’s wages, levy their bank account, put a lien on their real estate, and use other collection methods to obtain the judgment amount.
Sometimes defendants are not actually notified of the lawsuits, often because they have moved. In that case, the defendant may only find out about it when their wages are garnished or their checks start bouncing because their bank account is empty. In those cases, the defendant may file a motion to vacate the judgment. If this motion is granted, the plaintiff must start over again, beginning by serving the defendant.
Grounds for Relief
California Code of Civil Procedure (CCP) §§ 473(b), 473(d), and 473.5 and Civil Code (Civ) § 1788.61 specify the most common grounds upon which you can base a motion for relief from default or default judgment. These grounds include:
Inadvertence, surprise, mistake, or excusable neglect (CCP § 473(b))
Under CCP § 473(b), the court may set aside a default and default judgment if the defendant asking for the set aside presents enough evidence to the court to demonstrate that the default was entered by inadvertence, mistake, surprise, or excusable neglect. This motion must be filed within six months of the default being set aside.
“Inadvertence” and “excusable neglect” are virtually synonymous (See Barnes v. Witt, 207 Cal. App. 2d 441 (1962)), and are the most common reasons for a set aside. In addition to filing a timely motion, the defendant asking for the set aside must present sufficient evidence for the court to find that the inadvertence or neglect was excusable. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances. Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect.
Examples of excusable neglect include:
- Illness that disables the party from responding or appearing in court
- Failure to respond because you relied on your attorney to do so
- Failure to appear at trial because you relied on misinformation provided by a court officer
A mistake of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake, and therefore is not usually grounds for relief from a default; however, the more confusing or obscure the critical fact or point of law that caused the default, the more likely it becomes the court will find the mistake to be excusable.
Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.
Typically, in the day-to-day handling of these motions, the court does not focus on whether a problem is a “mistake” or “inadvertence” or “excusable neglect,” but rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the requesting party from the judgment.
Party not given actual notice in time to defend (CCP § 473.5)
Even if service of the summons is proper, sometimes it does not result in “actual notice” to a party in time to defend their case. “Actual notice” means the party genuinely does not know of the litigation, so to show a lack of actual notice a defendant would need to demonstrate to the court that he or she lacked knowledge that the lawsuit existed. This lack of knowledge cannot be caused by the defendant’s inexcusable neglect or avoidance of service. Motions based on CCP § 473.5 must be filed within a reasonable period of time, and that time must be within two years of the date of the judgment. Goya v. P.E.R.U. Enterprises, 87 Cal. App. 3d 886 (1978).
Party not given actual notice in time to defend action brought by a debt buyer (Civ § 1788.61)
Similar to the grounds discussed above, Civ § 1788.61 permits a defendant to set aside a default or default judgment when service of a summons did not result in actual notice in time to defend cases brought by a debt buyer. This code section applies only if you were sued by debt buyer, such as a collection agency or law firm that purchased the debt from the original creditor. Motions brought under this code section must be filed within either 6 years after the entry of default, or 180 days of the first actual notice of the action, whichever is earlier.
If this default judgment occurred because you were the victim of identity theft, or this is a case of mistaken identity (e.g., the judgment should be against someone else who shares your name), you have 180 days from the first actual notice of the case to ask the court to set aside the default judgment.
Void judgments (CCP § 473(d))
The court may, on its own motion or the motion of either party, set aside any void judgment or order. A judgment or order may be void if the issuing court lacked subject matter jurisdiction over the action, if the court lacked personal jurisdiction over the defendant, if the judgment or order granted relief that the court had no power to grant, or if the judgment was procured by fraud on the court. Although there are numerous ways in which a judgment may be void, a common way default judgments are found to be void is if the judgment was obtained after improper or fraudulent service, resulting in a lack of personal jurisdiction over the defendant.
A judgment may be void on its face if review of the court file reveals that the judgment was improperly entered, for example, if a default judgment is entered against a defendant less before 30 days have lapsed since the date of service shown on the Proof of Service of Summons. A judgment may be void in fact if the judgment appears to be properly entered in the court file, but evidence shows that the judgment was improperly entered, for example, if a defendant can establish that the Summons was never served.
A judgment void on its face is subject to set aside at any time, (see Nagel v. P & M Distributors, Inc., 273 Cal. App. 2d 176 (1969)), however courts typically require that a motion to set aside a judgment that is void in fact to be filed within a reasonable period of time. In determining the outer limits of what constitutes a reasonable time, courts have referred by analogy to statutory limitation periods. Some courts have applied the six-month period applicable to motions under CCP § 473(b) (see, e.g., Wells Fargo & Co. v. City etc. of S.F., 25 Cal. 2d 37 (1944)). Other courts have applied the two-year or 180-day period applicable to motions under CCP § 473.5, particularly when the judgment or order is void in fact due to an extrinsic defect in service (see, e.g., Rogers v. Silverman, 216 Cal. App. 3d 1114 (1989)). Given the wide discretion of the court and the lack of consensus of what constitutes a reasonable period of time, it is typically best to promptly file any motion seeking to set aside a void judgment.
Step-by-Step Instructions
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Collect Supporting Evidence
Before starting the motion itself, gather information that can help you convince the judge to grant your motion. Motions to set aside default judgments typically include one or more documents attached as exhibits, which provide the court with evidence supporting your claims. The documents you will attach vary depending on your situation, the grounds you are claiming, and what you are attempting to prove.
For example, you may want to collect:
- Evidence of your residential or business address on the purported date of service, if you are claiming that you did not receive actual notice because service occurred at an old address;
- Medical documentation if you claim excusable neglect based on a medical condition;
- Proof that you are not the party named in the judgment if you are claiming mistaken identity;
- Identity Theft Victim’s Complaint and Affidavit or a copy of a related police report if you are claiming identity theft (NOTE: If you are claiming identity theft under Civ § 1788.61, one of these must be included with your motion);
- Documentation of any misinformation you received from a court officer, etc.
Remember, you are not trying to convince the court why you should win the lawsuit at this point. You are attaching only documents that prove why the default should be set aside. If your motion is granted, you will have an opportunity to present your defense to the lawsuit.
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Schedule the Hearing
This information is for Sacramento. If your case is in a different county, do not follow these instructions. Instead, call the clerk or visit the court website in your county to find the correct information.
Determine the department and time of the motion
In Sacramento, most motions are heard in the “Civil Home Court” department assigned to the case, which will be either department 25, 28, 53, or 54. Check your case file online to find which department your case is assigned to.
Note: Prior to November 10, 2025, each civil case was assigned to either Department 53 or 54 for most motions. If your case was filed before that date, its assigned department may have changed, so check before scheduling a hearing.
More information about Civil Home Court department transition
A few types of motions are heard in other departments. Check which departments hear which types of motions in Sacramento on the Civil Motions webpage.
Reserve the date for the hearing
In the Civil Home Departments, you must reserve a court date through the court’s online reservation system. For other departments, contact the department clerk to determine the procedure.
To use the online system, go to the Sacramento Court Public Portal and choose “Reservation System (CRS).” You must have a free account on the system to use it.
Before you log on or call, figure out if there are any days you will not be available during the next couple of months. For instance, you don’t want to pick a date when you know you will be out of town.
You must choose a date far enough in the future that you can both file and serve your motion on time. Scheduling it four weeks in advance generally gives a comfortable margin for most types of motions. Usually, the first available date will be further away than that.
Determine the legal deadline to file the motion in court
Disclaimer! Some motions have different time requirements. Check the rules for the motion you are filing.
Tip: File the motion as soon as possible. Your reservation is not final until the motion has been filed and any fees paid.
The last legal day to file with the court is at least sixteen court (business) days prior to the motion date (CCP § 1005). “Court days” are Monday through Friday, excluding court holidays.
NOTE: the court must receive the documents by that day. Postmark will not count.
To determine whether a particular filing date will meet this deadline, start counting backwards on the day before your hearing until you reach the sixteenth court day. (CCP § 12c)
For example, suppose your reservation is for Monday, June 18. You would start counting backward using the previous court day, Friday, June 15, as day one, as shown in the calendar below. Skip weekends and court holidays (there is one court holiday in this example, which is Memorial Day, May 28). The sixteenth court day before the hearing would be May 24, which would be the last day that the motion could be filed.
Make a note on your calendar to file the motion by this date. Do not miss this deadline. The court will cancel the hearing and you will have to start over.
Determine the legal deadline to serve the motion on the other parties or their attorneys
You must have a copy of the motion served on all other attorneys (or self-represented parties) by a strict deadline set by law. Earlier is always fine.
Personal service: 16 court days before the hearing, the same as the minimum filing deadline. The server should fill out Proof of Personal Service—Civil (POS-020).
Service by mail: 16 court days before hearing PLUS five calendar days before the hearing (more if the mailing address is outside California). (CCP § 1005). The server should fill out Proof of Service by First-Class Mail—Civil.
“Court days” are business days – Monday – Friday, except holidays.
“Calendar days” include weekends and holidays, but if the final day lands on a weekend or holiday, it is pushed back to the previous court day.
Make a note on your calendar to have the motion served by mail before the mail deadline. If you miss the mail deadline, you can still have the motion served by personal service up until 16 court days before the hearing. If you miss that deadline, you will have to cancel your court date and start over.
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Prepare Your Motion and Proposed Response
A request to set aside a default is made through a motion. A “motion” is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts:
- Notice of Motion;
- Motion;
- Points and Authorities; and
- Declaration
The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion lets the court and the opposing party know what is being requested. The Points and Authorities explains to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion.
The parts can be filed as separate documents or combined into one document, as in our template motion.
Modify the Template Motion
There is no Judicial Council form for this procedure. Instead, the relevant documents must be typed on 28-line pleading paper. A customizable template may be downloaded from this link:
The template includes Points and Authorities for all the grounds listed above. The template also includes arguments to be used if you are seeking to quash the service of summons. These are used in instances where the service itself was improper (e.g., it never took place; substituted service was upon a minor child, etc.). In your case, you will likely not be making all of these arguments. You must read the template very carefully, and select only the grounds and arguments that fit your situation.
This sample includes a number of checkboxes that can be filled in by hand. Although you may use this form as is, it will be substantially shortened and look cleaner if you download the customizable template of the motion from the link listed above, and remove the instructions in parenthesis, checkboxes and associated text that are not appropriate to your case, and underlining (after filling in the underlined sections, of course).
Although the declaration (the last part of the motion) can be used as a checkbox form, it is generally preferable if you use your own words to explain the facts of your case. The checkbox form does not anticipate all possible facts that might arise, and is best used as a guideline for some of the points that should be made in your declaration. The declaration is the most important part of the motion, because the declaration presents to the court the evidence that you wish the court to consider when ruling on your motion. Because it is your responsibility as the moving party to prove the basis of your motion, the better your declaration, the more likely it is that your motion will be granted by the court.
Prepare Your Responsive Pleading
A copy of your proposed responsive pleading must be attached to your motion as an exhibit. Your responsive pleading is most likely an Answer, but other options are available. For more information, see the guide on Responding to a Lawsuit or Responding to a Debt Collection Lawsuit.
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Assembling and copying papers
E-filing is now available in Sacramento. Self-represented parties can choose to file papers by electronic filing, but are not required to. Attorneys are required to use e-filing for most things. To use e-filing, you will need to select a third-party provider and email your paperwork to them. For more information on this in Sacramento, visit the Sacramento court’s e-filing information webpage.
If you do not use e-filing, follow the instructions on this page.
Make enough copies of your papers to serve one set on each party in the case, plus an optional one for you to keep. Staple the copies, but leave the original unstapled so it can easily be scanned into the court’s file system.
The original and your optional copy are to be filed with the court. You should get the copy back after the clerk stamps (“endorses”) it. You can also download a stamped copy from the online portal within a few days.
For each exhibit attached to your motion, you must place a page in front of the exhibit identifying it as Exhibit A, B, and so forth in alphabetical order, or Exhibit 1, 2, and so forth in numerical order.
4
Have Your Documents Served on the Attorney(s) or Self-Represented Party(s)
You must have someone serve your papers on the other attorney or self-represented party in the case. (If there are more than two parties, you must serve all parties, or their attorneys if they have one).
Service must be complete 16 court (business) days before the hearing date, plus five calendar days if you have it served by mail.
Tip: If the mailing deadline (16+5 days) has passed, but there are still more than 16 court days before the hearing, you can have it served by personal delivery. If you miss the service deadline entirely, you will need to re-schedule your motion.
Proof of Service form:
After service is done, you will need to file a Proof of Service signed by the server. If serving by mail, you can use Proof of Service by Mail (POS-030). For personal service, use Proof of Personal Service (POS-020). You can fill most of the Proof of Service out now, but it should not be signed. Make a copy of the unsigned proof of service before proceeding and include it with the motion papers when you have them served.
After serving the papers, your server will sign the Proof of Service form, and give it to you.
Attach the original signed Proof of Service to your original signed motion. If you are using an optional copy for yourself, attach a copy of the Proof of Services to that.
You can also file it as a separate document, without attaching it to your motion papers.
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Assemble your Documents for Filing
Assemble your packet for filing as follows. The original should be unstapled, while any copy is stapled.
- Motion, including Memorandum of Points and Authorities and Declaration with exhibits: original plus one optional copy to be returned to you.
- Proposed Order, if included, plus one optional copy.
- Completed Proof of Service form: The original plus plus one optional copy. This proof of service can filed as its own document, or it can be attached as the last page of the Motion when filing. If it is attached, then attach the original signed Proof of Service to the original signed Motion.
- Any other documents, such as Request for Judicial Notice, should be treated the same way: create a stack of original plus one optional copy and file along with the others.
If you are submitting the papers in the dropbox, you will find cover sheets and large binder clips to hold the whole package together near the box.
6
File at the Hall of Justice Building
All moving papers, oppositions, and replies can be e-Filed, mailed to 720 9th Street, Room 102, Sacramento, CA 95814, or filed in person at the Hall of Justice Building, 813 6th Street, Room 212, 2nd Floor Sacramento, CA 95814.
Note: If you file in person, go to 813 6th Street for all departments (even though Dept. 25 and Dept. 28 are physically located in the main courthouse at 720 9th Street).
Your options are:
- Wait in line to file with the clerk in Room 212.
- Drop your paperwork and payment in the dropbox in the lobby. Payment must be by check or money order. Your papers will be marked as filed on the day you place them in the box if they arrive before 5 p.m.
- Mail your paperwork and payment to: 720 9th St., Rm 102, Sacramento CA 95814. Payment must be by check or money order. Your papers must arrive by the due date; the postmark will be ignored.
- Use the court’s efiling system. This system is optional for self-represented litigants. Fees will be paid to the electronic filing service provider, which forwards them to the court.
At this time there is a $60 filing fee for a motion, unless your fees were waived. Dropbox filings must include a check or money order/cashiers check, no credit cards. Credit cards can be accepted at the counter or used when efiling.
Fee Waiver: If you are receiving government benefits such as Medi-Cal or are otherwise qualified because of low income, you can apply for a fee waiver. If you do not yet have a fee waiver, turn the fee waiver request forms in with the motion instead of a fee payment. For more information, see our Step-by-Step guide on Fee Waivers.
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Opposition Papers and Your Optional Reply Papers
If any opposing counsel or self-represented party opposes your motion, he or she may serve and file an opposition at least nine court days prior to your motion. No fee is required to file an opposition. The opposition contains a memorandum of points and authorities and usually a declaration, but does not need the notice of motion or motion. Be sure to check your mail, and read any documents you receive carefully.
If another attorney or party opposes your motion, you may choose to serve and file a reply to the opposition at least five court days prior to the motion. CCP § 1005. It must be served by overnight mail to reach the opposing party no more than one day after it is filed.
The reply is optional and is usually used to address new issues your opponent raised in the opposition. No fee is required to file a reply. See the our guide on Writing, Scheduling, and Opposing Motions for more information.
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Review Tentative Ruling at 2 p.m. the Court Day before the Hearing; Schedule Argument by 4 p.m. if Necessary
Most California courts use the tentative ruling system. In Sacramento, pursuant to Local Rule 1.06, the Civil Home Court departments issue tentative rulings on the motion by 2:00 p.m. the court day before the hearing. You then have two hours to request oral argument, if you choose to do so. Other departments may have different times or may not use tentative rulings; check with the department clerk.
Warning!
Your hearing will be canceled
If neither you nor the other party calls the court, the hearing will be canceled and you will not be permitted to talk to the judge.
You may read the tentative ruling online or call 916-874-7858 or 916-874-7848 to have a clerk read the ruling to you. For more information, see the Sacramento County Superior Court’s Civil Tentative Rulings page.
Closely review the Tentative Ruling. If you are making the motion, you are looking for your motion to be “GRANTED.” If you are opposing the motion, you are looking for the motion to be “DENIED.” The motion may also be “GRANTED IN PART” and “DENIED IN PART.” The judge sometimes orders the parties to appear, even if neither party requests oral argument.
Losing party: If you are not happy with the Tentative Ruling, and wish to present oral argument in front of the judge, you must call all opposing counsel and/or self-represented parties right away. Let them know that that you are appearing, and that they can appear via Zoom. Leaving a message is fine.
Then call the Law and Motion Oral Argument Request Line at (916) 874-5463 by 4:00 p.m. Leave a message with the following information: 1. Your name, and that you want to appear; the item number (to the left of your case number on the Tentative Ruling); that you have let the other parties know you are appearing, and that they can appear via Zoom.
Note: carefully consider whether it is worth your time to request oral argument. It is very rare for judges to change their mind, but it does happen sometimes.
Winning party: If you are happy with the Tentative Ruling, you do not need to do anything unless the Tentative Ruling orders you to appear, or the other side calls you before 4:00 p.m. that day to request oral argument. If that happens, you should go to the court hearing in person or by Zoom and be prepared to argue your case.
If neither party requests oral argument by 4:00 p.m., the court will simply make the tentative ruling permanent, and no oral argument will be permitted.
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Attend the Hearing, if Required
If you or the other party request oral argument, arrive in court or log onto Zoom early. There will probably be other cases scheduled at the same time; there is usually a list posted on the wall outside the courtroom that lists the order in which cases will be heard. Go into the courtroom or Zoom waiting room and check in with the bailiff or clerk.
In Person
If your Home Court Department is Dept. 53 or 54, you will go to 813 Sixth Street, second floor.
If your Home Court Department is 25 or 28, you will go to 720 9th Street, fourth floor.
When your name is called, be ready to speak and to answer any questions the judge has. You will only have a few minutes. After both sides speak, the judge may make a decision right away, or may “take it under consideration” and mail out the decision in a few days.
If you have questions about the order, you can ask them at the hearing. Make sure you understand if you are expected to do something as a result of the order. For instance, if you are ordered to file an amended complaint or serve responses, make sure you know the deadline and what is expected.
10
File Your Answer or Other Responsive Pleading
If the judge grants your motion, have your server serve your response on your opponent and sign the proof of service. Attach the signed proof of service to your signed original and file it, plus one copy, with the court.
For Help
SH@LL (Self-Help at the Law Library)
609 9th Street, Sacramento CA 95814
(916) 476-2731 (Appointment Request Line)
Services Provided: SH@LL provides general information and basic assistance to self-represented litigants on a variety of legal issues. All assistance is provided by telephone. Visit “What we can help with” for a list of qualifying cases.
Eligibility: Must be a Sacramento County resident or have a qualifying case in the Sacramento County Superior Court.
For More Information
On the Web:
For information about the Sacramento County Superior Court’s motion requirements, visit Motions and Hearings.
At the Law Library:
California Civil Procedure Before Trial KFC 995 .C34 Chap. 38.
Electronic Access: On the Law Library’s computers, using OnLaw.
California Practice Guide: Civil Procedure Before Trial KFC 995 .W45 Chap. 5.
California Forms of Pleading and Practice KFC 1010 .A65 C3 (Ready Ref) Chap. 489.
Electronic Access: On the Law Library’s computers, using Lexis Advance.
California Civil Practice: Procedure KFC 995 .A65 B3 Chap. 29.
California Pretrial Civil Procedure KFC 995 .M38 Chap. 36.
Electronic Access: On the Law Library’s computers, using Lexis Advance.
California Points and Authorities KFC 1010 .B4 (Ready Ref) Chap. 70.
Electronic Access: On the Law Library’s computers, using Lexis Advance.
Younger on California Motions KFC 1012 .C35 Chap. 26.
Samples
This material is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance consult a lawyer.