Legal Question in Civil Litigation in California

Motion to Vacate

I won a small claims court case against a company on 8/30/02. They did not show up for the trial even though they were correctly served by certified mail sent by the court. They have now filed a motion to vacate saying they did not appear ''due to an internal calendaring error, defendant was unaware that the hearing was set for August 30. Had the error not occurred, defendant would have attended to present its defense.'' What are their chances of having their motion granted and how do I successfully oppose it? Can they really get the judgement vacated just because they screwed up and didn't turn up for court?


Asked on 10/03/02, 4:33 pm

1 Answer from Attorneys
Timothy Canning Law Office of Timothy Canning

Re: Motion to Vacate

In California, their motion to vacate will almost certainly be granted. Grounds for opposing it are slim; you may want to inquire about the nature of their calendaring system, how often they have this problem, and so forth -- if it happens all the time, or if they do not have a formal calendaring system, you may be able to argue that their failure to show up was not excusable.

Actually, if you have a strong case, you may be better off letting them set aside the default judgment. Default judgments can be hard to collect on, as they be able to challenge the default judgment when you try to collect on it. A judgment after a contested hearing is usually not subject to collateral attack (though they can appeal it).

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Answered on 10/03/02, 5:38 pm


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