Legal Question in Civil Litigation in California

Re: ''to set aside default judgement''

Get it filed quickly. Have it heard before their motion, on an ex parte basis -- be careful, you want that motion granted, and you're doing it on the cheap without a lawyer. . .

Re: ''to set aside default judgement''

Make sure that, in your motion to set aside default judgment, you ask to set aside -both- the default judgment -and- the default. Otherwise, the judgment might be set aside, but you might still be in default. You will have to give a convincing explanation as to why you failed to answer the complaint when you were served or, more than likely, why you were never served (i.e. you were on vacation, visiting a sister, in the hospital, etc.). If so, make sure to attach a copy of your airline ticket, a declaration under penalty of perjury from the person you were visiting, a hospital bill, etc. That means, the court must have competent evidence -- either through a declaration or documents -- to back up your story. Good luck!

Re: ''to set aside default judgement''

The fact that the other side has already sought a writ of execution does not change the procedure for setting aside the default judgment, but it does make speed much more important than it otherwise would be.

Moving to set a default aside is a routine procedure for litigators, but the motion itself is very fact-specific since each defendant has different explanations to give to the court. Many explanations won't be acceptable to the court, so you really should have an attorney do this if at all possible.

Mr. Knisbacher's response suggests making the motion on an ex parte basis. I agree with him in principle, but many types of motions cannot be heard ex parte and I am not sure offhand whether a motion to set aside a default judgment is one of them. You may need to bring an ex parte motion to shorten the amount of notice for your motion, which would give the other side an opportunity to present an opposition before the court considers the matter.

Before you do anything, though, it might be worthwhile to call the attorney for the other side, explain that you are going to seek relief from the default, and ask them to agree not to execute on the judgment unless and until the court rules against you. There is a very good chance they will agree, and if they don't you probably will be no worse off than you are now.

Good luck.

Re: ''to set aside default judgement''

Timing is critical. However, courts liberally allow a set aside of a default with a reasonable excuse for not previously responding. Call to discuss.