⚠ What is a Default and Default Judgment?
A default is not a judgment—yet. When you miss the deadline to respond to a lawsuit, the plaintiff can request the clerk to enter your "default," which freezes you out of the case. Then the plaintiff seeks a "default judgment"—the actual court order against you. California provides several mechanisms to set aside both defaults and default judgments, but you must act quickly. The most common path is CCP 473(b), which has a strict 6-month deadline from entry.
📋 Default vs. Default Judgment: The Critical Distinction
Understanding the two-step process is essential:
| Stage | What Happens | Effect | Can It Be Set Aside? |
|---|---|---|---|
| Entry of Default | Clerk enters default on request of plaintiff (CCP 585(a)) | Defendant loses right to participate; admits all well-pleaded allegations | Yes—easier than setting aside judgment |
| Default Judgment | Court enters judgment after prove-up hearing or clerk's judgment | Final judgment; plaintiff can enforce (wage garnishment, liens, etc.) | Yes—but harder and subject to stricter scrutiny |
If you've received a Request for Entry of Default (form CIV-100) but default judgment hasn't been entered yet, you can still file your response. Under CCP 585(b), you have the right to file your answer or other responsive pleading up until the moment the clerk actually enters the default. Don't wait—file immediately and serve a copy on plaintiff's counsel.
⏰ How Defaults Happen: The 30-Day Clock
The default process starts when you're served with a summons and complaint:
- Personal service in California: 30 calendar days to respond
- Substitute service: 30 days + 10 days after mailing = 40 days total
- Service by mail (with acknowledgment): 30 days from date acknowledgment signed
- Service outside California: 30 days + additional time based on distance
- Service by publication: 30 days after last publication date
If you don't file a response (typically an Answer, Demurrer, or Motion to Strike) within the applicable deadline, the plaintiff can request the clerk to enter your default.
Even after the deadline passes, you have a window to file your answer. Under CCP 585(b), default cannot be entered if you've filed your response—even if it's late. Many defendants save their cases by filing immediately upon discovering they missed the deadline, before the plaintiff requests entry of default. Check the court docket: if no Request for Entry of Default has been filed, you can still respond.
🔍 Decision Tree: Which Motion Do You Need?
If your fault + within 6 months: CCP 473(b) Discretionary Relief—show "mistake, inadvertence, surprise, or excusable neglect"
If beyond 6 months: Limited options—CCP 473(d) if judgment is void, or equitable relief in rare circumstances
📊 Relief Options at a Glance
| Statute | Type of Relief | Deadline | Standard |
|---|---|---|---|
| CCP 473(b) - Mandatory | Attorney fault | 6 months from entry | Must grant if attorney admits fault |
| CCP 473(b) - Discretionary | Client fault | 6 months from entry | Mistake, inadvertence, surprise, excusable neglect |
| CCP 473(d) | Void judgment | None (reasonable time) | Judgment is void on its face or proven void |
| CCP 473.5 | Lack of actual notice | 2 years / 180 days after notice | No actual notice despite valid service |
| Equitable Relief | Extrinsic fraud/mistake | Reasonable diligence | Meritorious defense + satisfactory excuse + diligence |
- Default ≠ Default Judgment—you may still be able to file your answer if judgment hasn't been entered
- 6 months is the critical deadline for CCP 473(b) relief—mark your calendar from the date of entry
- Attorney fault = mandatory relief—the court has no discretion to deny if requirements are met
- Void judgments have no time limit—but you must prove the jurisdictional defect
- Always include a proposed Answer with your motion to set aside
📅 The Default Judgment Timeline
Understand the sequence to know where you are. From service of the complaint to default judgment takes multiple steps. At each stage, you have different options. The earlier you intervene, the easier it is to get back into the case.
🕑 From Service to Judgment: The Full Sequence
"Application for this relief...shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken."
The 6-month period is jurisdictional—courts have no power to extend it, even for good cause.
📆 Calculating Your Deadline
The 6-month deadline runs from the date of entry of default or default judgment—not when you learned about it:
- Entry of Default: Check the court docket for the exact date the clerk entered default
- Default Judgment: The date the court signed the judgment, not when it was filed or mailed
- 6 months = calendar months: Entry on January 15 means deadline is July 15
- If deadline falls on weekend/holiday: Extended to next court day (CCP 12a)
Courts require the motion to be made (filed and served) within 6 months, not just filed. Service adds time to your deadline calculations. To be safe, file at least 3-4 weeks before the 6-month deadline to ensure proper service and hearing scheduling.
⚖ What If You're Close to the Deadline?
If you're approaching the 6-month mark:
- File immediately—even an incomplete motion preserves your right to relief
- Request ex parte hearing if necessary to get heard before deadline
- Include declaration explaining the urgency and reason for any deficiencies
- Propose answer with your motion—courts require this showing you have a defense
If you're days from the deadline and can't prepare a complete motion, file a motion to set aside with a basic declaration stating the grounds and requesting additional time to supplement. This preserves jurisdiction while you prepare the full motion. Include a proposed answer, even if rough, to show you intend to defend.
📜 CCP 473(b): Your Primary Path to Relief
CCP 473(b) is your best friend—but know the difference. There are two tracks: mandatory relief (attorney admits fault = court must grant) and discretionary relief (you show "excusable neglect" = court may grant). Understanding which applies determines your strategy and chances of success.
✅ Mandatory Relief: The Attorney Fault Provision
The mandatory provision is powerful—when it applies, the court has no discretion to deny relief:
"Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk..., or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect."
Requirements for Mandatory Relief:
- Filed within 6 months of entry of default or default judgment
- In proper form—proper notice, proposed answer attached
- Attorney's sworn affidavit of fault (not just the client's belief)
- Attorney must admit the default was caused by their mistake, inadvertence, surprise, or neglect
- Causal connection—the attorney's conduct actually caused the default
When an attorney files a 473(b) declaration admitting fault, they expose themselves to malpractice liability and potential State Bar discipline. The statute provides that the court "shall" direct the attorney to pay "reasonable compensatory legal fees and costs" to opposing counsel. This is a deliberate trade-off: the client gets relief, but the attorney takes the hit. Many attorneys are willing to do this to protect their clients, but it requires careful consideration.
🤔 Discretionary Relief: "Excusable Neglect"
If mandatory relief doesn't apply (you were pro se, or the fault wasn't the attorney's), you must convince the court that your neglect was "excusable":
What Constitutes "Excusable Neglect"?
| Usually Excusable | Usually Not Excusable |
|---|---|
| Serious illness or medical emergency during response period | Simply forgetting about the lawsuit |
| Death or serious illness of close family member | Being too busy with work or personal matters |
| Reasonable reliance on others (e.g., attorney, insurance company) | Ignoring the complaint hoping it would go away |
| Mail forwarding issues when not at fault | Deliberate choice not to respond |
| Genuine confusion about court procedures (pro se) | Financial inability to hire an attorney |
| Clerical errors in calendaring | Mere carelessness or inattention |
Hearn v. Howard (2009) 177 Cal.App.4th 1193: "To qualify for discretionary relief under section 473(b), a party must show that its neglect was excusable because a reasonably prudent person under similar circumstances might have made the same error."
The question is not whether you think your conduct was reasonable, but whether a reasonably prudent person in your situation would have acted similarly.
📝 Declaration Requirements
Your declaration is the heart of the motion. For discretionary relief, you must establish:
- Personal knowledge: State that you have personal knowledge of the facts
- Service details: When and how you received the complaint (or why you didn't)
- What happened: Specific facts explaining why you didn't respond in time
- Why it was excusable: Connect your circumstances to the "reasonably prudent person" standard
- Discovery of default: When you learned about the default and what you did immediately
- Diligence: Show you acted promptly once you learned of the problem
- Meritorious defense: Brief explanation of your defense to the lawsuit
- No prejudice: Explain why plaintiff won't be prejudiced by setting aside
⚠ Common Mistakes That Doom 473(b) Motions
- Vague declarations: "I was very busy" is not excusable neglect. Be specific about what prevented you from responding.
- Blaming others without basis: If you claim your former attorney was at fault, you need evidence.
- Missing the proposed answer: Courts regularly deny motions that don't include a proposed pleading.
- Not explaining diligence: Failing to show you acted promptly upon discovering the default.
- No meritorious defense: If you have no defense to the lawsuit, the court may find setting aside would be futile.
💰 What About Costs and Attorney's Fees?
Mandatory relief under 473(b) comes with consequences for the attorney:
- Attorney must pay opposing counsel's reasonable fees and costs incurred in obtaining the default
- Court has discretion to impose additional sanctions
- Fees are not reimbursable to the client—the attorney bears the cost personally
For discretionary relief, the court may condition relief on:
- Payment of costs incurred by opposing party
- Terms the court deems just—wide discretion here
🚫 Void Judgments: CCP 473(d) and Beyond
A void judgment is no judgment at all. If the court lacked jurisdiction—typically due to defective service—the resulting default judgment is void and can be attacked at any time. Unlike CCP 473(b), there's no 6-month limit for void judgments under CCP 473(d). But proving the judgment is void (not just voidable) requires showing a fundamental jurisdictional defect.
⚖ Void vs. Voidable: The Critical Distinction
| Void Judgment | Voidable Judgment |
|---|---|
| Court lacked fundamental jurisdiction (subject matter or personal) | Court had jurisdiction but made procedural errors |
| No time limit to attack | Must challenge within statutory time limits |
| Can be attacked directly or collaterally | Generally only direct attack allowed |
| Example: Defendant never served (no personal jurisdiction) | Example: Service technically defective but defendant had actual notice |
| Example: Court lacked subject matter jurisdiction | Example: Procedural irregularities in prove-up hearing |
"The court may, upon motion of the injured party or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
Note the language: "may" set aside—but courts uniformly do so because a void judgment has no legal effect.
📨 Defective Service: The Most Common Void Judgment Ground
Most void judgment claims arise from defective service of process. To establish personal jurisdiction, the plaintiff must strictly comply with service requirements:
Service Defects That Render Judgment Void:
- No service at all—defendant never received summons and complaint
- Service on wrong person—not defendant, not authorized agent
- Service at wrong address—not defendant's dwelling or place of business
- Defective substitute service—didn't comply with CCP 415.20 requirements
- Invalid service by publication—didn't meet statutory prerequisites
- Forged proof of service—service never actually occurred
The proof of service creates a presumption that service occurred as stated. To overcome it, you need specific facts—not just a denial. Declarations stating you weren't at the address on the date stated, evidence you were traveling, witnesses who can testify about your whereabouts, or evidence the address wasn't your residence all help. A bare denial ("I was never served") is usually insufficient against a facially valid proof of service.
⏰ CCP 473.5: Lack of Actual Notice
Sometimes service was technically valid, but you never actually received notice. CCP 473.5 provides relief:
| CCP 473.5 Element | Requirement |
|---|---|
| Valid service occurred | Service was proper, so judgment isn't void—but you didn't know about it |
| No actual notice | You didn't actually know about the lawsuit in time to defend |
| Time limit | Motion within 2 years of entry of default judgment OR 180 days after you received notice, whichever is earlier |
| Sworn declaration | Must include declaration under penalty of perjury stating lack of actual notice |
Common 473.5 Scenarios:
- Substitute service at old address after you moved
- Papers left with household member who didn't tell you
- Served at workplace but papers lost/not delivered
- Service by publication when you had no reason to see it
🏛 Equitable Relief: Last Resort Options
When statutory remedies don't apply (beyond 6 months, not void, had actual notice), equitable relief may be available in narrow circumstances:
Extrinsic Fraud or Mistake
Relief may be available if you can show:
- Meritorious defense to the underlying claim
- Satisfactory excuse for not presenting the defense originally
- Diligence in seeking relief once the fraud/mistake was discovered
Courts are reluctant to grant equitable relief from judgments because of finality concerns. The showing required is substantial, and success rates are low. Treat equitable relief as a last resort, not a backup plan. If you're within the 6-month window for 473(b), file that motion even if you think you might have a void judgment claim—belt and suspenders.
📋 Proving the Judgment Is Void
To succeed on a void judgment motion, you need:
- Proof of service analysis: Obtain and scrutinize the filed proof of service
- Declaration of non-service: Your sworn statement explaining why service was defective
- Address evidence: Lease, utility bills, DMV records showing your actual address
- Travel records: If claiming you weren't present when allegedly served
- Witness declarations: Anyone who can corroborate your account
- Process server records: Subpoena records if claiming server is mistaken/fraudulent
📝 Preparing the Motion to Set Aside
The motion must be complete and compelling. You need: (1) a properly noticed motion, (2) declarations establishing your grounds for relief, (3) a proposed Answer showing you have a defense, and (4) a memorandum of points and authorities citing the applicable law. Miss any piece and you risk denial.
📂 Required Documents
| Document | Purpose | Key Contents |
|---|---|---|
| Notice of Motion | Formal notice to all parties | Date, time, location of hearing; nature of relief sought; statutory basis |
| Motion/Memorandum of P&A | Legal argument | Statement of facts; legal standard; why you qualify; response to likely opposition |
| Declaration of Defendant | Factual basis | Personal knowledge facts establishing excusable neglect or void judgment |
| Declaration of Attorney | For mandatory relief | Attorney's admission of fault (required for mandatory 473(b) relief) |
| Proposed Answer | Shows meritorious defense | Complete, verified Answer to the Complaint (as attachment/exhibit) |
| Proof of Service | Establishes proper service | Method and date of service on plaintiff/counsel |
📄 The Proposed Answer Requirement
CCP 473(b) states relief shall be granted "upon any terms as may be just" and courts uniformly require a proposed responsive pleading. The proposed Answer serves two purposes: (1) shows you have a meritorious defense worth pursuing, and (2) can be deemed filed if the court grants relief. Failure to include a proposed Answer is one of the most common reasons motions are denied.
Your proposed Answer should:
- Be complete—respond to every paragraph of the Complaint
- Assert all affirmative defenses you intend to raise
- Be verified if the Complaint was verified (CCP 446)
- Be attached as an exhibit to your motion
- Include signature block ready to file
⏱ Timing and Notice Requirements
Motion to set aside default follows standard noticed motion procedures:
| Requirement | Rule |
|---|---|
| Notice period | 16 court days before hearing (CCP 1005(b)) |
| Service by mail (CA) | Add 5 calendar days |
| Service by mail (outside CA) | Add 10 calendar days |
| Opposition deadline | 9 court days before hearing |
| Reply deadline | 5 court days before hearing |
💬 Sample Declaration Language
⚖ What to Expect at the Hearing
At the hearing on your motion:
- Judge reviews papers—most decisions are made on the papers, not oral argument
- Brief oral argument—be prepared to summarize your position in 2-3 minutes
- Opposition arguments—plaintiff will argue you don't meet the standard
- Questions from the bench—be ready to address any gaps in your showing
- Court's ruling—may rule from the bench or take under submission
California courts have a strong policy favoring resolution on the merits. When in doubt, emphasize this policy: "The law favors a hearing on the merits, and any doubts in applying section 473 are to be resolved in favor of the party seeking relief from default." Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980. This policy argument can tip close cases in your favor.
✅ What Happens If You Win
If the court grants your motion:
- Default is set aside—the entry of default is vacated
- Judgment is vacated—if default judgment was entered, it's set aside
- Proposed Answer is deemed filed—or court sets deadline to file
- Case proceeds normally—you're now an active party in the litigation
- Costs/fees may be ordered—especially for mandatory relief
🤝 Default Judgment Defense Services
I'm Sergei Tokmakov (CA Bar #279869), a California attorney who helps defendants set aside defaults and default judgments. Time is critical in these matters—the 6-month deadline is firm, and earlier action means better outcomes.
Motion to Set Aside Services
- ✓ Full motion preparation (CCP 473(b), 473(d), 473.5)
- ✓ Declaration drafting and strategy
- ✓ Proposed Answer preparation
- ✓ Hearing representation
- ✓ Opposition to default prove-up
- ✓ Void judgment analysis
Related Services
- ✓ Emergency deadline assessment
- ✓ Service defect investigation
- ✓ Post-judgment collection defense
- ✓ Case evaluation and strategy
- ✓ Underlying case defense
- ✓ Appeal of denied motions
Information I Need for Assessment
- ✓ Copy of the Summons and Complaint
- ✓ Proof of Service (if available)
- ✓ Request for Entry of Default (CIV-100)
- ✓ Default Judgment (if entered)
- ✓ Any notices you've received (bank levy, wage garnishment, etc.)
- ✓ Your account of what happened—why you didn't respond
- ✓ Your defenses to the underlying claim
📄 Typical Engagement
| Service | Typical Timeline | Notes |
|---|---|---|
| Initial Assessment | 1-2 days | Review documents, determine deadline, identify best strategy |
| Motion Preparation | 5-10 days | Draft motion, declarations, proposed Answer |
| Filing & Service | 1-2 days after completion | File with court, serve on opposing counsel |
| Hearing | 4-8 weeks after filing | Depends on court calendar |
If you're close to the 6-month deadline, let me know immediately. Emergency filings are possible, and preserving your right to relief is the first priority. Don't assume it's too late—even cases that seem hopeless sometimes have options.
Personal service, substitute service, service by mail, and publication. How to serve and how to challenge defective service.
Interrogatories, requests for production, depositions, and motions to compel. Discovery deadlines and procedures.
CMC statements, scheduling orders, trial setting, and case management procedures in California courts.
Requirements for informal dispute resolution before filing discovery motions and demurrers.