Has a default or default judgment been entered against you? Don’t worry. Depending upon the circumstances of your case, you may be able to have this default and/or default judgment vacated or set aside.
Under California law, if you have been served with a summons and complaint and fail to respond in a timely fashion, you can still have this default vacated if you are able to show that the default was entered against you as a result of mistake or excusable neglect on the part of you or your attorney. Excusable mistake or neglect may be established in a multitude of circumstances. For example, if the complaint was served upon someone in your house who never advised you of the complaint, if you were hospitalized and unable to respond due to health reasons, or if your adversary falsely or negligently lead you to believe that you had additional time to respond to the complaint. Of course, this is not the universe of circumstances, and the situations in which the failure to timely respond to a complaint may be justified are numerous.
Alternatively, if the failure for you to timely respond to the complaint was your attorney’s fault, the court is required to set aside or vacate the default of default judgment if you attorney files an declaration with the court admitting to such fault or negligence.
Keep in mind, Courts are reluctant to uphold defaults when a justifiable excuse for timely failing to answer exists as California prefers that legal disputes be decided on their merits.
The time within which to set aside a default or default judgment on the basis of surprise, mistake, excusable neglect or attorney fault is six months from the date of the entry of the default or default judgment. However, this six month period does not apply in situations where you can establish that you were never actually served with the summons and complaint. In such circumstances, any default or default judgment entered against you is void and may be set aside at any time.
Even if you are ultimately unable to vacate or set aside a default judgment, there may be other available avenues for attacking the judgment. For example, if the default judgment entered against you exceeds the amount of damages claimed in the complaint, you can appeal the judgment. Likewise, if a default judgment includes punitive damages, but you were never served with a Statement of Damages, you can appeal the judgment.