One of the big parts of litigating a case is doing Law and Motion practice. In a nutshell, this is the process the parties use to ask the court to make a decision. The process of asking is called “moving the court” for a particular decision or result, hence the term “motion practice.”
One kind of motion is called a Motion to Set Aside a judgement or order of some kind, including a default judgment. Under California state law, the governing statute is going to be Code of Civil Procedure section 473(b) which states as follows:
"The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. 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 against his or her client, and which will result in entry of a default judgment, 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. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310."
The bolded and underlined portion above summarizes the basic threshold that has to be met: the party seeking the set aside has to show the judgment or order resulted from their “mistake, inadvertence, surprise, or excusable neglect”. To prevail, the moving party must show that the facts satisfy at least one of those four categories. The precise method of how to do so is going to depend on the facts of each case.
The Motion to Set Aside exists under New York state law as well, although under two different statutes: (1) Civil Practice Law and Rules (CPLR) section 317, and (2) CPLR section 5015(a)(1). Section 317 Motions to Set Aside apply when actual notice on the defendant is an issue. Section 5015(a)(1) Motions to Set Aside are more similar to Code of Civil Procedure section 473(b) Motions to Set Aside in California. CPLR Section 5015(a)(1) provides the five grounds as:
- Excusable default of the moving party, subject to a one year time period,
- newly-discovered material evidence,
- fraud, misrepresentation, or other misconduct of the adverse party,
- lack of jurisdiction to render the judgment or order the moving party now seeks to set aside, or
- reversal, modification, or set aside of an order or judgment upon which the judgment or order being set aside now was predicated upon.
I generally do not practice in federal court, but if you have a civil case in federal court, the applicable rules for a set aside are Federal Rules of Civil Procedure 55(c), which authorizes a set aside, and 60(b), which lists the permissible reasons as a sort of hybrid of what California state and New York state laws require:
- mistake, inadvertence, surprise, or excusable neglect,
- newly-discovered evidence which could not have been discovered in time to be used previously,
- fraud, misrepresentation, or misconduct by the adverse party,
- the judgment being set aside is now void,
- the judgment no longer makes sense due to it being satisfied or discharged, a prior predicate judgment being reversed or vacated, or the judgment no longer being equitable, or
- any other reason that justifies relief.
Based on my experience, Motions to Set Aside are not difficult for lawyers to do, but may be difficult for non-lawyers to do, especially if the non-lawyer is doing the Motion to Set Aside for the first time. If your situation does require a Motion to Set Aside, I would highly recommend you consult an attorney for help, if even just for a consultation.
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