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Motion Practice – Motion to Set Aside

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:

  1. Excusable default of the moving party, subject to a one year time period,
  2. newly-discovered material evidence,
  3. fraud, misrepresentation, or other misconduct of the adverse party,
  4. lack of jurisdiction to render the judgment or order the moving party now seeks to set aside, or
  5. 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:

  1. mistake, inadvertence, surprise, or excusable neglect,
  2. newly-discovered evidence which could not have been discovered in time to be used previously,
  3. fraud, misrepresentation, or misconduct by the adverse party,
  4. the judgment being set aside is now void,
  5. 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
  6. 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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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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