MOTION TO SET-ASIDE
COURT JUDGMENT

(Information provided is not legal
advice. Please seek formal legal counsel)

An experienced family law firm may prepare and file a motion to set-aside a court judgment, if your back child support is based upon an invalid Court Judgment.

(e.g., you were never properly served with Court papers, and/or the Judgment was entered without your having been to Court), all or a portion of the debt can be wiped-out if the Judgment is set-aside.

Grounds for Relief:

California Code of Civil Procedure sections 473(b) and 473.5 specify the grounds on which you can base a motion for relief of default or default judgment.

Permitted grounds include:

Mistake (CCP 473(b)):

A mistake of fact occurs when a person understands the facts to be other than they are.

A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts.

Ignorance of the law or negligence in researching the law does not constitute excusable mistake, and therefore is not grounds for relief from default.

Inadvertence (CCP 473(b)):

Inadvertence stems from a lack of attentiveness, inattention, or fault from negligence.

However, mere inadvertence does not warrant relief unless, on consideration of all the evidence, the inadvertence is excusable.

Forgetting about the case or mislaying the summons and complaint are not sufficient grounds for relief. Inadvertence is often combined with excusable neglect.

Surprise (CCP 473(b)):

Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

Excusable Neglect (CCP 473(b)):

To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances.

Forgetting about the lawsuit, being too busy to properly respond, or being unable to afford an attorney are not grounds for excusable neglect.

Examples of excusable neglect include:

• Illness that disables the party from responding or appearing in court
• Failure to respond because you relied on your attorney to do so
• Failure to appear at trial because you relied on misinformation provided by a court officer

Party not given "actual notice" in time to defend (CCP 473.5):

If service of the summons did not result in "actual notice" to a party in time to defend their case, the default may be set aside. "Actual notice" means the party genuinely knows of the litigation.

Lack of actual notice cannot be caused by the defendant's inexcusable neglect or avoidance of service.

FAMILY CODE SECTION 2120 -2129
Setting Aside Judgment in Dissolution, Legal Separation and Nullity of Dissolution:

Actual fraud: 1 year from discovered/should have discovered

Perjury: 1 year from discovered/should have discovered

Duress:  2 years from discovered/should have discovered

Mental incapacity: 2 years from date judgment entered

Mistake of law or fact in stipulated or uncontested judgment: 1 year from date of entry of judgment

Failure to do disclosure: 1 year from date moving party discovered/should have discovered failure to comply with disclosure

2120(b) and (c)– nondisclosure or other misconduct of party making property/debt division inequitable or making support orders insufficient

Must show facts alleged as grounds for set aside materially affect original order and moving party would materially benefit from set aside.

Time for filing

Different time limitations apply depending on the ground(s) you will be claiming. Motions must be filed:

• Within 6 months after entry of default on grounds of mistake, inadvertence, surprise or excusable neglect
• Within 2 years of the default judgment if service did not result in actual notice in time to defend
• Within 180 days if you are served notice of the entry of default judgment, but had no actual notice in time to defend the original case

Judgment Collection Attorney, Lawyer
Los Angeles & California Enforcement.