Setting Aside a Default Judgment in California
Full Question:
Answer:
If the tenant does not file a written response to the landlord's complaint, the landlord can ask the court to enter a default judgment against the tenant. The tenant then will receive a notice of judgment and writ of possession.
There are various reasons why a tenant might not respond to the landlord's complaint. For example, the tenant may have received the summons and complaint, but was not able to respond because the tenant was ill or incapacitated, or for some other justified reason. It is sometimes the case that the tenant was never served with the landlord's summons and complaint. In situations where the tenant has a justifiable reason for not responding to the landlord's complaint, the tenant can ask the court to set aside the default judgment.
Setting aside a default judgment can be complicated. Typical defenses used include, among others, the tenant's (or the tenant's lawyer's) mistake, inadvertence, surprise, or excusable neglect. A tenant who wants to ask the court to set aside a default judgment must act promptly. The tenant should be able to show the court that he or she has a satisfactory excuse for the default, acted promptly in making the request, and has a good chance to win at trial. A tenant who thinks that grounds exist for setting aside a default judgment should first seek advice and assistance from a lawyer, a legal aid organization, or a tenant organization.
One of the most common types of interlocutory applications is an application to have default judgement set aside. A default judgement is one which has been entered where a defendant has failed to take an essential step within the time prescribed by the court rules, such as failing to file a defense in the Court. To have default judgement set aside a defendant applies to the court and provides affidavit evidence which sets out the reason for the default and shows that they have an arguable defense. While it is relatively easy to have default judgement set aside the court will usually order that the defaulting party pay the other side's costs of the motion and the costs caused by having a default judgement entered.
