1The topic of this issue of the newsletter is filing a motion to vacate a default and/or default judgment in California under

California Code of Civil Procedure 473.5 on the grounds that the service of the summons and complaint did not result in actual notice to them in time to defend the lawsuit, and that their lack of actual notice was not caused by their avoidance of service or inexcusable neglect. In the right situations, filing a motion under Section 473.5 is very useful as the time limit for filing a motion under Section 473.5 is substantially longer than the six months allowed by Section 473. Many attorneys and other legal professionals are not aware of Section 473.5 and are under the impression that after six months there is nothing that can be done to vacate a default judgment. That is not always true, particularly if the defendant was not personally served. California Code of Civil Procedure 473.5 states in pertinent part that: When service of a summons has not resulted in actual notice to a party in time to defend the action and a default or default judgment has been entered against him or her in the action, he or she may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action. The notice of motion shall be served and filed within a reasonable time, but in no event exceeding the earlier of: (I) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.", and "Upon a finding by the court that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect, it may set aside the default or default judgment on whatever terms as may be just and allow the party to defend the action." There are many reasons that someone may not have received actual notice of a lawsuit, including the fact that substitute service may have been used at an address at which that person no longer lives, someone may have forgotten to give the defendant the summons and complaint, etc. The statutory provisions for substituted service must be strictly complied with, and the statutory conditions upon which such service depends will be strictly construed. This means that if substituted service has been used and the procedures were not strictly followed, then the Court will be much more likely to grant the motion to vacate. And the substituted service must be made at the address where the defendant currently lives, even service made at a close relatives house can be ineffective. Substituted service to estranged wife's parents' address in action against husband and wife for breach of restaurant equipment lease was ineffective despite parents' address appearing on her driver's license where wife had established separate legal household. See Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1416-1417. When substituted or constructive service is attempted, strict compliance with the letter and spirit of the statutes is required. See Stern v. Judson (1912) 163 Cal. 726, 735. And a plaintiff has to first attempt to personally serve a defendant with the summons and complaint before attempting substituted service, or any other form of what is called constructive

service including service by publication. Personal service remains the method of choice under the statutes and the constitution. See Olvera v. Olvera, 232 Cal.App.3d 32, 41. In order to qualify for relief from default and/or judgment under Section 473.5 the moving party must show that they: (1) timely moved the Court for relief from default and/or judgment, (2) did not receive actual notice of the lawsuit in time to defend the action, (3) make a sufficient showing that their lack of actual notice was not due to avoidance of service or inexcusable neglect, (4) and provide a copy of their proposed pleading along with their motion. Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them. Numerous decisions of the California Supreme Court have stated that the law favors disposing of cases on their merits, and that any doubts must be resolved in favor of the party seeking relief from default. The California Supreme Court has also stated that when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. It is the policy of law to favor, whenever possible, a hearing on the merits. Appellate courts are much more disposed to affirm an order when the result is to compel a trial on the merits than when the default judgment is allowed to stand. Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default. See Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479. Because the law strongly favors trial and disposition on the merits, any doubts must be resolved in favor of the party seeking relief from default. See Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. And a California Court of Appeal stated that, Thus, section 473.5 reflects the understanding that if any form of service of summons does not result in actual knowledge, fundamental fairness may require that a subsequent default be set aside. See Olvera v. Olvera, supra at 40. The use of a motion under Section 473.5 in the proper situations can be very advantageous. If you enjoy this newsletter, tell others about it. They can subscribe by visiting the following link: http://www.legaldocspro.net/newsletter.htm Have a great week and thanks for being a subscriber. Yours Truly, Stan Burman The author of this newsletter, Stan Burman, is a freelance paralegal who has worked in California litigation since 1995. The authors website: http://www.legaldocspro.net

View numerous sample document sold by the author: http://www.scribd.com/legaldocspro 2012 Stan Burman. All rights reserved. DISCLAIMER: Please note that the author of this newsletter, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this newsletter is NOT intended to constitute legal advice. These materials and information contained in this newsletter have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this newsletter is not intended to create, and receipt does not constitute, any business relationship between the sender and receiver. Subscribers and any other readers should not act upon this information without seeking professional counsel.