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How to File a Motion to Set Aside a Default Judgment in California (CCP § 473) After Missing a Court Deadline

You can often set aside a California default judgment by filing a motion under CCP § 473 within 6 months of the default, default judgment, or dismissal. This remedy is commonly used when a party missed a court deadline due to mistake, inadvertence, surprise, or excusable neglect. This article explains eligibility, deadlines, required papers, service, and what to expect at the hearing—plus practical tips to improve your odds.

Understanding Default and Default Judgment in California

In California civil cases, a “default” typically occurs when a defendant fails to respond to a complaint on time (most commonly within 30 days after service of summons and complaint). Once default is entered, the defendant generally loses the right to file an answer or other responsive pleading unless the default is set aside. A “default judgment” is the court’s judgment after default—often awarding money, injunctive relief, or other remedies requested in the complaint (subject to important limitations).

If you missed a deadline and the plaintiff obtained a default or default judgment, California Code of Civil Procedure section 473 (CCP § 473) is one of the most frequently used pathways to ask the court to undo it. The key is moving quickly, presenting admissible evidence, and filing the correct set of documents.

CCP § 473 in Plain English: Two Main Paths to Relief

CCP § 473 provides two commonly invoked routes to set aside a default, default judgment, or dismissal:

1) Discretionary relief (mistake, inadvertence, surprise, or excusable neglect)

Under CCP § 473(b), a court may grant relief if you show the default or default judgment happened because of “mistake, inadvertence, surprise, or excusable neglect.” This is discretionary—meaning the judge weighs the evidence and decides whether your neglect was “excusable” under the circumstances.

2) Mandatory “attorney affidavit of fault” relief

Also under CCP § 473(b), if the default, default judgment, or dismissal was caused by an attorney’s mistake, inadvertence, surprise, or neglect, and the motion is accompanied by an attorney’s sworn affidavit (or declaration) admitting fault, the court generally must grant relief (subject to statutory requirements and exceptions). This mandatory provision is designed to protect clients from being penalized for counsel’s errors.

Even when mandatory relief applies, courts still expect a proper filing, a proposed responsive pleading, and timely service.

Critical Deadline: The 6-Month Rule (and Why You Should Act Sooner)

The most important time limit for CCP § 473(b) motions is this: the motion must be filed within a “reasonable time,” and in no event more than six months after the entry of the default, default judgment, or dismissal you are asking the court to vacate.

Two practical tips:

Calendar from the “entry” date shown on the court docket/register of actions, not the date you learned about it.
File as early as possible. Waiting until month five or six can raise “reasonable time” issues, even if you are technically within six months.

When CCP § 473 Is (and Isn’t) the Right Tool

CCP § 473 is a powerful remedy, but it isn’t universal. It commonly applies when:

You failed to file an answer after service and default was entered.
You missed an opposition deadline and suffered a terminating sanction or dismissal (depending on the circumstances).
Your lawyer calendared the deadline incorrectly or failed to act, and is willing to admit fault.

However, if more than six months have passed, you may need to evaluate other options (for example, equitable relief, lack of service/void judgment arguments, or other statutory procedures depending on the case posture). Also, if the issue is that you were never properly served, a motion attacking service/voidness may be more appropriate than (or in addition to) a § 473 motion.

What You Must File: The Typical CCP § 473 Motion Packet

While each county’s local rules and the judge’s preferences matter, a standard motion to set aside default/default judgment usually includes:

Notice of Motion and Motion

This tells the court what you want (e.g., “an order vacating entry of default and default judgment”) and identifies the hearing date, time, and department (once reserved, if required in your court).

Memorandum of Points and Authorities

This is your legal argument: why CCP § 473 applies, why the neglect was excusable (or why mandatory attorney-fault relief applies), and why the motion is timely.

Declarations (sworn statements)

Declarations provide the facts. The most persuasive motions usually include:

Client declaration describing what happened, what you understood, what steps you took, and when you learned of the default.
Attorney declaration (especially for mandatory relief) explaining the mistake and accepting responsibility.
Supporting declarations (paralegal, process server, office manager) if relevant to calendaring, mail handling, or service issues.

Proposed responsive pleading (often required)

Many courts expect the moving party to attach a proposed answer (or other responsive pleading) to show readiness to litigate on the merits. If you are seeking to set aside a default judgment, include the proposed answer and any cross-complaint if applicable (and procedurally proper).

Proposed order

A clean proposed order helps the judge grant relief efficiently (and reduces the chance of a continuance or request for additional paperwork).

Request for judicial notice (optional)

If you need the court to consider docket entries, prior orders, or filed proofs of service, a judicial notice request may help organize the record.

Showing “Excusable Neglect”: What Judges Commonly Look For

For discretionary relief, the central question is often whether a reasonably prudent person under similar circumstances might have made the same mistake. Strong motions typically do the following:

Explain the missed deadline with specifics (dates, communications, what went wrong).
Show diligence after discovering the default (immediate attempts to retain counsel, obtain the court file, contact opposing counsel, and prepare the motion).
Demonstrate a potentially meritorious defense (not always a formal requirement, but practically important). Judges are more receptive when it appears the case should be decided on the merits.

Examples of fact patterns that may support relief

Calendaring error: A self-represented defendant misread the summons date, or counsel’s staff entered the wrong response deadline.

Medical or family emergency: A documented hospitalization or sudden emergency prevented timely action, coupled with prompt action once stabilized.

Service confusion: Papers were received by the wrong person at a business address, and management did not learn of the lawsuit until after default—supported by internal mailroom procedures and timelines.

Examples that may hurt a § 473 motion

Courts are less sympathetic to vague explanations (“I was busy”), extended delay after learning of the default, or a pattern of ignoring court notices. If the neglect looks more like conscious indifference than an understandable mistake, discretionary relief is harder to obtain.

Mandatory Attorney-Fault Relief: How to Use It Correctly

If an attorney’s mistake caused the default or default judgment, mandatory relief can be the most direct route—but only if done correctly. Key points:

Get a clear attorney declaration admitting fault. Courts look for an unequivocal admission that counsel’s mistake/neglect caused the default.
File within six months of entry of default/default judgment/dismissal.
Be prepared for terms. Even when relief is granted, the court can impose conditions, including paying the opposing party’s reasonable attorney’s fees and costs caused by the default.

Clients often worry that an attorney-fault declaration is “throwing the lawyer under the bus.” In practice, it can be a strategic mechanism to restore the client’s day in court while reserving any malpractice issues for another forum (if they ever arise).

Step-by-Step: How to File the Motion in California

Step 1: Confirm what was entered (default vs. default judgment)

Pull the register of actions and identify the exact entries and dates. You need to know whether you are moving to vacate: (1) entry of default; (2) default judgment; or (3) both.

Step 2: Calculate the deadline and pick a hearing date

Work backward from the six-month outer limit. Then check local rules for reservation requirements and motion cutoffs. California motion practice also has specific notice and service timing rules, and the timeline can change depending on the service method (personal service vs. mail vs. electronic service where authorized).

Step 3: Draft the motion with admissible evidence

Your declarations should be detailed, chronological, and attached to exhibits when possible (emails, letters, medical records with proper foundation where appropriate, proof of service issues, etc.). Avoid conclusions; provide facts.

Step 4: Attach the proposed answer (or responsive pleading)

Courts want to see you are ready to participate immediately if relief is granted. A bare request to “let me file something later” is less persuasive.

Step 5: File and serve properly

File with the correct court and serve all parties who have appeared (and, depending on posture, other required recipients). Use a proper proof of service. If the plaintiff is represented, serve counsel of record.