This sample motion to vacate a default judgment in California is made pursuant to Code of Civil Procedure Section 473 and is used by an attorney when their mistake, inadvertance, or neglect has resulted in a default, judgment or dismissal being entered against their client. This sample is ONLY for use by attorneys as it contains an attorney affidavit of fault. The sample motion on which this preview is based is 10 pages and includes a memorandum of points and authorities, sample declaration of attorney and proof of service by mail.

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Sample Attorney
155 Any Street
AnyTown, CA 55555
(909) 555-5555
Attorney for _____________
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Superior Court of the State of California
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For the County of ________________
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Sample Plaintiff,
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Plaintiff,
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v.
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Sample Defendants,
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Defendants.
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____________________________________)
CASE NO.
NOTICE OF MOTION AND MOTION
TO VACATE DEFAULT AND
DEFAULT JUDGMENT;
MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION
OF __________________________
EXHIBITS
DATE:
TIME:
DEPT:
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address. Be sure to remove this notice and all other notices before
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using this document.
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- 1 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

2. TO PLAINTIFF ___________________________________ AND THEIR ATTORNEYS OF
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RECORD:
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PLEASE TAKE NOTICE THAT on _____________________, at ________, or as soon after
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that as the matter can be heard, in Dept. _______of the above-entitled Court located at
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____________________________________________, Defendant,____________________ will
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move the Court to set aside the Default that was entered against her on ___________________ , the
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Judgment that was entered against her on ________, and granting her leave to file her Proposed
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Answer, a copy of which is attached as Exhibit "1” to the Declaration of ______________________.
The Motion will be made under the provisions of Code of Civil Procedure Section 473 on the
ground that the Default and Default Judgment were taken against Defendant due to the inadvertence
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and excusable neglect of her counsel, ________________________, as more fully set forth in the
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Declaration of ________________________, and the Exhibits attached thereto, attached hereto and
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incorporated herein by reference.
The Motion shall be based upon this notice, the attached Points and Authorities in
support thereof, the files and records of this case, and the Declaration of __________________,
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and the Exhibits attached thereto, attached hereto, and on such other and further oral and/or
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documentary evidence as may be presented at the hearing on this Motion.
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Dated________________
_______________________________________________
ANY ATTORNEY OR PARTY
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- 2 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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MEMORANDUM OF POINTS AND AUTHORITIES
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STATEMENT OF FACTS
Plaintiffs filed suit against Defendant on or about ___________ alleging: Add
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brief facts regarding the lawsuit such as breach of contract, etc.
See
Plaintiffs complaint on file.
Default was entered against Defendant on _______________. A Default Judgment
was entered against Defendant on _______________.
Put in the dates for each one, you can get the dates from the Court
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clerk.
Counsel for Defendant, ____________________ has submitted a sworn declaration that
the Default and Default Judgment were taken against Defendant as a result of their inadvertence and
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excusable neglect. See the Declaration of _______________________ and Exhibits attached thereto
filed and served concurrently and incorporated herein by reference.
1_________________ failed to timely file a response to the complaint due to the fact that his
wife had recently passed away suddenly, in _________________, and he was going through great
emotional turmoil, that, and the fact that personnel changes at his law offices caused a miscalendaring
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to occur, and subsequently he failed to timely respond to the complaint. See the declaration of
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_____________________, attached hereto and incorporated herein by reference which clearly shows
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the failure to appear was a result of inadvertence and neglect.
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- 3 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

4. You need to state the facts that pertain to your particular
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situation such as failure to respond was due to death in family, medical
emergency, another pending case, etc.,
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You need to state the facts as to exactly when you found out a
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Judgment or Default had been entered against your client. Do not just
use the wording from this sample for this paragraph.
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Defendant denies all of the allegations of Plaintiff's complaint and contends that she is
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not responsible for Plaintiff's damages. Counsel for Defendant has prepared a Proposed Answer, a
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copy of which is attached as Exhibit "1" to the Declaration of __________________________,
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attached hereto and incorporated herein by reference.
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II.
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LEGAL ARGUMENT
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A.
THE COURT HAS THE POWER TO SET ASIDE THE DEFAULT AND DEFAULT
JUDGMENT THAT WERE ENTERED AGAINST THE DEFENDANT
Code of Civil Procedure Section 473 states in pertinent part: “1Notwithstanding 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
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affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting
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default entered by the clerk against his or her client, and which will result in entry of a default
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judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the
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- 4 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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court finds that the default or dismissal was not in fact caused by the attorney’s mistake,
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inadvertence, surprise, or neglect..”
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To view the sample document on which this preview is based visit:
1 http://www.scribd.com/doc/31700428/Sample-Motion-to-VacateCalifornia-Default-Judgment-with-Attorney-Affidavit-of-Fault
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- 5 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT

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court finds that the default or dismissal was not in fact caused by the attorney’s mistake,
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inadvertence, surprise, or neglect..”
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To view the sample document on which this preview is based visit:
1 http://www.scribd.com/doc/31700428/Sample-Motion-to-VacateCalifornia-Default-Judgment-with-Attorney-Affidavit-of-Fault
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- 5 NOTICE OF MOTION AND MOTION TO VACATE DEFAULT AND DEFAULT JUDGMENT