How to Respond to a Motion to Set Aside Judgment in an Unlawful Detainer Eviction in California

What happens when you, the landlord, receive a default judgment against a tenant in California, and then the tenant decides to file a request to set aside the default judgment? You are surprised, because you thought you already won the case. We can help.

The court may set aside the default judgment against the tenant if:

  • The default was obtained by fraud
  • The default was due to the fault of the attorney
  • The default was due to the mistake, inadvertence, surprise or excusable neglect of the party under Code of Civil Procedure 473(b)
  • The defendant never received actual notice of suit under Code of Civil Procedure 473.5

Code of Civil Procedure 473 also allows the court to set aside a default judgment that is void as a matter of law.

There is a timeframe from which the tenant must make the motion to set aside the default judgment. Normally, it is 6 months from entry or default or default judgment. In reality, though, a tenant will file a motion to set aside judgment very soon after a landlord options a default, and while the tenant is still in possession of the property. The reason being, once the tenant is locked out by the sheriff, the tenant has little incentive to try and set aside the judgment. On the other hand, while the tenant is still in possession, and before the sheriff conducts the lockout, the tenant may try to set aside the judgment in order to remain in possession of the property longer.

If a tenant makes a motion to set aside a default judgment, the landlord should immediately oppose the motion to set aside the default. In addition, the landlord should argue that the setting aside of a default be conditioned on payment of all rent into court, for the period from when the eviction could have been obtained on the default judgment through trial. The landlord should also insist that the default be reinstated if the tenant fails to pay.

Read David Piotrowski’s “Landlord Best Practices and Eviction Overview” book. If you need help with an eviction in Los Angeles county, Ventura, Santa Barbara, San Diego, or San Francisco, contact us today.

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This article is courtesy of the Law Office of David Piotrowski, a California law firm representing landlords with eviction matters.

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The Law Office of David Piotrowski

represents California landlords.

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