In a divorce proceeding, imagine the judge asks each spouse to disclose their financial assets to assist her in deciding how their marital property should be divided. While the wife abides by the judge’s request, the husband intentionally conceals several bank accounts from her. Unaware of the husband’s deception, the judge proceeds to issue an order dividing the known assets.
A couple months later, the wife receives a bank statement in the mail that alerts her to the existence of several bank accounts her former husband had opened during their marriage but failed to disclose during divorce proceedings. Realizing that his misrepresentation caused an unfair outcome in court, the wife retains a family law attorney to file a motion to set aside the judgment.
Because there is evidence to suggest the husband intentionally misled the court, the wife’s motion is granted, leading the judge not only to nullify her prior court order, but to impose sanctions on the husband as well. In addition, the judge reopens the divorce proceedings so she can issue a new court order dividing the assets — this time with the husband’s previously undisclosed assets included.
It’s natural to feel disheartened when a lawsuit doesn’t go your way. However, as the motion to set aside example above demonstrates, court rulings, in narrow circumstances, can be overturned when the situation calls for it.
If you were involved in a case where exceptional circumstances resulted in an unfair ruling, it may be worth discussing your concerns with a qualified litigator to determine whether a motion to set aside a judgment could be used to overturn the court’s decision.
If you plan to file a motion to set aside, it’s important to remember the purpose of the motion, which is to ensure a fair and correct outcome is reached in court. In other words, if your sole reason for filing a motion to set aside is to have a court ruling voided on account of it being unfavorable to you, it’s unlikely your motion will be granted.
Provided that you know what a motion to set aside entails, when it’s appropriate to use and how to properly file it, it can serve as a powerful legal tool.
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What Is a Motion to Set Aside?
A motion to set aside formally asks the court to void or reverse its decision in a case so the case can proceed as though a decision had never been reached. Motions to set aside can only be filed on certain grounds, such as fraud, excusable neglect or improper service.
That said, it’s important to note that there is technically no such thing as a “motion to set aside” on its own. However, for the sake of simplicity, we will use this term to refer to a motion to set aside a judgment, which may also apply to default judgments, court orders and dismissals.
Whereas many motions are filed before trial or during trial, motions to set aside are generally filed post-judgment by the adversely affected party. They are governed by California Code of Civil Procedure section 473.
It’s important to remember that motions to set aside are only granted in exceptional circumstances. If the court were to make a habit of setting aside its decisions, the court system would become unreliable, and people may start to distrust it.
What Is a Motion to Set Aside a Judgment?
A motion to set aside a judgment formally asks the court to void or reverse its final resolution so the case can proceed as though a judgment had never been reached. It is what is called a post-judgment motion.
A final resolution leaves no decisions pending besides those surrounding how to enforce the resolution and whether to award legal costs. In a civil case, an example of a final resolution would be a judgment or dismissal with prejudice. In a criminal case, an example of a final resolution would be a conviction. It’s worth noting that a verdict is not a final resolution. Therefore, a case doesn’t conclude until the court enters a judgment, which takes place after the jury has reached a verdict.
It’s important to remember that a motion to set aside a judgment usually requires compelling legal justification because of the significant impact it will have on the case if granted.
What Is a Motion to Set Aside a Default Judgment?
A motion to set aside a default judgment formally asks the court to void or reverse a default judgment that was entered because one party didn’t participate in the case. If granted, this motion will allow the case to proceed as though a default judgment had never been entered and with both parties’ involvement.
A default judgment favors the party that is actively involved in a case. It is typically entered when a defendant fails to file a timely answer to a complaint or a plaintiff fails to file a timely response to a counterclaim.
Keep in mind that a motion to set aside a default judgment usually requires the adversely affected party to have missed the legal proceedings through no fault of their own, such as by not being properly notified or their attorney missing a deadline.
What Is a Motion to Set Aside an Order?
As previously mentioned, a motion to set aside a court order generally falls under the broader category of a motion to set aside a judgment. However, to highlight the subtle distinctions between a court order and a judgment, we will discuss motions to set aside orders separately.
A motion to set aside an order formally asks the court to void or reverse a specific ruling it made on an issue during a legal proceeding so the case can proceed as though the court order had never been issued.
5 Grounds for Filing Set-Aside Motions
It’s important to remember the court will closely scrutinize motions to set aside to ensure reopening a case is justified under the circumstances.
Reopening a case will not only require the parties to contribute additional resources to litigation, but it will require the court to as well. Additionally, if the court finds a party is filing a motion to set aside on invalid grounds, it could order the party to pay their opponent’s legal fees. For the reasons mentioned, it’s a good idea to consult with a qualified litigator before spending time and money on your set-aside motion to confirm your reasons for filing it are valid.
Put simply, for the court to consider your motion, there must be evidence to show the judgment reached was unjust or erroneous.
As noted previously, a party cannot file a motion to set aside solely on the basis of their dissatisfaction with the resolution, since one party is bound to be dissatisfied no matter what. For a party to reopen the litigation process, exceptional circumstances must exist.
What distinguishes exceptional circumstances from ordinary ones? We’ll do our best to clarify in the following sections, which cover five common grounds on which a party can file a motion to set aside.
1. Improper Service
A motion to set aside a default judgment due to improper service should be filed when a party’s failure to participate in a lawsuit or appear in court is due to their not having been properly notified of court proceedings. To ensure the judgment can be set aside, it is crucial for the adversely affected party to file their motion within a reasonable timeframe after learning of the judgment, which is usually six months.
Because both parties in a lawsuit have the right to participate in court proceedings and respond to their opponent’s claims or counterclaims, it is a violation of due process if one of those parties is deprived of this right due to the process server’s failure to abide by the established rules and requirements for delivering legal documents, otherwise known as improper service of process.
In general, when a party fails to respond or appear in court, the court will enter a default judgment in favor of the other party without considering the merits of the case. If the adversely affected party fails to file a timely motion to set aside the default judgment, they may have no choice but to abide by its terms.
Service may be considered improper if legal documents are delivered to the incorrect person or an incorrect address, or if deliveries aren’t verified. Service may also be considered improper if a party to the lawsuit delivers the legal documents instead of a disinterested third party. To protect themselves against potential accusations of improper service, the serving party should aim to maintain thorough records of every successful delivery and attempt at delivery.
According to Code of Civil Procedure section 473 (c) (1), if a court grants a motion to set aside a default judgment due to improper service, it could order the offending party or their attorney to pay up to $1,000 in penalties to the State Bar Client Security Fund, as well as impose other sanctions.
Suppose a creditor brings a lawsuit against someone for an unpaid debt. The process server delivers the legal documents to what they believe to be the defendant’s address, but in actuality, they serve a different person with the same name. In turn, they report the service as completed, and the case proceeds. Because the defendant fails to appear in court, a default judgment in favor of the creditor is issued. It isn’t until the defendant notices their bank account has been garnished that they learn of the judgment.
In this instance, it would be legally justified for the defendant to file a motion to set aside a default judgment due to improper service. If they can prove to the court that they did not live at the address where service of process was supposedly completed and were therefore unaware of the lawsuit, the court may grant their motion, giving them the opportunity to challenge the creditor’s claims.
2. Mistake, Inadvertence, Surprise or Excusable Neglect
A motion to set aside a default judgment due to mistake, inadvertence, surprise or excusable neglect should be filed when accidental or unforeseen circumstances prevent a party from participating in a lawsuit or appearing in court. To ensure a judgment can be set aside in such a case, it is crucial for the adversely affected party to file their motion within six months of the order, judgment or dismissal being issued.
It’s important to remember that the court will only set aside an order, judgment or dismissal due to mistake, inadvertence, surprise or excusable neglect if the adversely affected party can prove their error or oversight was unintentional. Unexpected life events, confusion about court protocols and clerical mistakes (e.g., typos, incorrect dates) are examples of the types of errors and oversights that may serve as grounds for filing a motion to set aside.
Suppose a business owner sues a vendor for breach of contract, but the vendor is adamant they did not commit the breach they’re accused of and drafts an answer to challenge the business owner’s claims. The vendor’s assistant proceeds to inadvertently file the answer with the wrong case number, resulting in the answer not being recorded for the correct case and a default judgment being entered against the vendor for their failure to respond. This is a shock to the vendor, who was under the impression they were actively defending the lawsuit.
In this instance, it would be legally justified for the vendor to file a motion to set aside the default judgment since their failure to respond was caused by an unintentional error by their assistant. Furthermore, their response could serve as proof of their good-faith attempt to defend the lawsuit. If the court agrees that their neglect was, in fact, excusable, it may grant their motion, providing them with an opportunity to properly defend the business owner’s claims.
3. Changed Circumstances
A motion to set aside a judgment due to changed circumstances should be filed when new facts or conditions have emerged in a family law case — such as ones dealing with spousal support, child support or child custody — that undermine the fairness of a prior court ruling. In family law, deadlines for filing motions to set aside are governed by California Family Code sections 2121 and 2122.
In most civil cases, it is required that motions to set aside be filed within six months of the order or judgment being entered. However, in some family law cases — particularly those involving child support or custody — courts may allow set-aside motions to be filed after the usual deadlines have lapsed, especially if there’s evidence of fraud, mistakes or a significant change in circumstances. When in doubt about deadlines, acting without delay and consulting with a knowledgeable litigator is always your best bet.
It’s important to note that changed circumstances generally only serve as a legal basis for setting aside a judgment in family law matters. For other types of civil matters, changed circumstances don’t typically entitle the adversely affected party to set a judgment aside.
Suppose a court issues an order requiring a husband to pay a specific amount in spousal support to his former wife. Later, he suffers a serious injury that leaves him bedridden. Because he can no longer work, he lacks the necessary income to meet his spousal support obligations.
In this instance, it would be appropriate for the husband to file a motion to set aside for spousal support, citing a significant change in his financial circumstances as his reason for the request. If he is able to provide proof of his changed circumstances — and how these changed circumstances render the prior court order unfair — the court may grant his motion, either amending it or nullifying it.
Keep in mind that family court may retain continuing jurisdiction over certain issues like support, visitation and custody. Therefore, even after a judgment has been entered, the court can typically revisit and change its orders without “setting aside” the entire original judgment.
4. Fraud, Misrepresentation or Misconduct
A motion to set aside a judgment due to fraud, misrepresentation or misconduct should be filed if a party believes a court ruling was secured through deceitful tactics or actions, such as falsifying, concealing or destroying evidence, or lying.
When fraud, misrepresentation or misconduct is present in a case, the court takes it very seriously, as it can lead to unjust outcomes and compromise the overall integrity of the legal process.
To ensure a judgment can be set aside on the basis of fraud, it is crucial for the adversely affected party to file their motion within six months from the date the alleged fraud was discovered or reasonably should have been discovered. That said, deadlines for setting aside judgments based on fraud can vary depending on the nature of a case, so it is advisable to either promptly file after discovering the fraud or consult with a knowledgeable litigator about the specific deadlines that may apply to your case.
There are two main types of fraud that could warrant setting aside a judgment. Extrinsic fraud takes place outside the courtroom. A party hiding evidence or bribing a juror to vote against their opponent could be regarded as extrinsic fraud. Conversely, intrinsic fraud takes place within court proceedings. A party tampering with evidence or perjuring themselves could be regarded as intrinsic fraud. It is generally more difficult to set aside a judgment on the basis of intrinsic fraud than extrinsic fraud, since intrinsic fraud could have been handled before the judgment was issued.
Suppose trust beneficiaries sue the successor trustee of a trust for misappropriation of trust assets, claiming the trustee withdrew funds from the trust on three separate occasions for personal use. In court, the trustee presents bank statements to prove they hadn’t made the withdrawals the beneficiaries had accused them of making, resulting in the court dismissing the case. Later, the beneficiaries come to find out the trustee had altered the bank statements to conceal the withdrawals.
Upon discovering the trustee falsified evidence, the beneficiaries file a motion to set aside the judgment, arguing that the trustee’s misrepresentation of trust assets influenced the court’s decision. In this instance, if the beneficiaries can prove the trustee committed fraud, the court may set aside its previous dismissal to reopen the case. It may even impose sanctions on the trustee.
5. Lack of Jurisdiction
A motion to set aside a judgment due to lack of jurisdiction should be filed if the court lacked the legal authority to issue a judgment in the first place. Personal jurisdiction refers to the court’s legal authority over the parties in a lawsuit. Subject matter jurisdiction relates to the court’s legal authority over the type of lawsuit. If a court lacks either type of jurisdiction, a judgment could be set aside on that basis.
It is important to note, however, that defects to personal jurisdiction may be waived if the party claiming lack of personal jurisdiction appears in or participates in the lawsuit, as they will have effectively submitted to the court’s jurisdiction over them. Because of this, most belated jurisdictional challenges to judgments involve subject matter jurisdiction.
Although it’s advisable to file a motion to set aside a judgment due to lack of jurisdiction as promptly as possible, there generally isn’t a strict deadline for filing a motion on this basis, since the judgment is considered void by default. That said, you should still aim to file within a reasonable timeframe after the judgment is entered to ensure there are no legal complications.
Suppose a small business owner in Nevada with no offices, clients or operations in California discovers that a default judgment was entered against him in a California court by a California-based clothing vendor, who was claiming that he breached his contract. The business owner was never properly served and had no meaningful contacts in California that would justify the court’s exercise of personal jurisdiction.
In this example, if the business owner were to file a motion to set aside a judgment after learning of the judgment from collection attempts, the court likely would grant his motion, since the California court that issued the judgment had no authority over the Nevada-based business owner.
What Is the Process for Filing a Motion to Set Aside?
Now that you understand the grounds for filing a motion to set aside, it’s important to familiarize yourself with the process. Although the process can vary slightly by jurisdiction, there are basic steps that almost always apply, not just to motions to set aside but to most motions.
Because of how complex and tedious the motion process can be, we advise against pursuing it on your own. Working with a skilled litigator can not only take the stress out of the motion process, but it can improve your chances of securing the outcome you desire.
1. Gather Evidence
As you already know, you must have valid grounds to file a motion to set aside a judgment. It’s important you get clear on what grounds you intend to file your motion so you’ll know what evidence to gather.
For example, if you are seeking to file a motion to set aside a default judgment due to improper service, a rental agreement or deed showing your new address and the date you moved in or took title could serve as evidence the process server delivered legal documents to your former address after you’d already moved, causing you to miss your court date.
It’s important to remember that the evidence you gather must be compelling, since it usually is what will determine whether your motion will be granted. An attorney can assist you with the evidence-gathering process.
2. Prepare, File and Serve the Motion to Set Aside
Once you have evidence to prove why a judgment is erroneous or unjust, you are ready to start drafting your set-aside motion.
The motion document should outline your grounds for requesting that the judgment be set aside, as well as cite evidence to support your arguments.
Next, you’ll need to prepare the notice of motion, which informs the other party that the motion has been filed and will be heard by the court. It should include the date, time, and location of the hearing, a summary of the motion, and the deadline for filing an opposition.
The final document you’ll need to prepare is a memorandum of points and authorities. It typically needs to include the facts of the case, arguments in support of the motion, and evidence to support each argument. Evidence can include everything from physical documents to case law and legal authorities. If you have physical documents, be sure to attach them to the memorandum. Also, make sure your memorandum does not exceed 15 pages.
When all your documents are in order, they can be filed and served. Remember, only a disinterested third party can serve the documents.
Keep in mind that if your motion is to set aside a default judgment, the court may require you to also attach an answer to the original complaint to signal your readiness to move forward with the case.
Remember, the deadline to file a motion to set aside is generally six months from the date the judgment was entered — although it is always best practice to file as early as possible.
3. Wait for the Other Party to Prepare, File and Serve their Opposition to the Motion to Set Aside
Once the other party is served the motion to set aside, they will have an opportunity to draft an opposition.
An opposition to a set-aside motion should outline why the prior judgment or order should remain intact and cite evidence to support these arguments. It should not exceed 15 pages. The opposition must be accompanied by a notice of opposition and memorandum of points and authorities.
Once all the opposition documents are ready, they should be filed and served. The deadline for filing and serving an opposition is at least nine court days in advance of the motion hearing.
4. Prepare, File and Serve a Reply to the Opposition
After the moving party has been served the other party’s opposition documents, they will have the choice to file a reply brief to address and refute their arguments.
Keep in mind that replies are completely optional; however, if you plan to enter one, it should be filed and served at least five court days in advance of the motion hearing.
Although doing so is not required, it can be helpful for the parties to meet and confer in advance of their motion hearing to potentially reach a resolution without court intervention.
5. Attend the Motion to Set Aside Hearing
Both parties will be required to attend the scheduled motion to set aside hearing. If they have legal counsel, they should accompany them to the hearing. It is crucial the parties appear at the correct courthouse and be punctual.
Before the judge rules on the motion, attorneys for both parties will be able to present oral arguments on behalf of their clients in favor of or against the judgment at issue being nullified or amended.
6. The Court Issues a Ruling
Once the court has thoroughly reviewed both parties’ documents and heard their oral arguments, it will issue a ruling on the motion.
If you believe the court erroneously denied your motion to set aside, it may be possible to appeal the ruling, but only under special circumstances. An attorney can provide personalized guidance as to whether or not the ruling in a set-aside motion hearing is appealable.
What Are the Potential Outcomes of a Motion to Set Aside?
There are many outcomes that are possible in a motion to set aside hearing. In the following sections, we’ll cover the most common potential outcomes and how they will affect your case.
Motion Is Denied
If a court determines the moving party’s grounds for seeking the set-aside motion are insufficient or unsupported, it will deny the motion, leaving the original judgment intact.
Although it may be possible to appeal denials of set-aside motions under special circumstances, it’s more likely the moving party will be required to comply with the terms of the judgment.
Motion Is Granted
If the court determines the moving party’s grounds for seeking the set-aside motion are sufficient and compelling, it will grant the motion, nullifying the original judgment.
Nullifying the judgment will allow the case to be reopened for further proceedings, potentially leading to a new or amended judgment.
Motion Is Partially Granted
If the court determines that only some of the moving party’s grounds for seeking the set-aside motion are sufficient and compelling, it may partially grant the motion, nullifying certain parts of the judgment and leaving other parts intact.
Partially nullifying a judgment generally results in the original judgment being amended.
Motion Is Continued
If the court determines it lacks the necessary documentation or information to issue a ruling on the set-aside motion, it may opt to continue the hearing on the motion, enabling the parties to present additional arguments or evidence in support of or against the motion at a future hearing date.
When a motion is continued, it generally means the court is delaying its ruling on the motion until it has more evidence.
How Do Motions to Set Aside Compare to Other Motions?
Motions to set aside a judgment can be similar in nature and scope to other motion types. However, there are important distinctions between the motions to be mindful of.
In the following sections, we’ll compare motions to set aside with similar motion types. By grasping the differences between the motions, you will be better equipped to file the right kind of motion for your case should the need arise.
Motion to Set Aside vs. Motion for a Directed Verdict
A motion to set aside and a motion for a directed verdict can both influence the outcome of a case. However, not only is the aim of each motion different, but they are filed during different phases of trial.
A motion for directed verdict asks the judge to issue a judgment without the case being sent to the jury for deliberation. It is only appropriate to file a directed verdict motion when the evidence in a case is so one-sided that no reasonable jury could decide the case in favor of the opposing party.
On the other hand, a motion to set aside asks the judge to nullify an order or judgment that’s already been issued because of exceptional circumstances, such as fraud, errors or jurisdiction issues.
A motion for directed verdict is made after the plaintiff and defendant rest their cases but before jury deliberation, whereas a motion to set aside is made after a final judgment has been issued.
Motion to Set Aside vs. Demurrer
A demurrer is filed in response to a complaint and asks the judge to dismiss an entire case or significant claims within a case. It argues that even if the facts of a case are undisputed, its claims are legally insufficient.
This is nothing like a motion to set aside, which asks the court to nullify its previously issued judgment due to exceptional circumstances.
A demurrer is typically filed by the defendant after the plaintiff has filed and served their complaint, whereas a motion to set aside is typically filed after litigation has ended and a final judgment has been issued.
Motion to Set Aside vs. Motion to Vacate
A motion to set aside and a motion to vacate are very similar in terms of what they aim to do, but they differ in grounds and applications.
Similar to a motion to set aside, a motion to vacate asks the judge to set aside a judgment or decree, when based upon a decision by the court or special verdict of a jury. However, the grounds on which a motion to vacate can be sought are significantly broader.
For example, a motion to vacate can be brought on substantive grounds in addition to procedural grounds. Substantive grounds may include an incorrect or erroneous legal basis for the decision that is inconsistent with or unsupported by the facts, or a judgment or decree being inconsistent with or unsupported by the special verdict. When a judgment is set aside due to an incorrect or erroneous legal basis for the decision, it is required for the statement of decision to be amended and corrected, according to California Code of Civil Procedure section 663.
It is common for motions to vacate to be filed after the deadline to file a motion to set aside has lapsed, making motions to vacate a sort of last-resort remedy to undo errors that may have compromised the fairness of a judgment and the legal process in general.
Motion to Set Aside vs. Motion for a New Trial
A motion to set aside and motion for a new trial are both post-judgment legal tools, but they differ in purpose.
A motion for a new trial asks the judge to schedule a new trial so the case can be reexamined in its entirety, typically because the moving party believes the original trial’s outcome was unjust due to the trial proceedings or evidence. For example, it would be legally justified to file a motion for a new trial if juror misconduct was suspected, or the jury reached an unreasonable verdict.
In contrast, a motion to set aside merely asks the judge to nullify a judgment because of exceptional circumstances that led to an unjust outcome. Rather than asking for a new trial, a motion to set aside seeks to return the case to its previous state so there can be a second chance at fair proceedings.
Whereas motions for a new trial call the merits of the trial outcome into question, motions to set aside are focused on examining issues that could have undermined the integrity of the trial process.
FAQs: Motions to Set Aside
If you were unable to find the answers to your questions in the content above, we encourage you to explore our frequently asked questions below. If you continue to have questions about motions to set aside or about navigating the motion process in general, our probate litigation firm can serve as a great resource. Fill out our contact form to get in touch.
Consult with a qualified litigator to determine whether a form is available for the set-aside motion you wish to file. If one is not available, you may need to prepare your motion from scratch or have your attorney prepare it on your behalf.
What is an ex parte motion to set aside a default judgment in California?
In an ex parte motion to set aside a default judgment, the defendant asks the court to nullify a prior default judgment that had been entered without the opposing party being present in court.
It’s worth mentioning that even if an ex parte motion to set aside a default judgment is granted, the plaintiff may later be able to oppose the motion and request a hearing.
Is the process for filing a motion to set aside a court order different from the process for filing a motion to set aside a judgment?
Although the process is not different, the court may be less rigid in granting a motion to set aside an order than it is in granting a motion to set aside a judgment, since an order is a small ruling within a case that generally is less impactful than a final judgment.
Can you file a motion to set aside a default judgment in a divorce proceeding?
Yes, a motion to set aside a default judgment can be filed in a divorce proceeding on the same grounds we discussed in this article.
Valid grounds for filing a set-aside motion include:
- Improper service
- Mistake, inadvertence, surprise or excusable neglect
- Changed circumstances (only applicable to family law matters)
- Fraud, misrepresentation or misconduct
- Lack of jurisdiction
Can you file a motion to set aside a default judgment in federal court?
Yes, a motion to set aside a default judgment can be filed in federal court. However, it is governed by Federal Rule of Civil Procedure 55 (c).
Can you file a motion to set aside a summary judgment?
Yes, a motion to set aside a summary judgment can be filed on the same grounds we discuss throughout this article. The motion must be filed within six months of the summary judgment being entered.
Still have questions about motions to set aside?
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