Helping Families for 25+ Years

Setting Aside a Judgment

There are a variety of ways to seek to set aside a default judgment taken against you. You should consult with an attorney to determine the best option available to you. It is important not to delay in seeking relief as it can be grounds for denying a request to set aside a judgment.

Grounds for Relief Under California Code of Procedure

The grounds for set aside of a default judgment are inadvertence, surprise, mistake or excusable neglect.

A “mistake” of fact occurs when a person understands the facts to be other than they are. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts. Ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake, and therefore is not usually ground for relief from a default; however, the more confusing or obscure the critical fact or point of law that caused the default, the more likely it becomes the court will find the mistake to be excusable.

“Inadvertence” and “excusable neglect” are practically synonymous, and are the most common reasons for a set aside. The person asking for the set aside must present sufficient evidence for the court to find that the inadvertence or neglect was excusable. To be excusable, the neglect must have been the act or omission of a reasonably prudent person under the circumstances.

“Surprise” occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against.

Typically, the court does not focus on whether a problem is a “mistake” or “inadvertence” or “excusable neglect,” but rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the requesting party from the judgment.

Time Limitation for Setting Aside for Inadvertence, Surprise, Mistake or Excusable Neglect

A motion to set aside must be made within a reasonable time not to exceed six months. In the absence of a good explanation for any delay the reasonable time standard has been interpreted by the Courts as being no longer than three months.

Family Code Limitation on Set Aside

The California Family Code states “a judgment may not be set aside simply because the court finds that it was inequitable when made, nor simply because subsequent circumstances caused the division of assets or liabilities to become inequitable, or the support to become inadequate.”

Family Code section 2123 states plainly that if a set aside motion is supported only by an imbalance of the division of community property, the trial court cannot grant the motion.

Setting Aside a Judgment Under California Family Code

Under the Family Code there are five exclusive grounds to set aside a judgment. Any action or motion to set aside such a judgment must be based on actual fraud, perjury, duress, mental incapacity, mistake or failure to comply with the disclosure requirements of the California Family Code. The time limits under the California Family Code are longer than the Code of Procedure, this allows litigants to pursue a set aside after the six month time period has passed.

It is important not to delay in filing for a set aside because any delay after discovering fraud could justify denial of request for relief. The grounds for set aside must be shown to have materially affected the original outcome.

To set aside a stipulated or uncontested judgment based upon “mistake” the mistake may be “either mutual or unilateral, whether mistake of law or mistake of fact. An action or motion based on mistake must be brought within one year after the date of entry of judgment.

Actual fraud” requires the defrauded party was kept in ignorance or in some other manner was fraudulently prevented from fully participating in the proceeding. An action or motion based on fraud shall be brought within one year after the date on which the complaining party either did discover, or should have discovered, the fraud.

An action or motion based on “perjury” must be brought within one year after the date on which the complaining party either did discover, or should have discovered, the perjury. The perjury must have taken place in the preliminary or final declaration of disclosure, the waiver of the final declaration of disclosure, or in the current income and expense statement.

An action or motion based upon “duress” shall be brought within two years after the date of entry of judgment.

An action or motion based on “mental incapacity” shall be brought within two years after the date of entry of judgment.

Failure to comply with the disclosure requirements of Chapter 9 (commencing with Section 2100). An action or motion based on failure to comply with the disclosure requirements shall be brought within one year after the date on which the complaining party either discovered, or should have discovered, the failure to comply.

Fiduciary Duty and Omitted Assets

Spouses owe each other a “fiduciary duty” during marriage, after separation, and even after judgment if community property has not been divided and continues until the asset(s) are divided and the party receives his or her community portion. This duty requires spouses to disclose all matters affecting the community estate. Failure to disclose an asset as a result of mistake or inadvertence can be grounds for set aside, typically only the part of the judgment affected by the asset will be set aside.

Intentional omission of an asset can be grounds for setting aside the judgment, and can result in a separate tort action for breach of fiduciary duty. The court has the power to award fifty to one-hundred percent of the asset’s value to remedy the concealment.