My response:
If I were you, I'd hot tail it to a law library for the exact example of a Motion to Set Aside Default I would need, or to an attorney. This is not something you're more than probably not going to be able to do, or handle, on your own unless you are familiar with the Court Rules and laws of Procedure. Read the following and, if you can't understand it, then get to an attorney.
Good luck to you.
IAAL
Motion to set aside default judgment coupled with motion to quash:
If the defendant did not get actual notice of the proceedings in time to file a motion to quash, he may move the court to set aside the default and any judgment entered thereon. [Ca Civ Pro § 473.5 (Or, the motion to set aside may be based on "mistake, inadvertence, surprise or excusable neglect" under Ca Civ Pro § 473(b))
Setting aside the default judgment will not, of course, resolve any jurisdictional objections. Hence, defendant will have to file a motion to quash concurrently with his or her motion to set aside the default judgment. If the court finds ground to set aside the judgment, it can proceed directly to rule on the jurisdictional issues raised by the motion to quash. [Ca Civ Pro § 418.10(d)]
Time limits:
But there are time limits on moving to set aside a judgment. If based on lack of notice, such motion must be made within 2 years after entry of the default judgment. If based on "mistake, inadvertence, surprise or excusable neglect," within 6 months after entry of the default (not the default judgment).
Relief Under Ca Civ Pro § 473.5 for "Lack of Actual Notice":
Where service of summons has not resulted in actual notice to a party in time to defend the action, the court is empowered to grant relief from a default or default judgment. [Ca Civ Pro § 473.5]
This section is designed to provide relief where there has been proper service of summons but defendant nevertheless did not find out about the action in time to defend. Typically, these are cases in which service was made by publication. [See Randall v. Randall (1928) 203 Cal. 462, 464-465, 264 P 751, 752]
Ground for relief:
A defendant is entitled to relief under Ca Civ Pro § 473.5 if he or she has not received actual notice of the proceedings. Imputed or constructive notice is not "actual" notice (see Ca Civil § 18). [Rosenthal v. Garner (1983) 142 Cal.App.3d 891, 895, 191 Cal.Rptr. 300, 302]
If the summons was not properly served, the judgment would be void, and can be set aside at any time
• Improper service of summons. However, substantial compliance with the service of summons statutes is sufficient to defeat a motion under Ca Civ Pro § 473(d). [Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313, 78 Cal.Rptr.2d 892, 903]
If the court finds that the motion was timely made and that defendant's lack of notice was not due to his or her avoiding service or inexcusable neglect, it may set aside the default judgment and permit trial on the merits. [Ca Civ Pro § 473.5(c)]
Conditions may be imposed:
The court is empowered to grant such relief "on such terms as may be just" . . . i.e., it may impose costs, attorney fees, or other conditions to remedy any unfairness to the plaintiff in setting aside the default judgment. [Ca Civ Pro § 473.5(c)]
A motion to set aside the default or default judgment must be served and filed within 60 days after defendant first receives notice of any procedure to enforce the judgment (e.g., levy of writ of execution). [Ca Civ Pro § 585.5(b)]
Normal rules for filing and serving motions apply. An affidavit is required, showing the action was improperly served; e.g., there was no "Notice and Acknowledgment of Receipt." A copy of the proposed answer or other responsive pleading to the Complaint must be included.
