by Stan Burman
Vacating a void judgment in California is authorized by the provisions of Code of Civil Procedure section 473(d).
Vacating a void judgment in California can allow a defendant against whom a void judgment has been entered to have the judgment vacated so that they can have their day in court.
Several reasons can render a judgment void as a matter of law including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.
Code of Civil Procedure section 473(d) states that,
"The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
I want to stress that in order to obtain relief under Code of Civil Procedure section 473(d), the judgment must be considered a void judgment, and not merely a voidable judgment.
"A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.
A judgment is void if the court lacked jurisdiction over the subject matter or parties, for example, if the defendant was not validly served with summons.
If a judgment is in fact void on its face, there is no time limit mentioned for a party to file a motion to set aside the void judgment.
Two year time limitation for filing a motion to vacate a void judgment in California based on lack of proper service.
However it should be noted that a well known California legal treatise has stated that there is a two year time limitation for filing a motion to vacate a void judgment in California based on lack of proper service as even though section 473, subdivision (d), does not specify a time limitation on seeking relief, "[w]here a party moves under section 473, subdivision (d) to set aside `a judgment that, though valid on its face, is void for lack of proper service, the courts have adopted by analogy the statutory period for relief from a default judgment' provided by section 473.5, that is, the two-year outer limit. See (8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 209, pp. 814-815.
Another possible ground is that the plaintiff did not serve the statement of damages required in personal injury and death actions the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862, the court found the default improperly entered for failure to appear at trial.
Of course lack of or improper service of summons is generally the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.
The law in California is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.
Any other method of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required as has been stated by the California Supreme Court in a published case over 100 years ago.
The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.
A California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.
Lack of personal jurisdiction renders a default judgment void, so that it may be vacated at any time. Strathvale Holdings v. E.B.H. (2005) 126 Cal.App. 4th 1241, 1249, judgment was not affected by a nonresident's failure to bring a motion to quash.
Sample motion to vacate a void judgment in California for sale.
Attorneys or parties in California who would like to view a portion of a sample motion to vacate a void judgment in California can click below to view a sample 14 page motion including brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service that is sold by the author can see below.
Sample Motion to Vacate Void Judgment in California under Code of Civil Procedure section 473(d) by Stan Burman on Scribd
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DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
As an enthusiast deeply immersed in the field of California legal procedures, particularly the Code of Civil Procedure, I can confidently address the intricacies mentioned in Stan Burman's article published on December 24, 2016, regarding the process of vacating a void judgment in California.
The core legal instrument invoked in this context is the Code of Civil Procedure section 473(d). This provision empowers the court to correct clerical mistakes in its judgment or orders and, crucially, to set aside any void judgment upon motion by the injured party or the court itself. The emphasis here is on void judgments, not voidable ones.
Various circ*mstances can render a judgment void, including lack of subject matter jurisdiction, lack of personal jurisdiction, improper service of summons, improperly entered default, and a default judgment exceeding the amount demanded in the complaint.
The distinction between a void and a voidable judgment is pivotal. A judgment is void if the court lacked fundamental authority over the subject matter, question presented, or party. This can occur, for instance, if the defendant was not validly served with summons. The lack of proper service is a common ground for a judgment to be deemed void, with personal service being the preferred method.
Importantly, the article clarifies that there is no specified time limit for filing a motion to set aside a void judgment if it is indeed void on its face. However, when lack of proper service is the basis for seeking relief under section 473(d), a well-known California legal treatise suggests a two-year time limitation by analogy to section 473.5.
The article also highlights another potential ground for vacating a judgment—failure to serve the statement of damages required in personal injury and death actions. If such essential elements are not met, the judgment may be considered void.
The legal argument is reinforced by references to relevant case law, such as "In re Marriage of Goddard (2004)" and "Strathvale Holdings v. E.B.H. (2005)," which establish the principles of void judgments and the impact of lack of personal jurisdiction on default judgments.
To aid practitioners, the article even provides a link to a sample motion to vacate a void judgment in California, authored by Stan Burman. This comprehensive 14-page document includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, a sample declaration, and proof of service.
In conclusion, Stan Burman's article serves as a valuable resource for attorneys and parties involved in California litigation, offering a nuanced understanding of the legal nuances surrounding the vacating of void judgments under the provisions of Code of Civil Procedure section 473(d).
