A default may be entered against a defendant in an eviction case if the defendant does not respond to the initial Summons and Complaint within the time specified in the Summons. Cal. Code of Civ. Procedure §§585-587.5. In an Unlawful Detainer (Eviction) case, the deadline for the tenant to respond to the Summons is very short - five days, not counting Saturdays, Sundays or holidays. Cal. Code of Civ. Procedure §1167(a).
Once a tenant fails to respond to the Summons and Complaint before the five-day deadline, a landlord may quickly obtain a default judgment in the landlord's favor and obtain a judgment for immediate possession of the property. For that reason, a tenant who learns that they are in default must act quickly to avoid being evicted - especially in cases where the tenant did not receive actual notice of the Summons and Complaint or court date. Begin by trying to get help if possible. See the box Getting Legal Help with Eviction below.
1. If you missed the deadline to file an answer in response to the Summons, but the plaintiff (landlord) has not yet obtained a default judgment, immediately contact the landlord or landlord's attorney and ask for an extension of time to respond. If the landlord agrees to an extension of time, prepare a Stipulation (written agreement) signed by you and the landlord (see sample Stipulation below).
2. Prepare an Answer using form UD-105.
3. File both the Answer and the Stipulation with the Court.
1. Get Legal Help if Possible. If you missed the deadline to respond and the landlord has obtained a default judgment, you must act quickly to avoid eviction. You should strongly consider contacting a free legal aid organization or hiring an attorney to help you with a response.
2. First, Ask the Landlord to Withdraw the Default. If the summons was improperly served and/or or you did not receive actual notice of the lawsuit, contact the landlord or the landlord's attorney before you file a motion to set aside the default. With proof that you did not receive notice, you may be able to convince the landlord/landlord's attorney to withdraw the default and provide you with an extension of time to answer the complaint. See below for a sample Stipulation to Set Aside Default to use if you reach an agreement. If you cannot reach an agreement move on to step 3.
3. Request a Hearing Date. Begin by calling the Law and Motion Line at San Diego Superior Court at 619-450-7371 during the Court's business hours. Have your case number ready and follow the instructions in the recording. This reserves your hearing date and time, but the court will not hear your case unless you file and serve the right paperwork. In your message leave your name, case number, type of hearing (Motion to Vacate a Default Judgment, and Ex Parte Application), your role in the case (Defendant) and a phone number where you can be reached. Include whether you have received a notice to vacate from the Sheriff with a lockout date, and that you are requesting the soonest available motion hearing.
4. Prepare Your Motion. To move to set aside a default, you must prepare the following documents: Notice of Motion, Memorandum of Points and Authorities, Declaration, an Answer using form UD-105, and Proposed Order. In most eviction cases you will also need an Ex Parte Application for an Order Shortening Time, to have the motion heard prior to being evicted. For the ex parte application you can use San Diego Superior Court Form ADM-252. You will also need to pay a filing fee or request a Fee Waiver. See below for modifiable samples of the motion documents and ex parte application form. There are four grounds (reasons) that allow the court to set aside a default: mistake, inadvertance, surprise, or neglect. Cal. Code of Civ. Procedure §473(b). The default can also be set aside based on lack of actual notice to the tenant, as long as the lack of notice was not due to the tenant's avoidance of service. Cal. Code of Civ. Procedure §473.5. You must be able to argue that one of these grounds applies in your case to ask for relief from default.
5. If a writ of possession has been granted in your case, you should include language in your motion asking that the writ of possession also be quashed or vacated along with the default judgment. A writ of possession is a document prepared by the court and provided to the Sheriff that authorizes the Sheriff to physically remove a tenant from the property if the tenant does not leave on their own within five days. Cal. Code of Civil Procedure §715.020.
For more information about the procedures for copying, filing and serving the Motion to Set Aside the Default once you have prepared the documents, see the Jurisdiction and Procedure tab of this guide.
Use this Stipulation ONLY if your landlord has agreed to withdraw the default, and file the Stipulation along with an Answer (see UD-105 form below). If your landlord has not agreed to withdraw the default, use the sample documents below to ask the court to set aside the default.
Use this template to draft your own Declaration. You will want to add your own facts to make this very specific to your situation.
Use this template to draft your own Order. Do your own research to ascertain whether you wish additional relief.
*Please see the Jurisdiction and Procedure tab for additional information regarding the proposed order.
If you have an eviction date coming up quickly, you must also prepare an Ex Parte Application for an Order Shortening Time (i.e., to set an earlier hearing date for your motion to avoid eviction). You can use San Diego Superior Court Form ADM-252 for the Ex Parte Application. File this application together with your motion papers. For more information about the law and procedure for ex parte applications, see this guide on Ex Parte Applications.
