Sample Ex-Parte Application to Vacate Judgment for California by LegalDocsPro

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This sample ex-parte application to vacate judgment for California is for use by a defendant in an unlawful detainer (eviction) lawsuit who wants the Court to vacate the default and judgment based on their mistake and surprise. The motion is made pursuant to Section 473 of the Code of Civil Procedure. The sample contains a memorandum of points and authorities, a sample declaration, a declaration regarding notice, and a proposed order.

The author is a freelance paralegal with over 15 years of experience in California civil litigation, including unlawful detainers and has used this sample for many years. Note that the author is NOT an attorney and no guarantee or warranty is provided.

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									 1   Any Defendant
     Any Street
 2   Any Town, CA 55555

 3   714-555-5555

 4   Defendant, In Pro Per

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 8                                  Superior Court of the State of California

 9                                  For the County of _________________

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11   Any Plaintiff,                                 )   Case No.
                                                    )
12                    Plaintiff,                    )   NOTICE OF EX-PARTE APPLICATION AND EX-
                                                    )   PARTE APPLICATION TO VACATE DEFAULT
13            vs.                                   )   AND DEFAULT JUDGMENT; MEMORANDUM
                                                    )   OF POINTS AND AUTHORITIES;
14   Any Defendant, and DOES 1-5                    )   DECLARATION OF ______________________;
                                                    )   EXHIBITS
15                    Defendants.                   )
                                                    )   DATE:
16                                                  )   TIME:
                                                    )   DEPT:
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20            TO PLAINTIFF:_________________________________ AND THEIR ATTORNEYS OF
21   RECORD:
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              PLEASE TAKE NOTICE THAT on ___________ at ___M., or as soon thereafter as
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     the matter can be heard, in Dept. _____ of the above-entitled Court located at ______________,
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     Defendant _____________________, will and does move the Court by ex-parte application for an

26   Order vacating the default entered on ______________, and the default judgment entered on

27   ___________ in the above-entitled case pursuant to Code of Civil Procedure § 473 on the grounds
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                                                     - 1 -
 1   that the default and default judgment were taken against said Defendant due to their mistake and

 2   surprise as more fully shown in the Declaration of _______________attached hereto and
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     incorporated herein by reference.
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            Be sure to modify these paragraphs to suit your individual situation. Do NOT just
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     use the wording here unless it definitely applies to your particular situation.
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 7          This ex-parte application will be based upon this Notice, the Memorandum of Points and

 8   Authorities in support thereof, the files and records of this case, the declaration of _____________
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     and Exhibits attached thereto, and such other and further oral and documentary evidence as may be
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     presented at the hearing.
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13   Dated: ________________                      __________________________________________
                                                  ANY PARTY
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                                                     - 2 -
 1                        MEMORANDUM OF POINTS AND AUTHORITIES

 2                                                    I.
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                                         STATEMENT OF FACTS
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            This case involves the real property located at _____________________ (“Property”).
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     Default was entered on _________, and a default judgment was entered on ____________.
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 7          When Defendant ___________________ was served with the summons and complaint he

 8   called the owner of the Property, Defendant , _____________ who told him that he was going
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     through a re-finance and loan modification and not to worry about anything. Based on this, Defendant
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     ______________ who speaks little English did not respond to the complaint.
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            Defendant contends that the default and judg
								
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