§7.02 Motion to Vacate—By Improperly Served Defendant

If the defendant was not properly served and did not appear at the small claims hearing, he or she may file a motion to vacate the judgment. The motion must be accompanied by a supporting declaration and must be filed within 180 days after the defendant discovers or should have discovered that judgment was entered against him or her. [CCP §116.740(a); see form SC-135.]

You may suspend enforcement of the judgment pending a hearing on the motion to vacate. [CCP §116.740(b).] If you so order, an appropriate order must be served on the officer holding the writ.

On a showing of good cause, you may grant the motion to vacate. If the plaintiff is not present, you must still hear the motion in the plaintiff’s absence. [CCP §116.740(c).] If you grant the motion and all the parties are present and agree, you may immediately hear the underlying case. If the plaintiff is not present at the motion hearing, the case must be rescheduled and notice given. [CCP §§116.730(d), 116.740(d); see §2.07.]