What is the test for a motion to vacate a default and set aside the default judgment?

California, United States of America


The following excerpt is from Isherwood v. Hyrosen Properties, Inc., 194 Cal.App.3d Supp. 33, 240 Cal.Rptr. 157 (Cal. Super. 1987):

A motion to vacate a default and set aside the default judgment is addressed to the sound discretion of the trial court, and will not be set aside in the absence of a clear showing of abuse of that discretion. (Lint v. Chisholm (1981) 121 Cal.App.3d 615, 619, 177 Cal.Rptr. 314.) All presumptions are made in favor of the trial court's order and the appellant's burden is to show abuse of discretion. (Id., at p. 620, 177 Cal.Rptr. 314.) We reject defendant's argument that the order denying defendant relief from default should be reversed because the court clerk did not comply with Code of Civil Procedure section 1013 1 in giving defendant notice of the trial date.

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