![]() ![]() This lack of knowledge cannot be caused by the defendant’s inexcusable neglect or avoidance of service. “Actual notice” means the party genuinely does not know of the litigation, so to show a lack of actual notice a defendant would need to demonstrate to the court that he or she lacked knowledge that the lawsuit existed. Party not given actual notice in time to defend ( CCP § 473.5 ):Įven if service of the summons is proper, sometimes it does not result in “actual notice” to a party in time to defend their case. Typically, in the day-to-day handling of these motions, the court does not focus on whether a problem is a “mistake” or “inadvertence” or “excusable neglect,” but rather looks at what went wrong, and whether it is reasonable under the circumstances to relieve the requesting party from the judgment. ![]() Surprise occurs when a party is placed in an injurious legal situation, through no fault or negligence of his or her own, that ordinary prudence would not have guarded against. Ignorance of the law or negligence in researching the law does not generally constitute an excusable mistake, and therefore is not usually grounds for relief from a default however, the more confusing or obscure the critical fact or point of law that caused the default, the more likely it becomes the court will find the mistake to be excusable. A mistake of law occurs when a person knows the facts as they are, but has a mistaken belief as to the legal consequences of those facts.
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