A judgment can be void as a matter of law for several reasons including, (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) lack of or improper service of summons, (4) default improperly entered, and (5) a default judgment exceeding the amount demanded in the complaint.
Code of Civil Procedure section 473(d) states that, "The court may, upon motion of the injured party, or its own motion, correct clerical mistakes in its judgment or orders as entered, so as to conform to the judgment or order directed, and may, on motion of either party after notice to the other party, set aside any void judgment or order."
It must be noted that in order to obtain relief under Code of Civil Procedure section 473(d), the judgment must be considered a void judgment, and not merely a voidable judgment.
"A court can lack fundamental authority over the subject matter, question presented, or party, making its judgment void, or it can merely act in excess of its jurisdiction or defined power, rendering the judgment voidable." In re Marriage of Goddard (2004) 33 Cal.4th 49, 56.
A California Court of Appeal has held that a judgment is void if the court lacked jurisdiction over the parties in cases where the defendant was not validly served with a summons.
If a judgment is in fact void, there is no time limit mentioned for a party to file a motion to set aside the void judgment.
Under Code of Civil Procedure section 473, subdivision (b), a motion to vacate a default and default judgment must be brought within six months of entry of the default judgment. Section 473, subdivision (d) allows a trial court to set aside a void judgment without mentioning a time limit. Lee v. An (2008) 168 Cal.App.4th 558, 563.
Note that the Court in Lee v. An ruled that the resulting judgment was voidable, not void. See below.
If the court has jurisdiction over the parties and subject matter but acts "in excess of its jurisdiction," its judgment is voidable, not void. The difference is that in order to set aside a voidable judgment, a party must act before it becomes final. Thereafter, the judgment may be entitled to res judicata effect. Lee v. An supra at 565–566—where terminating sanction imposed without proper notice, resulting judgment was voidable, not void, and could not be set aside under CCP § 473(d) after it became final.
If a party did not have actual or constructive notice of the lawsuit then the judgment is void. Lack of actual or constructive notice of proceedings (e.g., because papers served on defendant's attorney who had been suspended by State Bar and thus had no authority to represent defendant). Lovato v. Santa Fe Int'l Corp. (1984) 151 Cal. App.3d 549, 553.
And if the plaintiff did not serve the statement of damages required in personal injury and death actions the judgment is void. See Heidary v. Yadollahi (2002) 99 Cal. App. 4th 857, 862, the court found the default improperly entered for failure to appear at trial.
Of course lack of or improper service of summons is likely the most common reason for a judgment to be void as a matter of law, particularly when the defendant has not been personally served.
The law in California is well settled that personal service is the preferred means of service to notify a defendant of the commencement of a lawsuit.
Any other form of service other than personal service is known as substituted or constructive service, depending on the method used. And in using substituted or constructive service, strict compliance with the letter and spirit of the statutes is required as has been stated by the California Supreme Court over 100 years ago.
The United States Supreme Court has ruled that a void judgment must be set aside regardless of the merits of the underlying lawsuit. This was in a case where there was never a valid service of summons.
A California Court of Appeal has ruled that lack of personal jurisdiction renders a default judgment void in a case involving a nonresident of California.
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Sample motion to vacate void judgment in California
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 235 sample legal documents. Visit his website at LegalDocsPro website and his Facebook page at Facebook page
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