§ 473.2.Motion to Set Aside Default Judgment For Improper Service of Process

Section 473.2 is a new section that becomes operative on January 1, 2027 — it is not in effect today. Once operative, it will give a defendant who was not served with a summons and complaint as required a dedicated path to move to set aside or vacate a default or default judgment and either defend the action or move for dismissal.

The moving party must proffer evidence — a sworn affidavit or otherwise — that service was not lawfully effected, which is enough to rebut the presumption ordinarily attached to the facts in a process server’s return. Once that evidence is proffered, the burden shifts: the party who obtained the default has to prove by a preponderance of the evidence that service was lawful. The court must take evidence on that question and cannot deny a reasonable request from either side for a hearing with oral testimony. The section also softens a specific technical trap — if a process server’s return was filed before this section’s operative date, the absence of the photograph required under § 417.10 does not by itself make the proof of service unlawful or insufficient. Section 473.2 does not limit any other remedies otherwise available.