§ 585.5.Affidavit to Accompany Application to Enter Default; Motion to Set Aside Default
Title 8. Of the Trial and Judgment In Civil Actions · Chapter 2. Judgment Upon Failure to Answer · Last amended 1991 · Last verified July 28, 2026
In one sentenceSection 585.5 requires every application for a clerk's default judgment under § 585(a) to include an affidavit addressing whether certain consumer-finance and venue statutes apply, and lets a defendant move within 60 days of learning of the judgment to set it aside if those requirements weren't met.
(a)Every application to enter default under subdivision (a) of Section 585 shall include, or be accompanied by, an affidavit stating facts showing that the action is or is not subject to Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395.
(b)When a default or default judgment has been entered without full compliance with Section 1812.10 or 2984.4 of the Civil Code, or subdivision (b) of Section 395, the defendant may serve and file a notice of motion to set aside the default or default judgment and for leave to defend the action in the proper court. The notice of motion shall be served and filed within 60 days after the defendant first receives notice of levy under a writ of execution, or notice of any other procedure for enforcing, the default judgment.
(c)A notice of motion to set aside a default or default judgment and for leave to defend the action in the proper court shall designate as the time for making the motion a date prescribed by subdivision (b) of Section 1005, and it shall be accompanied by an affidavit showing under oath that the action was not commenced in the proper court according to Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395. The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.
(d)Upon a finding by the court that the motion was made within the period permitted by subdivision (b) and that the action was not commenced in the proper court, it shall set aside the default or default judgment on such terms as may be just and shall allow such a party to defend the action in the proper court.
(e)Unless the plaintiff can show that the plaintiff used reasonable diligence to avoid filing the action in the improper court, upon a finding that the action was commenced in the improper court the court shall award the defendant actual damages and costs, including reasonable attorney's fees.
Plain-English Summary
This section adds a safeguard to the fastest form of default judgment, the clerk's judgment available under § 585(a) for contract and money actions. Every such application must include an affidavit stating whether the action is subject to Civil Code § 1812.10 or 2984.4 — statutes that restrict where certain retail installment and vehicle-finance actions can be filed — or to § 395(b), which governs proper venue for other consumer actions.
If a default or default judgment goes through without full compliance with those venue rules, the defendant gets a way back in. Within 60 days after first learning of a levy or other enforcement step, the defendant can move to set aside the judgment and get leave to defend in the proper court, backed by an affidavit and a copy of the answer or other pleading the defendant intends to file.
If the court finds the motion timely and the action was filed in the wrong court, it must set the judgment aside and let the defendant defend in the correct court. Subdivision (e) then shifts the cost of the mistake: unless the plaintiff shows reasonable diligence in choosing the court, the defendant recovers actual damages and costs, including attorney's fees, for having to fight a case filed in the wrong place.
Frequently Asked Questions
What must accompany an application for a clerk's default judgment?
An affidavit stating whether the action is or isn't subject to Civil Code § 1812.10 or 2984.4, or CCP § 395(b) — statutes that restrict proper venue for certain consumer-finance actions.
How long does a defendant have to challenge a default entered in the wrong court?
Sixty days after first receiving notice of a levy or other enforcement of the judgment.
What happens if the court agrees the case was filed in the wrong court?
It sets aside the default or default judgment and lets the defendant defend the action in the proper court.
Can the defendant recover money for having to bring this motion?
Yes. Unless the plaintiff shows reasonable diligence in avoiding the wrong court, the defendant recovers actual damages and costs, including reasonable attorney's fees.
Amendment History
Amended by Stats. 1991, Ch. 1090, Sec. 3.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as:set aside default judgment wrong venue californiadefault judgment consumer finance affidavit