Collateral attack on a judgment in California

A collateral attack on a judgment in California is the topic of this blog post.

A collateral attack on a judgment in California requires the filing of a separate lawsuit which is also known as an independent action in equity.  A collateral attack on a judgment is fundamentally different from a standard motion to vacate a judgment in that it involves the filing of another lawsuit to vacate the judgment for lack of personal jurisdiction.  The complaint could also include other causes of action such as vacating the judgment on the grounds of extrinsic fraud or mistake if appropriate.

Advantages of a collateral attack on a judgment in California.

A collateral attack on a judgment in California has some very important advantages which include,

(1) there is NO time limit for a collateral attack on a judgment,

(2) because filing an independent action in equity involves a separate lawsuit, the party seeking to vacate the judgment is allowed the full range of discovery methods authorized in California litigation including interrogatories, requests for admission, requests for production of documents, depositions, and most importantly, the use of oral testimony as witnesses can be served with a subpoena to appear at the trial, and

(3) the fact that a California Court of Appeal ruled in a recently published decision that laches cannot be invoked as a defense in cases where there has been a complete failure of service of process upon a defendant.

And there is another important advantage in that even if a motion to vacate is made under section 473 of the Code of Civil Procedure and is denied that does not always preclude an independent action in equity to set aside the judgment, in other words the denial of the previous motion is not entitled to collateral estoppel effect although collateral estoppel may apply if the defendant had an opportunity to present oral testimony at the section 473 motion hearing and the issues were fully litigated.  See Groves v. Peterson (2002) 100 Cal.App.4th 659, 668.

The California Supreme Court has stated that the reasoning behind the general rule that the denial of the previous motion is not entitled to collateral estoppel effect, which has been well settled in California for over 100 years, is the fact that, in the standard motion procedure, the moving party is limited to presenting ex parte affidavits of voluntary witnesses in most cases unless the trial court exercises discretion and permits a greater latitude.  In using the motion procedure the party does not have the right to produce oral testimony or to compel witnesses to attend for deposition or cross-examination.  The motion procedure, while simpler and more convenient, does not involve all the aspects of full litigation.  Because the remedies of a motion in the underlying case and an independent action in equity are cumulative, parties should be entitled to resort first to the convenient and expeditious remedy without worrying about the issue of collateral estoppel if the motion is denied.  Thus even if a section 473 motion has been denied, parties may still pursue an independent action that affords them all the advantages of a regular trial of the issue.

Technically speaking there is no time limit to filing an independent action in equity to vacate a judgment.  However if you have recently become aware that a judgment has been entered against you should contact an experienced civil litigation attorney that can evaluate your situation and determine if a collateral attack on the judgment is appropriate.

Contact attorney Nathan Mubasher for a consultation and evaluation of your case.

Nathan Mubasher earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution (ADR) training from the United Nations Institute for Training and Research (UNITAR).

Schedule a consultation today with attorney Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.


Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660


Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.