California Code of Civil Procedure section 473 allows a court to relieve a party from judgment, dismissal, order, or other adverse proceeding when an application has been filed within six months of the adverse disposition. However, the moving party must prove mistake, inadvertence, surprise, or excusable neglect.
The party requesting a set aside must prove two items: a satisfactory excuse for the default and diligence in making the motion after discovery of the default. Section 473 applies occurs when a party is unexpectedly placed in a negative situation whereby ordinary prudence could not have prevented the situation. The court must ask whether a reasonably prudent person under the same or similar circumstances might have made the same error. Ignorance of the law, however, is not a mistake.
California Code of Civil Procedure Section 473(b) states, “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken. However, in the case of a judgment, dismissal, order, or other proceeding determining the ownership or right to possession of real or personal property, without extending the six-month period, when a notice in writing is personally served within the State of California both upon the party against whom the judgment, dismissal, order, or other proceeding has been taken, and upon his or her attorney of record, if any, notifying that party and his or her attorney of record, if any, that the order, judgment, dismissal, or other proceeding was taken against him or her and that any rights the party has to apply for relief under the provisions of Section 473 of the Code of Civil Procedure shall expire 90 days after service of the notice, then the application shall be made within 90 days after service of the notice upon the defaulting party or his or her attorney of record, if any, whichever service shall be later. No affidavit or declaration of merits shall be required of the moving party. Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties. However, this section shall not lengthen the time within which an action shall be brought to trial pursuant to Section 583.310.”
If you need a divorce lawyer in the Orange County area to discuss a family law matter such as child support, spousal support, custody, transmutation or property division, contact Treviño Law, Inc. Conveniently located off of the 5 and 405 freeway at Lake Forest.
Please note that the posting of this family law blog is informational only. Specific circumstances and laws may determine the outcome of your particular situation and it is important to contact an attorney to analyze your situation.
Please note that this legal advice does not establish a family law attorney-client relationship. This is a legal advertisement for Treviño Law, Inc, an Orange County family law firm.
12/18/18
