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A. RELIEF FROM DEFAULT UNDER CALIFORNIA C.C.P. 473

Summary of Law: The court may grant relief from default or dismissal due to a party’s reasonable mistake, inadvertence, surprise or excusable neglect if the party seeking relief files the motion within 6 months of the order of entry of default or dismissal; the court must liberally apply Section 473 in favor of the party seeking relief.                                                       

 

1. MISTAKE, INADVERTENCE, SURPRISE, OR EXCUSABLE NEGLECT.

          C.C.P. 473. Relief from Consequences of Error by a Party

 “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… “ - Code of Civil Procedure 473(b)


2. SHORT SUMMARY OF STANDARD OF JUDICIAL SCRUTINY:

(1) Liberally apply Section 473;

(2) Consider circumstances and prejudice to each party

(3) Strong policy for relief if brought within the six month period. 

Carrasco v. Craft (1985)164 Cal.App.3d 796, 803:

 “Civil Procedure section 473 "should be liberally applied and the power freely exercised to carry out the policy in favor of trial on the merits." …  Thus, in determining the merits of a Code of Civil Procedure section 473 motion, the court should take into account the circumstances of the case and the prejudice, if any, to the parties…  There is also a strong policy behind granting relief if the moving party brings the motion for relief within the statutory time  (Emphasis Added)

 
3. MOVANT MUST FILE CONCURRENTLY A COPY OF THE PROPOSED ANSWER OR PLEADING
- C.C.P. 473(b)

“…Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise otherwise the application shall not be granted…” C.C.P. 473(b)


4. APPLICATION SHALL BE MADE NO LATER THAN SIX MONTHS AFTER THE ENTRY OF DEFAULT:

“…the application…shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” CCP 473(b) 

“[1] The general rule is that the six-month period within which to bring a motion to vacate under section 473 runs from the date of the default and not from the judgment taken thereafter… [2] The reason for the rule is that vacation of the judgment alone ordinarily would constitute an idle act; if the judgment were vacated the default would remain intact and permit immediate entry of another judgment giving the plaintiff the relief to which his complaint entitles him…” Rutan v. Summit Sports, Inc. (1985) 173 Cal.App.3d 965, 970

 
 

5. ONLY "VERY SLIGHT" EVIDENCE WILL BE REQUIRED TO JUSTIFY SETTING ASIDE THE DEFAULT.

 In the Supreme Court of California case of SHAMBLIN v. BRATTAIN (1988) 44 Cal.3d 474, the same principal was expounded:

"[1] It is the policy of the law to favor, whenever possible, a hearing on the merits...Therefore, when a party in default moves promptly to seek relief, very slight evidence is required to justify a trial court's order setting aside a default..." (Emphasis added).

 

 


6. DOUBTS ARE RESOLVED IN FAVOR OF THE PARTY SEEKING RELIEF FROM DEFAULT.

 In the California Supreme Court case of ELSTON v. CITY OF TURLOCK (1985) 38 Cal.3d 227, the court stated that:

"[3] Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default...Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits..." (Emphasis added).

 

 7. INEXCUSABLE NEGLECT MUST BE CLEAR IN ORDER TO DENY A MOTION FROM RELIEF FROM DEFAULT.

 Elston v. City of Turlock (1985) 38 Cal.3d 227 states that:

"[6] ... Unless inexcusable neglect is clear, the policy favoring trial on the merits prevails. (Ibid.) Doubts are resolved in favor of the application for relief from default...and reversal of an order denying relief results... Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party..." (Emphasis added).

 

"[7] Reversal of an order denying relief is appropriate where the effect of the order is to "defeat, rather than to advance the ends of justice."..."

 

  8. THE LAW FAVORS HEARINGS ON THE MERITS IN DEFAULT CASES.

 ALDRICH v. SAN FERNANDO VALLEY LUMBER CO. (1985) 170 Cal.App.3d 725:

"[4a] It is the policy of the law to favor a hearing on the merits whenever possible, and the appellate courts are much more disposed to affirm an order which compels a trial on the merits than to allow a default judgment to stand. This policy disapproves a party who "attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary..." (Emphasis added).

 

 

9. WHERE NO "PREJUDICE" OR "INJUSTICE" EXISTS, VERY SLIGHT EVIDENCE IS REQUIRED TO JUSTIFY SETTING ASIDE A DEFAULT.

BUCKERT V. BRIGGS (1971) 15 Cal.App.3d 296:

"[8] Where there is no showing the party opposing the motion to vacate the judgment "'has suffered any prejudice or that injustice will result from the trial of the case upon its merits, very slight evidence will be required to justify a court in setting aside the default.'" (Benjamin v. Dalmo Mfg. Co., supra, 31 Cal.2d 523, 531.) [Emphasis added]."

 
 

10.     PREJUDICE, IN THE CONTEXT OF A RELIEF FROM DEFAULT HEARING, MEANS THAT THE PLAINTIFF'S CASE IN CHIEF WILL BE SERIOUSLY PREJUDICED DUE TO MISSING WITNESSES, EVIDENCE BEING DESTROYED, AND THE LIKE, CAUSED BY DEFENDANT'S DELAY.

 The court in ALDRICH v. SAN FERNANDO VALLEY LUMBER CO. (1985) 170 Cal.App.3d 725 states:

 "...Prejudice is one of the factors the trial court may properly consider in determining whether the moving party acted diligently....Although it might be said that there is some prejudice inherent in any protracted delay, appellants' single declaration in opposition to respondent's motion did not set forth substantial evidence of missing witnesses, evidence destroyed, and the like, to establish prejudice." (Emphasis added).

The California Supreme Court, in ELSTON V. CITY OF TURLOCK (1985) 38 Cal.3d 227 states:

"[6] ... Reversal is particularly appropriate where relieving the default will not seriously prejudice the opposing party..." (Emphasis added)

The trial court may, where appropriate, impose costs upon the moving party, although C.C.P. Section 473 no longer requires payment of such costs (See Weitz v. Yankosky (1966) 63 Cal.2d 849, 859).


11. EXCUSABLE MISTAKE OF FACT

In SALAZAR v. STEELMAN (1937) 22 Cal.App.2d 402, the court gave some definitions to assist in defining a mistake:

"[4] * * *       "A mistake, in a legal sense, may be defined to be the doing of an act under an erroneous conviction, which act, but for such conviction, would not have been done." [citations][Civ. No. 11303.

 

"Mistake"..."implies not simply any, but a reasonable mistake, ... as to some fact, or something that has or has not been done of which the complaining party ought to have knowledge, and which, if he had had such knowledge, might have prevented the judgment, order, or other proceeding of which he complains". [citation] 

 

"A mistake exists when a person, under some erroneous conviction of law or fact, does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition or misplaced confidence." [citation]"

 
12. EXCUSABLE MISTAKE OF LAW:

In the California Supreme Court case of Viles v. State of California (1967) 66 Cal.2d 24, the court clarified what type of mistake of law is satisfactory to relieve a party from default, as follows:

 

"[3] An examination of the cases applying section 473 of the Code of Civil Procedure discloses that not every mistake of law is excusable...but that an honest mistake is excusable, the determining factor being the reasonableness of the misconception..."

 


13.  ATTORNEY’S AFFIDAVIT OF FAULT PROVIDES MANDATORY RELIEF TO INEXCUSABLE MISTAKES.  CCP 473(b).


Although based on the facts and law, discretional relief clearly ought to be granted, should the Court order that grounds for discretionary relief are not found as to the entity defendants, counsel, in the alternative, accepts responsibility for same, thereby invoking the mandatory relief provisions of C.C.P. 473.


14. C.C.P. SECTION 128.

Code of Civil Procedure, Section 128(a)(8). Powers of Courts:

“(a) Every court shall have the power to do all of the following:

*        *        *

(8) To amend and control its process and orders so as to make them conform to law and justice.”


15. CODE OF CIVIL PROCEDURE, SECTION 1008.

MOTION FOR RECONSIDERATION.

         Code of Civil Procedure, Section 1008:

 "(a) When an application for an order has been made to a judge, or to a court, and …granted…any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.”

C.C.P. 1008 IS DIRECTORY, NOT JURISDICTIONAL AND THE COURT RETAINS COMPLETE POWER AND BROAD DISCRETION TO CHANGE ITS DECISION AS THE COURT MAY DETERMINE.

         Gailing v. Rose, Klein & Marias (1996) 43 Cal.App.4th 1570:

“The provisions of section 1008 are not jurisdictional. The trial court has broad discretion to hear a renewed motion, even if prerequisites of the section are not met. “

       People v. Castello (1998) 65 Cal.App.4th 1242, 1249-1250:

 “Therefore, if the language of section 1008 imports anything further, fn. 7 it must be treated as directory only…At most, therefore, section 1008 requires courts to exercise due consideration before modifying, amending or revoking prior orders…This is consistent with the doctrine of separation of powers, whereby the Legislature may regulate the exercise of the court's inherent power, but its regulations must not "defeat or materially impair" the constitutional powers of the courts… “ 

Other Procedural Articles: Motion for Judgment on the Pleadings

                                             Amending Complaint

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