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
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:
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)
“ 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…  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.
" 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.
" 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).
" ... 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).
" 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.
"[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:
BUCKERT V. BRIGGS (1971) 15 Cal.App.3d 296:
" 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 California Supreme Court, in ELSTON V. CITY OF TURLOCK (1985) 38 Cal.3d 227 states:
In SALAZAR v. STEELMAN (1937) 22 Cal.App.2d 402, the court gave some definitions to assist in defining a mistake:
" * * * "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.
12. EXCUSABLE MISTAKE OF LAW:
13. ATTORNEY’S AFFIDAVIT OF FAULT PROVIDES MANDATORY RELIEF TO INEXCUSABLE MISTAKES. CCP §473(b).
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.”
MOTION FOR RECONSIDERATION.
"(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
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