Mistake, inadvertence, surprise or excusable neglect – Cal. Code Civ. Proc. § Section 473
In Furtherance of Justice the court can correct itself
A 473 motion is a motion that allows a trial court to relieve a party from a judgment, order, or other proceeding that was taken against them due to mistake, inadvertence, surprise, or excusable neglect. The motion can be made within a reasonable time, but in no case exceeding six months.The court may amend its own judgement or the court may allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party. The court has discretion to allow amendments at any time before or after the commencement of trial. Examples of mistake, inadvertence, surprise, or excusable neglect include illness of the defendant, attorney’s abandonment of client, or fraud of the plaintiff.
California Code of Civil Procedure 473
CCP 473
The California Code of Civil Procedure 473 concerns a party’s right to amend a pleading filed in a court action. The court has discretion on whether a party may add or remove the name of a party, or correct a mistake in a pleading.
- Additionally, the court may alter the time for response of the opposing party.
- The code also states the court has the right to allow an answer to be filed beyond the time a pleading stated. If an amendment to a pleading makes it necessary, the court may postpone a trial and require payments to an opposing party.
Subsection (b) of the code states the court has the ability to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding against them due to the party or legal representative’s error or neglect. If seeking said relief, the code outlines the requirements for the request and how they shall be filed with the court, as well as the time span in which the request must be filed; no longer than six months after the judgment, dismissal, order or proceeding was taken.
However, the code mandates that in the case of a court action concerning the right to real or personal property, after notice has been served, the party seeking relief must apply for relief under the provisions of Section 473 of the Code of Civil Procedure and the right to relief shall expire 90 days after notice is served. Further, it states that an affidavit or declaration of merits shall be required to be furnished by the moving party.
Procedure
The code also concerns the procedure followed when an application for relief is made no more than six months after the judgment entry, and said application is accompanied by an attorney’s sworn affidavit testifying to their mistake, surprise, or neglect. According to the code, the court shall vacate any resulting default entered against the attorney’s client, or resulting default judgment or dismissal entered against the client, unless the court finds that the dismissal was not cost by the attorney’s mistake, surprise or neglect. The code outlines how the court shall direct the attorney to pay the reasonable court fees and costs to the opposing counsel or parties.
Section 583.310 and Timing
However, pursuant to Section 583.310, the code declares the time within which an action shall be brought will not be lengthened. If a court grants relief from a default, default judgment or dismissal according to the provisions of this section, the court reserves the right to impose a penalty of $1,000.00 or less upon the offending attorney or party, direct that the attorney pay $1,000.00 or less to the State Bar Client Security Fund, or grant other relief it deems as appropriate.
- When the court grants relief from a default or default judgment based upon the affidavit of the defaulting party’s attorney, the relief will not be made conditional upon the attorney’s payment of said fees or penalties imposed by the court.
- The court may also correct clerical mistakes when motion is made by the injured party or the court makes it motion to do so.
- The court may also set aside any void judgment or order upon motion of either party.
Section 473 – Mistake, inadvertence, surprise or excusable neglect
Ca. Civ. Proc. Code § 473
Opposing a section 473 motion to vacate a judgment in California is the topic of this blog post.
The deadline for opposing a section 473 motion to vacate a judgment in California is at least nine (9) court days before the hearing and the opposition should be served by personal delivery or overnight mail under the provisions of Code of Civil Procedure section 1005.
If you have been served with a motion to vacate a judgment under section 473 in California you need to carefully review the motion to determine the grounds for opposition.
Code of Civil Procedure § 473(b) states in pertinent part that:
“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, inadvertance, 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.” (Emphasis added.) I want to stress that the six month time limit starts from the date that the default is entered, NOT the date of entry of any default judgment.
As I have just shown even the specific code section and subdivision that allows someone to file a motion to vacate a default judgment states that the motion must be made within a reasonable time, in no case exceeding six months. Many people are under the mistaken impression that as long as the motion to vacate is filed within six months of the default it is a sure thing. That is NOT the case.
In order to qualify for relief from default and/or judgment under section 473(b) the moving party must show that they:
(1) timely moved the Court for relief from default, including providing a satisfactory explanation for the delay,
(2) make a sufficient showing of mistake, inadvertance, surprise or excusable neglect,
(3) and provide a copy of their proposed pleading to the Court although some Courts have ruled that so long as that is filed before the hearing that is substantial compliance.
Only then have they met all of the statutory conditions necessary for the Court to set aside the default and/or judgment entered against them.
California law has been well settled for over 60 years that delays of 3 months or more after discovery of the default routinely result in denial of relief under section 473(b), unless there is a satisfactory explanation for the delay. Several published decisions of both the California Supreme Court and the California Courts of Appeal have stated this fact.
If the moving party has not provided a satisfactory explanation for the delay, the mistake, inadvertance, surprise or excusable neglect that caused entry of the default or judgment will not be considered.
Therefore it is extremely important that you carefully review any supporting declarations including attached exhibit to determine whether or not a satisfactory explanation for the delay has been provided.
Another factor to consider is the fact that if relief from default is based on evidence other than an “attorney affidavit of fault,” the court may in its discretion order the defendant, as a condition of granting the motion, to pay the costs, including attorney fees, incurred by the plaintiff in obtaining the default judgment.
At least two California Courts of Appeal in published decisions, including a recent case from 2010, have dealt with this issue and reached the same conclusion.
A Court is particularly likely to make that order if the defendant’s case is weak such as someone who has obviously not stated any satisfactory explanation for the delay, and whose mistake or neglect is weak.
A California Court of Appeal stated in a published decision from over 50 years ago that nonmonetary conditions may be imposed in appropriate situations, such as an inspection of books or a restraint on any transfer of defendant’s property. source
DOUBLE-FAULT DEFAULT: ATTORNEYS TRIP OVER THE LOW BAR OF CCP § 473 MOTION
In a continuation on a theme, the California Court of Appeal issued another ruling emphasizing that lawyers must exercise care in all aspects of litigation, even in trying to correct mistakes.
All humans err. To that end, the California legislature enacted California Code of Civil Procedure (“CCP”) § 473 to allow trial courts to forgive litigants and attorneys who acknowledge their errors. But as the Court of Appeal noted on June 15, 2020 in the decision, Pacifica First National, Inc. v. Abekasis (2020) 50 Cal.App.5th 654, the right to a pardon under Section 473 is not limitless.
In Abekasis, Arie Abekasis (“Abekasis”), failed to respond to a cross-complaint. Cross-complainant Pacifica First National, Inc. (“Pacifica”) purported to serve the cross-complaint on Abekasis’s attorney at that time, Leslie Richards (“Richards”). Richards did not file responsive pleadings on behalf of Abekasis, and Pacifica took Abekasis’s default.
Represented by new counsel, Abekasis moved to set aside the default, claiming that cross-complaint was not served on Richards. Abekasis’s new counsel did not include a declaration from prior counsel, Richards, as to either service or any potential attorney error. Thus, neither the trial court nor the Court of Appeal had admissible evidence that the cross-complaint had not been properly served, nor did either tribunal receive a declaration wherein Richards acknowledged the default was her fault. Rather, the motion relied on only a declaration from Abekasis’s new counsel, who lacked the necessary foundational knowledge to testify that “the service was bad.” As a result, Abekasis’s motion to set aside the default on the grounds of bad service was fatally flawed. Compounding matters, Abekasis’s new counsel failed to retain a court reporter for the hearing on the motion to set aside the default.
.Significantly, the Court of Appeal noted that while Abekasis argued on appeal his entitlement to mandatory relief under Section 473, that argument had been waived because Abekasis had only sought discretionary relief under Section 473 in the trial court. Had Abekasis’s new counsel correctly prepared the motion, including a declaration from Richards admitting fault and seeking absolution for the benefit of the client, Abekasis may have been successful in obtaining relief from the default. In other words, an argument for relief under Section 473 at the trial would have likely won the day, but Richards failed to admit her errors and ask the trial court for absolution for the benefit of her past client.
In addition to the failure to submit adequate evidence with his moving papers, Abekasis’s new counsel failed to obtain a transcript of the hearing to set aside default. As to the transcript, the Court of Appeal gave a wise warning:
There is no transcript of this hearing. When appreciable sums are in play, it is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid. We publish this opinion in part to discourage misplaced thrift.
The Court of Appeal made clear in its opinion that Abekasis’s attorneys’ multiple failings, including failing to submit the necessary declarations in support of their motion and failing to obtain a hearing transcript, cost their client the chance to litigate claims: “Because he chose not to retain a court reporter, the slim text of that motion is what we have to go on, and that motion lacked merit.”
The Abekasis decision serves as a reminder for all attorneys to exercise due care at all stages of litigation. Many of the civil procedure statutes, coupled with applicable case law, provide guidance on the proper course of action. Attorneys must take steps to know and understand the rules applicable to the matters they are handling. source
An Untimely Motion to Vacate Is Still “Valid” to Extend the Deadline to Appeal
You know that the deadline to appeal may be extended if you file a posttrial motion. But beware: the extension does not apply if your posttrial motion turns out to be “invalid.” That very nearly happened in Arega v. Bay Area Rapid Transit Dist. (D1d3 Sep. 14, 2022 no. A163266) — Cal.Rptr.3d — (2022 WL 4232631) after the filed a motion to vacate under Code of Civil Procedure section 473(b) on grounds of inadvertence, surprise, mistake, or excusable neglect.
Fortunately for the appellants, the Court of Appeal held that a section 473 motion to vacate is still “valid” to extend the time to appeal, so long as it is filed within section 473’s outer six-month deadline. And that is the case even if the trial court denies the section 473 motion for not being filed sooner.
The plaintiffs in Arega lost their workplace discrimination case on summary judgment. A little over 60 days later, the plaintiffs brought a motion to vacate. The motion was brought under Code of Civil Procedure section 473(b) based on plaintiffs’ counsel inadvertence in failing to contest the tentative ruling and request oral argument. Counsel declared he had been suffering “flu-like” symptoms that day. The trial court ruled this was too little, too late, and denied the motion as untimely.
Only a “valid” posttrial motion extends the deadline to appeal.
The district moved to dismiss the appeal. By the time the appeal was filed, it was more than 60 days after the notice of entry of judgment had been served. The plaintiffs argued their time to appeal was extended because of their motion to vacate. But the district argued that the extension of time, under California Rules of Court, rule 8.108, only applies where a “valid” motion is filed. Here, the trial court ruled the motion to vacate was untimely. Thus, the district argued, it was invalid, and could not extend the deadline to appeal.
The district had authority to support its position. Rule 8.108 provides that the time to appeal may be extended when a party files a “valid” motion to vacate. And a “valid” motion means two things: (1) it must be based on a recognized ground; and (2) it must be timely.
A “valid” motion to vacate, for purposes of extending the time for filing a notice of appeal, means “a motion based on some recognized grounds for vacation; it cannot be stretched to include any motion, regardless of the basis for it.” (Lamb v. Holy Cross Hospital (1978) 83 Cal.App.3d 1007, 1010.)
Here, the motion to vacate was “valid” because it was based on a recognized ground and filed within the statute’s outer deadline.
Here, the First District Court of Appeal concluded that the plaintiffs’ motion to set aside the judgment, although unsuccessful, was a “valid” motion to vacate judgment under rule 8.108(c). “There is no dispute that Plaintiffs’ motion was based on a recognized ground for vacation as it was based on “[i]nadvertence, surprise, mistake, or excusable neglect” pursuant to section 473(b).”
The closer call was whether the motion was timely. The difficulty here was that the statute has two clauses governing the time of filing. Section 473(b) states that a motion to vacate a judgment or an order “shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).)
Here, the plaintiffs filed the motion to vacate a little more than two months after the summary judgment. This was within the six-month outer limit. But, according to the trial court, it was not a “reasonable time,” so the motion was untimely.
So does this mean the motion was “invalid” under California Rules of Court, rule 8.108?
No, the motion was still valid to extend the time to appeal, the Court of Appeal held. The problem here is that the motion deadline here is discretionary, and yet this discretionary deadline to file the motion affects the jurisdictional deadline to file the appeal. So the court held that the shorter, discretionary deadline does not impact that jurisdictional analysis. “Given that what constitutes a reasonable time requires a case-by-case determination and depends on the discretion of the trial court, we do not accept that this requirement is a prerequisite to a motion under section 473(b) being ‘valid’ for purposes of Rule 8.108(c).”
(The court went on to note that, here, there was no evidence the delay in filing the motion to vacate as the result of bad faith or gamesmanship. So look for that possible distinction in future cases.)
Comment:
Posttrial procedure gets confusing, and dangerous. If this were a motion for new trial, my advice would be: file the appeal now. That is because you get the best of both worlds: you have safely preserved your right to appeal, and because the motion for new trial is a collateral proceeding, the trial court may hear and decide it despite the pending appeal. (Neff v. Ernst (1957) 48 Cal.2d 628, 634.) Win-win.
But the same is not necessarily true with all posttrial motions.
There is a split of authority whether a JNOV motion is treated the same way as a new trial motion. (compare Foggy v. Ralph F. Clark & Assocs., Inc. (1st Dist. Div. 2 1987) 192 Cal.App.3d 1204, 1212-1213 [trial court retains jurisdiction], with Weisenburg v. Molina (1976) 58 Cal.App.3d 478, 486 [4th Dist. Div. Two, holding that trial court is divested of jurisdiction].)
And when it comes to a motion to vacate, taking an appeal divests the trial court’s authority to rule. (Takahashi v. Fish & Game Commission (1947) 30 Cal.2d 719, 725 [motion to vacate under CCP 663], rev’d on other grounds, (1948) 334 U.S. 410; Lippman v. City of Los Angeles (1991) 234 Cal.App.3d 1630, 1634; Weisenburg, supra, 58 Cal.App.3d at p. 486.]
So it is very important to carefully and timely prepare and file posttrial motions if you are relying on them to extend the time to appeal. This is an important time to consider consulting an appellate specialist. source