Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…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 . . . 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.”
Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading →
It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading →
The California Supreme Court holds that Code of Civil Procedure section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, governs renewed applications for mandatory relief under Code of Civil Procedure section 473, subdivision (b), for relief from default based on an attorney’s “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”
Section 1008 requires a party filing a renewed application to submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. [See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC.]
Mr. Daymude consults with clients and accepts cases involving relief from default and default judgments, including those based upon an attorney’s mistake, inadvertence, surprise, or neglect. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.