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.
While the court must exercise discretion in determining whether the default or dismissal was in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect, and therefore may deny relief—when the default judgment or dismissal is the procedural equivalent of a default, without any opportunity for the court to evaluate why timely opposition had not been filed, the mandatory attorney-fault provision requires that relief be granted if default or dismissal was due to attorney’s inexcusable conduct.
In Younessi v. Woolf the court was presented with the case where a newly retained attorney failed to timely file an amended complaint. Defendants then moved ex parte to dismiss the action and dismissal was entered. The court held plaintiff was entitled to relief under section 473, subdivision (b), pursuant to the mandatory attorney-fault provision because dismissal was the procedural equivalent of a default judgment, and because it resulted from plaintiff’s counsel’s inexcusable conduct in failing to timely file an amended complaint.
Mr. Daymude consults with clients and accepts cases involving discretionary relief under Code of Civil Procedure 473, including relief from default and default judgments. 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.