PRETRIAL ADJUDICATION
...Default
......Relief from Default
.........Code Civ. Proc. §473
............Atty's Mistake or Neglect
13 Cards On This Topic:

Trial ct. could not consider renewed motion for default relief under CCP 473 where Ds submitted a more detailed atty affidavit of fault but failed to comply with CCP 1008's foundational requirements; sections not in conflict.

Motion to vacate denied on its merits where trial court determined counsel's declaration of fault was not credible, he was retained after the deadline for responsive pleadings had passed and he was not the cause of the default.

Because negligent in-house attorney was acting in his role as attorney, not corporate officer, trial court correctly set aside company's default under mandatory provisions of CCP 473.

Trial court erred in denying relief from default where undisputed facts plainly established the attorney fault necessary to trigger a right to mandatory relief.

Atty fault provision in CCP 473 (b) doesn't apply to atty's failure to timely file opposition and X-motion to settlement enforcement motion—this is not a default entered by clerk, and there was no default judgment.

Mandatory provision of CCP 473(b) does not apply to judgment entered after uncontested trial in D's absence as it is neither a "default," "default judgment" nor "dismissal"; contrary holding of IRMO Hock & Gordon-Hock rejected.

Affidavit attesting fault per CCP 473(b) entitles defaulting party to relief where executed by atty licensed in other jurisdiction but not in CA—granting relief consistent with language and remedial purpose of the statute.

Showing of "attorney fault" and no client involvement was sufficient to make relief from default mandatory under CCP 473 (b).

D deemed to have stipulated to commissioner's jurisdiction where it did not file objection; power of temp. judge to decide later proceeding hinges on whether it is ancillary to, or direct progeny of, the stipulated cause.

Relief from dismissal for failing to request hearing on alleged CEQA violations not available when failure caused by attorney's ••inexcusable•• mistake or neglect.

W entitled to relief from judgment where attorney's "affidavit of fault" and failure to appear at trial constituted "default" in meaning of Code Civ. Proc. §473 (b).

Default, default judgments vacated where the result of attorney misconduct in refusing to respond to discovery or motions to compel.

Court properly vacated default judgment against D under Code Civ. Proc. §473 (attorney neglect or mistake) as substantial evidence supported finding D’s former counsel caused default.