CALIFORNIA FAMILY LAW
...Procedure After Trial/Hearing
......Attack on Judgments/Orders
.........Motion to Vacate (CCP §473)
............Cases Denying Relief
 20 Cards On This Topic:
  • Motion to set aside voluntary dismissal should have been brought under CCP §473(b), not §473(d), as it arose from atty mistake; as tactical decision to voluntarily dismiss was not a void order, court erred in setting it aside.
  • Ps who failed to appear for trial because atty miscalendared the date are not entitled to mandatory relief under CCP 473(b)–judgment was not a "dismissal" against Ps for which mandatory relief applied.
  • Lawyer D's CCP 473(b) motion to set aside properly denied where he did not substantiate required assertions of mistake, etc., but instead claimed to have discovered new defense, which he could have presented at trial had he exercised due diligence.
  • Conclusory allegations in declaration for relief from default of "anxiety, depression, and financial hardships" are insufficient to justify relief.
  • Ps' use of incorrect zip code in mailing default papers did not entitle Ds to relief from default and default judgment where they had actual notice of default proceedings from other sources.
  • 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.
  • Mandatory provision of CCP 473(b) does not apply to atty in pro per.
  • Mandatory provision of CCP 473(b) does not apply to judgment entered after uncontested trial in D's absence because it is neither a "default," "default judgment" nor "dismissal"; contrary holding of IRMO Hock & Gordon-Hock rejected.
  • Mandatory attorney fault provision of CCP 473(b) does not empower court to set aside a summary judgment, only a default judgment or a dismissal.
  • CCP 473(b) relief for attorney fault not mandatory where part of “intentional strategic decision” to delay.
  • Stock market fluctuations cannot serve as the basis for a set aside motion.
  • Code Civ. Proc. §473 motion does not extend time to appeal from underlying judgment unless filed within the normal time period for filing a notice of appeal from that judgment.
  • Jurisdiction to review merits of an appeal can never be conferred upon an appellate court by the consent or stipulation of parties, estoppel, or waiver.
  • Although by statute attorney negligence is not a bar to setting aside a dissolution judgment under Code Civ. Proc. §473, this does not make it a basis for doing so.
  • Trial court did not abuse its discretion in refusing to set aside order terminating father's parental rights.
  • As W filed CCP §473 motion more than 8 mos. after receiving arb award, super. ct. had no jurisdiction to grant relief from arbitration statutory time limitations.
  • Mandatory set aside provisions of §473 apply only to default judgments caused by attorney negligence, not to dismissals. Motion for relief after 5 months untimely.
  • Motion denied for lack of evidence of excusable neglect and lack of diligence in filing.
  • Application for entry of default may not be heard unless affidavit filed by P showing copy of application mailed to D’s attorney; entering default in absence of affidavit not prejudicial error where D had actual notice.
  • Cases discussed wherein section 473 relief has been denied.


    •