“The court may, upon 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, inadvertence, surprise, or neglect.” (Code of Civ. Proc., § 473(b); Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254-55.)

“Finding that when the Legislature incorporated dismissals into section 473, subdivision (b) it intended to reach only those dismissals which occur through failure to oppose a dismissal motion, the only dismissals which are procedurally equivalent to a default, courts have held the mandatory relief provision inapplicable to dismissals for failure to prosecute, dismissals for failure to serve a complaint within three years, dismissals based on running of the statute of limitations and voluntary dismissals entered pursuant to settlement.” (Leader v. Health Industries of America Inc (2001) 89 Cal.App.4th 603, 620.) Relief is available to plaintiffs because dismissal is the “practical equivalent of a default judgment.” (Aldrich v. San Fernando Valley Lumber Co., Inc. (1985) 170 Cal.App.3d 725.)

Legal Standard

The purpose of this provision is to alleviate the hardship on parties who lose their day in court due solely to a failure to act on their attorney's part. (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “[T]he only occasion for the application of section 473 is where a party is unexpectedly placed in a situation to his injury without fault or negligence of his own and against which ordinary prudence could not have guarded. Neither inadvertence nor neglect will warrant judicial relief unless it may reasonably be classified as of the excusable variety upon a sufficient showing.” (Elms v. Elms (1946) 72 Cal.App.2d 508, 513.)

“As a general rule the accident or mistake authorizing relief may not be predicated upon the neglect of the party's attorney unless shown to be excusable because the negligence of the attorney in the premises is imputed to his client and may not be offered by the latter as a basis for relief. However, excepted from the rule are those instances where the attorney's neglect is of that extreme degree amounting to positive misconduct, and the person seeking relief is relatively free from negligence. The exception is premised upon the concept the attorney's conduct, in effect, obliterates the existence of the attorney-client relationship and for this reason his negligence should not be imputed to the client.” (Buckert v. Briggs (1971) 15 Cal.App.3d 296, 301.)

A mistake justifying relief may be a mistake of fact or a mistake of law; “A mistake of fact is when a person understands the facts to be other than they are; a mistake of law is when a person knows the facts as they really are but has a mistaken belief as to the legal consequences of those facts.” (Hodge Sheet Metal Products v. Palm Springs Riviera Hotel (1961) 189 Cal.App.2d 653, 656.) The mistake in either case must be material and excusable. (Conway v. Municipal Court (1980) 107 Cal.App.3d 1009, 1017.) Relief has been granted for failure to appear at trial due to the mistaken belief that continuance had been granted. (Nicol v. Davis (1928) 90 Cal.App. 337, 341.)

It is the moving party's burden to show the requisite mistake, inadvertence, surprise or excusable neglect. (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478.) There is no longer a diligence requirement when mandatory relief is sought pursuant to an attorney affidavit of fault, meaning that as long as the motion is filed within the six-month period, there is no “reasonable time” inquiry. (Milton v. Perceptual Development Corp. (1997) 53 Cal.App.4th 861, 868.)

By its language, 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. (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 517.) In this sense, relief is mandatory in all but the rarest cases, where the court concludes the client, rather than the attorney, was the actual cause of the default, default judgment, or dismissal, and the attorney is simply attempting to ‘cover up’ for his or her client. (Rogalski v. Nabers Cadillac (1992) 11 Cal.App.4th 816; Rodrigues v. Super. Ct. (2005) 127 Cal.App.4th 1027, 1033.)

A motion seeking relief under section 473 lies within the sound discretion of the trial court, which must be exercised in a manner which will serve the spirit of the law and serve the ends of substantial justice. (Martin v. Cook (1977) 68 Cal.App.3d 799, 807.) Nonetheless, the law strongly favors trial and disposition on the merits, so any doubts in applying section 473 must be resolved in favor of the party seeking relief from a default. (Waite v. Southern Pac. Co. (1923) 192 Cal. 467, 470-471.) When the defaulting party moves promptly to seek relief and the opponent to such request has or will suffer little prejudice, very slight evidence is required to justify setting aside a default. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)

Procedure

“Application for this relief... shall be made within a reasonable time, in no case exceeding six months, after the... dismissal... was taken.... Notwithstanding any other requirements of this section, 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

1. resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or
2. 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.”

(Code of Civ. Proc., § 473(b); English v. IKON Business Solutions (2001) 94 Cal.App.4th 130, 143.)

“This six-month time limitation is jurisdictional; the court has no power to grant relief under section 473 once the time has lapsed.” (Austin v. Los Angeles Unified School District (2016) 244 Cal.App.4th 918, 928.)