section 473 excusable neglect in California

2026(See Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [“the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party”].) 5 in making the motion after discovery of the default.’”’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 ; see also Austin, at p. 928 [“the moving party bears the burden of establishing a right to relief”].) “[F]or inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s n

2024“Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.” (Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929 , italics added.) A reasonably prudent layperson reviewing the document at issue here might have misunderstood the difference between a case management conference and the response to a complaint, despite the fact that the conference was more than 30 days after the receipt of the documents, and therefore believed that he had until mid-July to act on the complaint.

2026(See Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [“the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party”].) 5 in making the motion after discovery of the default.’”’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 ; see also Austin, at p. 928 [“the moving party bears the burden of establishing a right to relief”].) “[F]or inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s n

2024If it is wholly inexcusable it does not justify relief. [Citations.] It is the duty of every party desiring to resist an action or to participate in a judicial proceeding to take timely and adequate steps to retain counsel or to act in his [or her] own person to avoid an undesirable judgment.’ ” (Hearn, supra, 177 Cal.App.4th at p. 1206 .) The trial court could have reasonably concluded that husband failed to “show[] . . . a proper ground for relief” under section 473(b) that would permit it to exercise its discretion to grant relief from default.

2023(See Huh v. Wang (2007) 158 Cal.App.4th 1406 , 1424– 1425 [failure to calendar and appear based on workload not sufficient grounds].) Further, the evidence submitted here indicates that appellants merely failed to check the statutes regarding how to calculate time, and thus did not suffer a clerical or similar error that could be subject to relief upon diligent action.

2022(See Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 929 [section 473 relief not warranted based on attorney’s “strategic and tactical” decision]; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423-1424 [“Discretionary relief need not be granted for ‘errors by [counsel]. . . in failing to calendar and appear’ at a hearing.”]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681 [“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.

2022“An ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is complex and debatable,’ but relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ ” (Hopkins & Carley, supra, 200 Cal.App.4th at pp. 1412-1413; accord Tammen, supra, 66 Cal.2d at p. 476 ; State Farm, supra, 90 Cal.App.4th at p. 611 .) Whether a mistake of law 5 constitutes excusable neglect under section 473, subdivision (b) presents a question of fact.

2022“An ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is complex and debatable,’ but relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ ” (Hopkins & Carley, supra, 200 Cal.App.4th at pp. 1412-1413; accord Tammen, supra, 66 Cal.2d at p. 476 ; State Farm, supra, 90 Cal.App.4th at p. 611 .) Whether a mistake of law 5 constitutes excusable neglect under section 473, subdivision (b) presents a question of fact.

2016(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [ 135 Cal.Rptr.3d 1 ]; see Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319 [ 8 Cal.Rptr.3d 627 ] *929 [moving party bears burden under § 473(b)]; see also In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88 [ 41 Cal.Rptr.3d 119 ].) Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.

2016(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [ 135 Cal.Rptr.3d 1 ]; see Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319 [ 8 Cal.Rptr.3d 627 ] *929 [moving party bears burden under § 473(b)]; see also In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88 [ 41 Cal.Rptr.3d 119 ].) Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.

2016(See Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 17 [“[s]ection 473 cannot be used to remedy [a] failure to provide sufficient evidence in opposition to a summary judgment motion”]; Generale Bank Nederland v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1402 [failure to properly prepare for a hearing is not excusable neglect under section 473, subdivision (b)].) DISPOSITION The appeal from the October 3, 2014 judgment is dismissed.

2013Alternatively, MCP argued that its failure to introduce “compelling evidence to show that it is not the alter ego of [Ltd.] or [B.V.], . . . [e]vidence, which was available to MCP, but which Mr. Gutman mistakenly failed to obtain and offer into evidence .. .” constituted excusable neglect under section 473, subdivision (b). “ ‘A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the

2016(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [ 135 Cal.Rptr.3d 1 ]; see Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319 [ 8 Cal.Rptr.3d 627 ] *929 [moving party bears burden under § 473(b)]; see also In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88 [ 41 Cal.Rptr.3d 119 ].) Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.

2016(Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 [ 135 Cal.Rptr.3d 1 ]; see Schwab v. Southern California Gas Co. (2004) 114 Cal.App.4th 1308, 1319 [ 8 Cal.Rptr.3d 627 ] *929 [moving party bears burden under § 473(b)]; see also In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 88 [ 41 Cal.Rptr.3d 119 ].) Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.

2015(See, e.g., Fischer v. First Internal Bank (2003) 109 Cal.App.4th 1433, 1450 [ 1 Cal.Rptr.3d 162 ] [“ ‘The 60-day time limit of C.C.P. 660 is jurisdictional, and cannot be evaded by stipulation or nunc pro tunc order’ ”]; Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518 [ 91 Cal.Rptr.2d 758 ] (Dodge) [“The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order”]; Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 825 [ 96 Cal.Rptr. 773 ] (Meskell) [“The time limits set by

2015(See, e.g., Fischer v. First Internal Bank (2003) 109 Cal.App.4th 1433, 1450 [ 1 Cal.Rptr.3d 162 ] [“ ‘The 60-day time limit of C.C.P. 660 is jurisdictional, and cannot be evaded by stipulation or nunc pro tunc order’ ”]; Dodge v. Superior Court (2000) 77 Cal.App.4th 513, 518 [ 91 Cal.Rptr.2d 758 ] (Dodge) [“The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order”]; Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 825 [ 96 Cal.Rptr. 773 ] (Meskell) [“The time limits set by

2000Agency, Inc., supra, 15 Cal.4th at pp. 56, 64; Siegal v. Superior Court (1968) *518 68 Cal.2d 97, 101 [ 65 Cal.Rptr. 311 , 436 P.2d 311 ]; Jones v. Sieve (1988) 203 Cal.App.3d 359, 369 [ 249 Cal.Rptr. 821 ].) The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order.

2000Agency, Inc., supra, 15 Cal.4th at pp. 56, 64; Siegal v. Superior Court (1968) *518 68 Cal.2d 97, 101 [ 65 Cal.Rptr. 311 , 436 P.2d 311 ]; Jones v. Sieve (1988) 203 Cal.App.3d 359, 369 [ 249 Cal.Rptr. 821 ].) The period may not be enlarged under the rubric of mistake, inadvertence, surprise, excusable neglect under section 473 or by means of a nunc pro tunc order.

1998“Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.” (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 290-291 [ 252 Cal.Rptr. 369 ], fn. omitted, citing Weitz, supra, 63 Cal.2d at p. 855 ; Aldrich, supra, 170 Cal.App.3d at

1998“Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.” (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 290-291 [ 252 Cal.Rptr. 369 ], fn. omitted, citing Weitz, supra, 63 Cal.2d at p. 855 ; Aldrich, supra, 170 Cal.App.3d at

2026(See Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [“the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party”].) 5 in making the motion after discovery of the default.’”’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 ; see also Austin, at p. 928 [“the moving party bears the burden of establishing a right to relief”].) “[F]or inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s n

2025Appellant’s failure to retain counsel and ignorance of the law do not constitute mistake, inadvertence, or excusable neglect under section 473. “‘Although an honest mistake of law is a valid ground for relief where a problem is complex and debatable, ignorance of the law coupled with negligence in ascertaining it will certainly sustain a finding denying relief.’” (Anderson v. Sherman (1981) 125 Cal.App.3d 228, 238 .) “‘[A]ny alleged ignorance of legal matters or failure to properly represent himself can hardly constitute “mistake, inadvertence, surprise or excusable neglect” as those terms are

1998“Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.” (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 290-291 [ 252 Cal.Rptr. 369 ], fn. omitted, citing Weitz, supra, 63 Cal.2d at p. 855 ; Aldrich, supra, 170 Cal.App.3d at

1988DISCUSSION I APPEAL FROM ORDER VACATING DEFAULT AND DEFAULT JUDGMENT (2) Where, as in the present case, a motion to vacate default judgment is made more than six months after the default was entered, the motion is not directed to the court's statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, [4] but rather is directed to the court's inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake. ( Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [ 48 Cal. Rptr. 620 , 409 P.2d 700 ]; Aldrich v.

2022(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 ; accord, Austin v. Los Angeles Unified School Dist., supra, 244 Cal.App.4th at p. 929 .) Under this standard, “we may 15 reverse only if we conclude the trial court’s decision is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 ; accord, Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 .) Where the attorney’s error consists of a mistake of law, in determining whether the mistake is excusab

2022“An ‘honest mistake of law’ can provide ‘a valid ground for relief,’ at least ‘where a problem is complex and debatable,’ but relief may be properly denied where the record shows only ‘ignorance of the law coupled with negligence in ascertaining it.’ ” (Hopkins & Carley, supra, 200 Cal.App.4th at pp. 1412-1413; accord Tammen, supra, 66 Cal.2d at p. 476 ; State Farm, supra, 90 Cal.App.4th at p. 611 .) Whether a mistake of law 5 constitutes excusable neglect under section 473, subdivision (b) presents a question of fact.

2022(See Licudine v. Cedars-Sinai Medical Center (2019) 30 Cal.App.5th 918, 929 [section 473 relief not warranted based on attorney’s “strategic and tactical” decision]; Huh v. Wang (2007) 158 Cal.App.4th 1406, 1423-1424 [“Discretionary relief need not be granted for ‘errors by [counsel]. . . in failing to calendar and appear’ at a hearing.”]; Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 681 [“Conduct falling below the professional standard of care, such as failure to timely object or to properly advance an argument, is not therefore excusable.

2013Alternatively, MCP argued that its failure to introduce “compelling evidence to show that it is not the alter ego of [Ltd.] or [B.V.], . . . [e]vidence, which was available to MCP, but which Mr. Gutman mistakenly failed to obtain and offer into evidence .. .” constituted excusable neglect under section 473, subdivision (b). “ ‘A party who seeks relief under section 473 on the basis of mistake or inadvertence of counsel must demonstrate that such mistake, inadvertence, or general neglect was excusable because the negligence of the attorney is imputed to his client and may not be offered by the

2022(Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257 ; accord, Austin v. Los Angeles Unified School Dist., supra, 244 Cal.App.4th at p. 929 .) Under this standard, “we may 15 reverse only if we conclude the trial court’s decision is ‘“so irrational or arbitrary that no reasonable person could agree with it.”’” (Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1249 ; accord, Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 .) Where the attorney’s error consists of a mistake of law, in determining whether the mistake is excusab

2013To hold otherwise would be to eliminate the express statutory requirement of excusability and effectively eviscerate the concept of attorney malpractice.’ (Ibid.)” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 [ 121 Cal.Rptr.2d 187 , 47 P.3d 1056 ]; see Garcia v. Hejmadi, supra, 58 Cal.App.4th at p. 683 .) The failure to introduce readily available, compelling evidence which supports the client’s position that it is not the alter ego of a sister corporation with a $5.7 million outstanding judgment is not a mistake that a reasonably pmdent person in the same circumstanc

1998“Where, as in the present case, a motion to vacate a default judgment is made more than six months after the default was entered, the motion is not directed to the court’s statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, but rather is directed to the court’s inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake.” (Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 290-291 [ 252 Cal.Rptr. 369 ], fn. omitted, citing Weitz, supra, 63 Cal.2d at p. 855 ; Aldrich, supra, 170 Cal.App.3d at

1988DISCUSSION I APPEAL FROM ORDER VACATING DEFAULT AND DEFAULT JUDGMENT (2) Where, as in the present case, a motion to vacate default judgment is made more than six months after the default was entered, the motion is not directed to the court's statutory power to grant relief for mistake or excusable neglect under Code of Civil Procedure section 473, [4] but rather is directed to the court's inherent equity power to grant relief from a default or default judgment procured by extrinsic fraud or mistake. ( Weitz v. Yankosky (1966) 63 Cal.2d 849, 855 [ 48 Cal. Rptr. 620 , 409 P.2d 700 ]; Aldrich v.

1983The court stated: “An evaluation of an attorney’s neglect under section 473 involves a consideration of the reasonableness of the defaulting attorney’s conduct (see Dockter v. City of Santa Ana, 261 Cal.App.2d 69 , 75 . . .) and of the conduct of the attorney taking the default (e.g., Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486 . . .).” In devoting regular attention to the instant case and avoiding any long periods of inactivity, the reasonableness of Travelers’ attorneys’ conduct in this case is clear.

1977An evaluation of an attorney’s neglect under section 473 involves a consideration of the reasonableness of the defaulting attorney’s *616 conduct (see Dockter v. City of Santa Ana, 261 Cal.App.2d 69, 75 [ 67 Cal.Rptr. 686 ]) and of the conduct of the attorney taking the default (e.g., Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486, 500 [ 284 P.2d 194 ]).

1983The court stated: “An evaluation of an attorney’s neglect under section 473 involves a consideration of the reasonableness of the defaulting attorney’s conduct (see Dockter v. City of Santa Ana, 261 Cal.App.2d 69 , 75 . . .) and of the conduct of the attorney taking the default (e.g., Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486 . . .).” In devoting regular attention to the instant case and avoiding any long periods of inactivity, the reasonableness of Travelers’ attorneys’ conduct in this case is clear.

1977An evaluation of an attorney’s neglect under section 473 involves a consideration of the reasonableness of the defaulting attorney’s *616 conduct (see Dockter v. City of Santa Ana, 261 Cal.App.2d 69, 75 [ 67 Cal.Rptr. 686 ]) and of the conduct of the attorney taking the default (e.g., Smith v. Los Angeles Bookbinders Union, 133 Cal.App.2d 486, 500 [ 284 P.2d 194 ]).

2026(See Esther B. v. City of Los Angeles (2008) 158 Cal.App.4th 1093, 1100 [“the discretionary provision applies to a party, including a party appearing in propria persona, and an attorney representing a party, whereas the mandatory provision only applies to an attorney representing a party”].) 5 in making the motion after discovery of the default.’”’” (Hopkins & Carley v. Gens (2011) 200 Cal.App.4th 1401, 1410 ; see also Austin, at p. 928 [“the moving party bears the burden of establishing a right to relief”].) “[F]or inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant’s n

2025(Cf. Tustin Plaza Partnership v. Wehage (1994) 27 Cal.App.4th 1557, 1566 [plaintiff who unsuccessfully opposed motion to dismiss under section 583.410 for failure to prosecute was “not allowed a second bite” at the apple by filing a motion to vacate the dismissal under section 473 based on attorney neglect].) Instead, Tarbutton’s remedy was to timely appeal the judgment of dismissal and seek a reversal on the grounds he had properly pleaded causes of action in his collateral attack on the judicial foreclosure judgment.

2023Application for this relief . . . shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” To qualify for discretionary relief under section 473, subdivision (b), “the party seeking relief must show (1) a proper ground for relief, and (2) ‘the party has raised that ground in a procedurally proper manner, within any applicable time limits.’” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 229 (Henderson); accord, Huh v. Wang (2007) 158 Cal.App.4th 1406, 1419 (Huh).) As the Court of Appeal in Hen

2023If it is wholly inexcusable it does not justify relief.’” (Henderson, supra, 187 Cal.App.4th at p. 230 ; accord, Austin v. Los Angeles Unified School Dist. (2016) 244 Cal.App.4th 918, 929 (Austin) [“Within the context of section 473(b) neglect is excusable if a reasonably prudent person under similar circumstances might have made the same error.”]; County of Los Angeles v. Financial Casualty & Surety Inc. (2015) 236 Cal.App.4th 37, 44 [bond surety demonstrated excusable neglect and surprise in failing to appear to argue its motion to vacate a bail bond forfeiture after a courtroom clerk misinf