# Cal. Code Civ. Proc. §§ 473-473.5 — Relief from Default and Default Judgment

- Citation: Cal. Code Civ. Proc., §§ 473-473.5
- Code: Code of Civil Procedure
- Subject: Relief from default, default judgment, and other relief
- Source: https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=CCP
- Last verified: 2026-05-13

> Authored from canonical California statutory sources; verify
> against leginfo.legislature.ca.gov before relying.

## Overview

CCP § 473 is the primary California vehicle for setting aside
defaults, default judgments, and other orders. The most-litigated
provision is § 473(b) (the "any other or further mistake,
inadvertence, surprise, or excusable neglect" subdivision, plus
the **mandatory** attorney-affidavit-of-fault provision).

## § 473(a) — Amendment of pleadings

**(a)(1)** The court may, in furtherance of justice, and on
any terms as may be proper, allow a party to amend any pleading
or proceeding by adding or striking out the name of any party,
or by correcting a mistake in the name of a party, or a mistake
in any other respect; and may, upon like terms, enlarge the
time for answer or demurrer. The court may likewise, in its
discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding
in other particulars.

## § 473(b) — Relief from default — DISCRETIONARY and MANDATORY

This is the workhorse provision. It has TWO parts:

### Discretionary relief (first sentence)

The court may, upon any 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 excusable neglect**.
Application for this relief shall be accompanied by a copy of
the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted, and shall be
made **within a reasonable time, in no case exceeding six
months**, after the judgment, dismissal, order, or proceeding
was taken.

### Mandatory relief (second sentence — attorney affidavit of fault)

Notwithstanding any other provision 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.

### Key distinctions

| Type | Standard | Who relieved | Deadline |
|---|---|---|---|
| Discretionary | "Mistake, inadvertence, surprise, or excusable neglect" — court has discretion | Party or attorney | 6 months "reasonable" |
| Mandatory | Attorney attests to fault | Client (NOT the attorney) | 6 months HARD |

### Practical implications

**Discretionary relief** requires showing that the moving party's
neglect was reasonable under the circumstances — "what a person
of ordinary prudence might have done in similar circumstances."

**Mandatory relief** does not require showing reasonableness —
if the attorney attests to fault and the motion is timely, the
default MUST be vacated, even if the neglect was unreasonable.
The remedy is then against the attorney, not against the client.
*Zamora v. Clayborn Contracting Group, Inc.* (2002) 28 Cal.4th
249 is the leading case.

### What must accompany the motion

- A copy of the proposed pleading (answer, demurrer, etc.) the
  party intends to file
- For mandatory relief: the attorney's affidavit of fault
- For discretionary relief: a declaration showing the mistake,
  inadvertence, surprise, or excusable neglect; and a
  reasonable explanation of the delay

### The "6 months" clock

The 6 months runs from the date the **judgment, dismissal, or
order** was entered (the date the clerk's entry was made), NOT
from the date the party learned about the default.

A motion outside the 6-month window cannot get § 473(b) relief
— must rely on § 473(d), § 473.5, or extrinsic-fraud /
extrinsic-mistake equity grounds.

### Pro per implications

Pro per litigants can use § 473(b) discretionary relief. The
mandatory-relief provision applies only when an attorney attests
to fault; a pro per litigant who missed a deadline cannot
"swear an affidavit of attorney fault" because there is no
attorney.

## § 473(c) — Stay of execution pending motion

The court, with or without security, may, upon the motion of a
party who is dissatisfied with a default order, judgment, or
other ruling, stay the execution thereof to allow the moving
party to file and have heard a motion under subdivision (b).

## § 473(d) — Relief from VOID judgments

**The court may, upon motion of the injured party, or its own
motion, correct clerical mistakes in its judgment or orders as
entered, so as to conform to the judgment or order directed,
and may, on motion of either party after notice to the other
party, set aside any void judgment or order.**

### Key distinction from § 473(b)

- § 473(b) → defaults / judgments / orders taken through
  mistake, etc. (judgment is voidable; 6-month deadline)
- § 473(d) → judgments that are **void** (no jurisdiction; no
  proper service; etc.). **NO TIME LIMIT** to challenge a void
  judgment.

### Examples of "void"

- Default judgment entered without service of summons (no
  personal jurisdiction)
- Judgment entered against party never properly served
- Judgment exceeding the amount demanded in the complaint
  (statement of damages requirement; CCP § 580 limits relief
  to amount demanded)
- Judgment entered in violation of automatic stay (bankruptcy)
- Judgment in excess of subject-matter jurisdiction

## § 473.5 — Default judgment when service did not result in actual notice

If service of a summons has not resulted in actual notice to
a party in time to defend the action and a default or default
judgment has been entered against him or her in the action,
he or she may serve and file a notice of motion to set aside
the default or default judgment and for leave to defend the
action.

**(a)** The notice of motion shall be served and filed within
a reasonable time, but in no event exceeding the earlier of:

(1) Two years after entry of a default judgment against him
or her; or

(2) 180 days after service on him or her of a written notice
that the default or default judgment has been entered.

### Practical use

§ 473.5 is the vehicle for setting aside a default when service
was nominally valid (e.g., substituted service was effected)
but the defendant did NOT actually receive notice. The
defendant must show:

1. Service did not result in actual notice in time to defend
2. Default or default judgment was entered
3. Defendant's lack of actual notice was not caused by avoidance
   or inexcusable neglect

### CCP § 473.5 vs. § 473(b) vs. § 473(d)

| Defect | Use | Deadline |
|---|---|---|
| Service was valid; defendant just missed deadline | § 473(b) discretionary | 6 months from entry |
| Service was valid; attorney's fault | § 473(b) mandatory | 6 months from entry |
| Defendant was never properly served; judgment void | § 473(d) | No time limit |
| Service was nominally valid but defendant had no actual notice | § 473.5 | Earlier of 2 years from entry or 180 days from notice of entry |

## Practical pleading

### Motion structure

A § 473(b) motion typically includes:

1. **Notice of Motion** — date, time, dept., grounds,
   supporting papers
2. **Memorandum of P&A** — explaining the standard, the facts,
   why relief should be granted
3. **Declaration of party (or attorney) explaining the mistake**
   — for mandatory relief, the attorney's affidavit of fault
4. **Proposed pleading** (answer, etc.)
5. **Proposed Order**
6. **Proof of Service**

### Common defects in § 473 motions

- Missing the proposed pleading (required attachment)
- Missing the timeliness analysis (when was default entered;
  when is the 6-month clock)
- Conflating discretionary and mandatory relief — pleading the
  wrong standard
- Missing facts supporting the mistake, inadvertence, surprise,
  or excusable neglect
- For § 473.5: missing the "actual notice" analysis

## Cross-references

- `CCP-Pleadings.md` — answer / demurrer / cross-complaint
  that will accompany the proposed pleading
- `CCP-Service.md` — service rules; void-judgment analysis
  under § 473(d) often turns on improper service
- `../../../ca-post-judgment/SKILL.md` — workflow that uses
  these statutes
- `../../../ca-post-judgment/references/motion-to-vacate.md`
  — practitioner-facing § 473 guidance
- Leading case: *Zamora v. Clayborn Contracting Group, Inc.*
  (2002) 28 Cal.4th 249 (mandatory relief under § 473(b))