Metropolitan News-Enterprise


Wednesday, November 15, 2023


Page 3


‘Six Months’ Does Not Necessarily Mean 182 Days—C.A.

Contrary View in 1980 Opinion Repudiated


By a MetNews Staff Writer


The six-month period within which to bring a motion under the mandatory-relief section of Code of Civil Procedure §473(b), entailing an attorney’s admission of fault where a default has occurred, does not necessarily mean that the motion is barred after 182 days, Div. Two of the Fourth District Court of Appeal has held, rejecting a contrary view set forth in 1980 by this district’s Div. Four.

At issue was the meaning of this sentence in §473(b):

“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.”

1980 Opinion

The 1980 decision in Davis v. Thayer relies on Government Code §6803, which provides:

“ ‘Year’ means a period of 365 days; ‘half year,’ 182 days; ‘quarter of a year,’ 91 days. The added day of a leap year, and the day immediately preceding, if they occur in any such period, shall be reckoned together as one day.”

The court in Davis held:

“[W]e know that in ordinary usage one year is the equivalent of twelve months and that half a year must be the equivalent of six months. In construing section 473 should we determine that “six months” refers to “half a year,” and is within section 6803 of the Government Code….”

Fields’s Opinion

Justice Richard T. Fields said in Monday’s decision:

“We decline to follow Davis to the extent it may be interpreted as limiting the six-month limitations periods of section 473(b) to 182 days in all cases.”

He declared that a motion for relief filed 184 days after a default judgment was entered was timely. He pointed to Government Code §6804 which says:

“ ‘Month’ means a calendar month, unless otherwise expressed.”

Fields noted:

“[T]he number of days in six calendar months varies from 181 to 184 days.”

Dual Standard

He said:

“We conclude that the six-month limitations period of the mandatory and discretionary relief provisions of section 473(b) is either 182 days or six calendar months, whichever period is longer.”

A default judgment in the case had been entered on March 9, 2021, and the motion was made on Sept. 9, 2021.

Although the motion was timely under the “six-calendar month rule,” Fields said, “it was nonetheless properly denied because it was unaccompanied by a proposed responsive pleading” as required by §473(b).

The opinion affirms an order by San Bernardino Superior Court Judge John M. Pacheco denying relief from default.

The case is Jimenez v. Chavez, 2023 S.O.S. 4062.


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