Tuesday, December 23, 2025
Page 3
Court of Appeal:
CCP §473(b)’s Discretionary Relief Applies to Absence at Trial
However, Opinion Says, Statute’s Mandatory Provision Cannot Be Invoked Under That Circumstance
By a MetNews Staff Writer
The discretionary facet of Code of Civil Procedure §473(b) may be invoked to gain relief from a judgment following an uncontested trial, but the mandatory provision is inapplicable, Div. Six of the Court of Appeal for this district declared yesterday.
Justice Tari L. Cody authored the unpublished opinion. It reverses a judgment by Ventura Superior Court Judge Mark Borrell based on his failure to consider on the merits a motion for discretionary relief brought by defendants Jose and Liz Aranda who did not show up for trial because, they allege, their lawyer did not tell them where and when to appear.
Judgment was entered for the plaintiff, Alma Perez, in the amount of $33,275 in connection with a dispute over the sale of a business.
Language of §473(b)
Borrell reasoned that discretionary relief is available only where there was a default or default judgment, and not where the case was tried. Cody pointed out that the discretionary portion of §473(b) says:
“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.”
Cody wrote:
“In fact, discretionary relief is available for ‘a judgment, dismissal, order, or other proceeding.’…Thus, in denying the motion the court failed to determine whether appellants’ and their attorney’s failure to appear at trial was excusable, or if inexcusable, whether their attorney’s conduct was so egregious it effectively resulted in an abandonment of the attorney-client relationship such that it could not be imputed to appellants.
“The court’s refusal to consider the merits of appellants’ motion under the discretionary provision was plain error….Failure to exercise discretion constitutes an abuse of discretion compelling reversal.”
Mandatory-Relief Provision
The Arandas also made their motion under the mandatory-relief provision. It says that where an attorney executes an affidavit of fault “attesting to his or her mistake, inadvertence, surprise, or neglect,” the court shall “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” where it is found that the consequence did flow from the lawyer’s failing.
The appellants argued that “a judgment entered after a one-sided prove-up trial is the procedural equivalent of a default judgment.” (It is implied but not stated in the opinion that the lawyer did execute an affidavit of fault.)
Cody followed the view the Third District Court of Appeal expressed in 2006 in Vandermoon v. Sanwong that “the mandatory provision of section 473(b) does not apply to a judgment entered after an uncontested trial in a defendant’s absence because such a judgment is neither a ‘default,’ a ‘default judgment’ nor a ‘dismissal’ within the meaning of section 473(b).”
Contrary View
A contrary view had been stated in 2000 by this district’s Div. Seven in Hock v. Gordon-Hock. Presiding Justice Paul Turner (now deceased) declared in that opinion that under case law, “section 473 may be used for relief under circumstances, which have been determined to be the procedural equivalent of a default” and that an “attorney’s failure to appear at the time set for trial constituted a ‘default’ within the meaning of section 473, subdivision (b).”
However, Turner, based on reasoning in subsequent cases, in his 2017 opinion in The Urban Wildlands Group, Inc. v. City of Los Angeles, repudiated the position he had taken in Hock.
Cody’s opinion comes in Perez v. Aranda, B342303.
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