California CCP 473: Mandatory and Discretionary Relief from Default

A California CCP 473 motion to vacate default is the standard way to reopen a case after a default or default judgment has been entered against you. Section 473(b) of the Code of Civil Procedure offers two paths: mandatory relief, where the court must vacate the default once your attorney files a sworn affidavit taking the blame, and discretionary relief, where you convince the judge that your own mistake, inadvertence, surprise, or excusable neglect caused the problem.¹ Both paths share a hard six-month deadline, and both require you to file a proposed answer with your motion. Which path you choose depends on who caused the default and whether you can prove it.

Mandatory Relief Through an Attorney Affidavit

If a lawyer represented you and their conduct caused the default, mandatory relief is usually the strongest option. When your attorney files a sworn affidavit admitting that their own mistake, inadvertence, surprise, or neglect caused the default, the court must vacate it.¹ The judge has no discretion to deny the motion once a valid affidavit is on file. It doesn’t matter whether the attorney’s conduct was merely careless or outright incompetent.

The legislature designed this provision to protect clients from their lawyers’ mistakes. The trade-off is that the attorney pays for the error: the statute requires the court to order the attorney to pay reasonable compensatory legal fees and costs to the opposing side. However, the court cannot condition your relief on whether the attorney actually pays those fees. Your right to get back into the case doesn’t depend on your lawyer’s wallet.

One important limit. Mandatory relief applies only to defaults, default judgments, and dismissals. It does not cover other adverse rulings caused by an attorney’s mistake. If you lost a contested motion because your lawyer failed to file an opposition brief, this provision won’t help.

Discretionary Relief for Your Own Mistake

If you were representing yourself or your own actions caused the default, you’ll need discretionary relief. The court can set aside a default if you show it resulted from your own honest mistake, inadvertence, surprise, or excusable neglect.¹ Each term covers different ground. A mistake of fact means you genuinely misunderstood something important about the lawsuit or the deadline. A mistake of law means you misread a procedural rule. Surprise covers something unexpected that you couldn’t reasonably have anticipated. Excusable neglect is the trickiest category: you missed a deadline, but a reasonably careful person in your situation might have done the same.

The word “excusable” does real work here. If you tossed the court papers in a drawer and forgot about them, that’s inexcusable neglect, and the court will deny your motion. The same goes for a deliberate decision to ignore the lawsuit in hopes it would go away. Judges look for something more sympathetic: a serious illness, a family emergency, a genuine misunderstanding about whether you were properly served. They also care about how fast you moved once you realized the default had been entered. Sitting on your hands for months after discovering the problem undercuts your argument that the original neglect was excusable.

Because this is discretionary, the judge weighs the facts and makes a judgment call. California courts have consistently said they prefer resolving cases on the merits rather than on procedural technicalities, which tilts the scale in your favor if the facts are close.² That preference is not a free pass. You carry the burden of proof, and if your explanation doesn’t hold up, the motion gets denied.

The Six-Month Deadline

Both discretionary and mandatory relief share the same hard cutoff: the motion must be filed within six months.¹ For discretionary relief, the clock runs from the date the judgment, dismissal, order, or other proceeding was entered. For mandatory relief, it runs from entry of the judgment. Courts treat this deadline as jurisdictional. A judge cannot grant relief under Section 473(b) if you file even one day late, no matter how compelling your story.

Six months is a ceiling, not a target. The statute also requires that a discretionary motion be brought within a “reasonable time.” If you discovered the default in week two but waited until month five to file, a judge could deny the motion on the ground that you didn’t act promptly, even though you technically beat the six-month cutoff. File as soon as you learn about the default.

What Your Motion Must Include

There is no single mandatory Judicial Council form for a motion to vacate a default in general civil cases. Form CIV-100 sometimes comes up in these discussions, but that form is used by the plaintiff to request entry of a default against you, not by defendants seeking to undo one.³ You prepare the motion using standard noticed-motion papers. Check your local court’s rules, because some counties have specific formatting requirements or local forms.

A complete motion generally includes:

A notice of motion telling the court and the opposing party the date, time, and location of the hearing. California law requires at least 16 court days’ notice before the hearing date, plus additional time if you serve by mail.
A supporting declaration under penalty of perjury explaining what happened: why you didn’t respond to the lawsuit, when you learned about the default, and what you did once you found out. For mandatory relief, this must be an attorney affidavit of fault in which your lawyer takes responsibility for the error.
A proposed responsive pleading. The statute requires you to attach a copy of the answer or other pleading you plan to file if the default is lifted. Without it, the court cannot grant your motion. The proposed answer should address the claims in the complaint and lay out your defenses. The court wants to see that you have a real case to make.¹
A memorandum of points and authorities explaining the legal basis for your motion.

Filing, Hearing, and Conditions the Court May Impose

Once your papers are ready, file them with the court clerk. The filing fee for a noticed motion in California superior court is $60 as of 2026.⁴ Serve a complete copy of everything on the opposing party or their attorney.

At the hearing, the judge reviews your declaration, evaluates the timeline, and may ask questions about what caused the default and how quickly you responded. If the other side opposes the motion, they will argue that your neglect was inexcusable, that you waited too long, or that vacating the default would cause them real prejudice. The burden of proving prejudice falls on the party opposing the motion, and simply having spent money litigating the case doesn’t automatically qualify.

When relief is granted, the court often attaches conditions. For mandatory relief based on an attorney affidavit, the statute requires the court to order the attorney to pay the other side’s reasonable legal fees and costs. For discretionary relief, the judge has broad latitude: common conditions include requiring you to pay the opposing party’s attorney fees incurred because of the default, setting a tight deadline for filing your answer, or imposing other terms the court considers fair. The default judgment gets vacated, and the case returns to the point where you can file your responsive pleading and litigate on the merits.

When CCP 473(b) Doesn’t Fit

Section 473(b) is not the only route. If it doesn’t match your facts, three other paths may.

No Actual Notice: CCP 473.5

Section 473.5 is a separate provision for defendants who were technically served but never actually received notice of the lawsuit in time to respond. That happens more often than you might expect: papers left with a roommate who never passed them along, substitute service at an old address, or service on someone who didn’t understand what the documents were.⁵

The deadline under Section 473.5 is more generous. You must file within a reasonable time, but the outer limit is the earlier of two years after entry of the default judgment or 180 days after someone serves you with written notice that the default or judgment has been entered.⁵ You must file a sworn declaration showing you didn’t receive actual notice in time to defend, and that your lack of notice wasn’t caused by deliberately avoiding service or inexcusable neglect. Include a copy of your proposed responsive pleading.

Equitable Relief After Six Months

Missing the six-month deadline doesn’t necessarily end the fight. California courts retain the power to vacate a default on equitable grounds even after the statutory period expires.⁶ The bar is deliberately high. You must show a meritorious defense to the underlying case, provide a satisfactory explanation for why you didn’t respond to the original lawsuit, and demonstrate that you acted diligently once you discovered the default.

Extrinsic fraud or extrinsic mistake is the most common basis. Extrinsic fraud means the other side did something outside the normal litigation process that prevented you from participating, such as falsely telling you they wouldn’t pursue the lawsuit or filing a fraudulent proof of service. Intrinsic fraud, like perjury during testimony, generally won’t support equitable relief because you had the opportunity to participate and challenge it.

Void Judgments

If the default judgment is void, you have an even stronger argument. A judgment entered without proper jurisdiction, such as one based on service that never actually happened, can be challenged at any time. Void judgments are a nullity, and the court’s inherent power to set them aside isn’t subject to the six-month deadline.

Choosing Your Path

If a lawyer represented you and caused the default, mandatory relief through an attorney affidavit is the cleanest option, because the court has no discretion to deny it. If your own conduct caused the problem, discretionary relief requires you to convince the judge your neglect was excusable. If you never actually received notice, Section 473.5 gives you more time and a different argument. And if you’ve blown past the statutory deadlines, equitable relief or a void-judgment challenge may still be available.

Whichever path fits, move fast. Courts reward prompt action and punish delay. The strongest motion loses credibility when it’s filed at the tail end of a deadline by someone who knew about the default for months.

1
California Legislative Information. California Code of Civil Procedure CCP 473
2
Justia. California Supreme Court – Zamora v Clayborn Contracting Group Inc
3
California Courts. Request for Entry of Default (Application to Enter Default) (CIV-100)
4
California Courts. Statewide Civil Fee Schedule Effective January 1 2026
5
California Legislative Information. California Code of Civil Procedure CCP 473.5
6
Justia. Rappleyea v Campbell (1994)