How to File a Motion to Vacate Dismissal in California

To file a motion to vacate a dismissal in California, you file a noticed motion under Code of Civil Procedure section 473(b) in the Superior Court that dismissed the case, within six months of the dismissal, supported by a sworn declaration explaining what went wrong and accompanied by a copy of the pleading you want to file once the case reopens. The path splits depending on whether the dismissal came from your own mistake or your attorney’s, and that split changes the standard the judge applies and the paperwork you need.

Pick the Right Type of 473(b) Relief First

Section 473(b) contains two different remedies. Choosing between them is the first decision, because it drives every other part of the motion.

Discretionary Relief for Your Own Mistake

The court “may” set aside a dismissal that resulted from your mistake, inadvertence, surprise, or excusable neglect.¹ The judge decides whether your explanation clears the bar. Honest, understandable errors qualify: a calendaring mistake that caused a missed hearing, confusion about which courthouse to appear at, a reasonable misreading of a rule. Ignoring the case, deliberately skipping deadlines, or making no effort to stay informed does not.

You do not have to prove you would win. The statute says no declaration of merits is required.¹ You just have to show the dismissal happened because of an excusable error.

Mandatory Relief When Your Attorney Was at Fault

If your lawyer caused the dismissal, the court “shall” vacate it, provided three conditions are met: the motion is filed within six months of the dismissal, it is in proper form, and it includes a sworn affidavit from your attorney admitting that their own mistake, inadvertence, surprise, or neglect caused the dismissal.¹ The neglect does not need to be excusable the way it does under the discretionary branch.

Two limits are worth knowing. Mandatory relief generally applies to dismissals caused by an attorney’s failure to act, such as missing a hearing or not opposing a motion, rather than losses after a contested proceeding the attorney actually participated in. And the court can decline if it finds the attorney’s error was not the actual cause of the dismissal, for instance where the attorney deliberately ignored obligations rather than making a genuine mistake.² When the branch applies, the court must also order the attorney to pay the opposing party’s reasonable compensatory legal fees and costs, but your case gets reopened regardless of whether the attorney pays.¹

Watch the Six-Month Deadline, and Don’t Wait

The motion must be filed within a reasonable time, and in no case more than six months after the dismissal was entered.¹ The six-month cap is jurisdictional. Once it passes, the court has no authority to grant relief under this statute, regardless of how compelling your reasons are.

Six months is not a target. It is an outer wall. Courts also enforce the “reasonable time” requirement, and every week of unexplained delay weakens a discretionary motion. If you learned about the dismissal in January and file in May, expect the judge to ask what you were doing for four months. Mandatory relief is less sensitive to delay when the attorney affidavit is included, but filing promptly avoids arguments you do not need.

One narrower deadline applies in cases involving real or personal property. If a party serves written notice that the dismissal was entered, the deadline shrinks to 90 days after that notice was served, even if six months has not yet run.¹

What Goes in the Motion Package

A motion to vacate is a package of documents filed together. Missing one can sink the motion before the judge reaches the merits.

A notice of motion identifying the relief you want, the grounds, the statute you rely on, and the hearing date.
A sworn declaration under penalty of perjury explaining exactly what went wrong. For mandatory relief this must be your attorney’s own affidavit admitting fault. For discretionary relief, you or someone with personal knowledge signs it.
A memorandum of points and authorities walking the court through section 473(b), applying the statutory standard to your facts, and citing relevant case law.
A copy of the pleading you intend to file once the case reopens, such as a proposed answer or complaint. The statute is blunt: if the application is not accompanied by the proposed pleading, it “shall not be granted.”¹

The proposed pleading trips filers up more than anything else. It is easy to focus on the declaration and the legal argument and forget the attachment. Without it, the judge has no discretion to grant the motion.

Filing, Service, and Timing the Hearing

File the complete package with the clerk of the Superior Court that dismissed the case. The filing fee for a motion requiring a hearing is $60 as of January 2026.³ The clerk stamps the documents with the filing date, and that stamp is your proof you met the six-month deadline.

Serve every opposing party. Moving papers must be served at least 16 court days before the hearing, counting business days only and excluding court holidays. Mail service within California adds five calendar days to that count.⁴ After serving, file a proof of service showing when, how, and on whom you served. Opposition papers are due nine court days before the hearing; your reply is due five court days before.

What Happens at the Hearing

The judge reviews your declaration, your legal argument, and any opposition. Both sides get a short chance to argue. For discretionary relief, the judge weighs whether the mistake or neglect is genuinely excusable, and courts are instructed to resolve doubts in favor of the party seeking relief because California policy strongly favors resolving cases on their merits.

For mandatory relief, the hearing is more mechanical. If the attorney’s affidavit is in proper form and was filed within six months, the judge confirms the attorney’s error actually caused the dismissal, grants the motion, and addresses the mandatory fee sanction against the attorney.

If the motion is granted, the dismissal is vacated, you file the proposed pleading you attached, and the case moves forward as though the dismissal never happened.

If the Six-Month Window Has Closed

Section 473(b) is not the only route, though it is the primary one. A few alternatives exist when it is unavailable.

If the dismissal or judgment is void because the court lacked jurisdiction or you were never properly served, section 473(d) allows the court to set it aside, and section 473(e) allows a motion to vacate a void default judgment at any time after entry.⁵ A merely voidable order, meaning one the court had authority to enter but got wrong, must still be challenged within the six months.

If a summons was served but you never actually received notice in time to defend, and a default or default judgment was entered, section 473.5 lets you move to set it aside within the earlier of two years after entry of the default judgment or 180 days after written notice of the default or default judgment was served on you.⁶ You must show under oath that your lack of actual notice was not caused by avoiding service or your own inexcusable neglect.

Outside the statutes, California courts retain equitable power to vacate a dismissal for extrinsic fraud or extrinsic mistake, meaning circumstances outside the litigation that unfairly prevented you from getting a hearing on the merits. There is no statutory deadline, but you have to show a meritorious case, a satisfactory explanation for why you did not participate, and diligence once you discovered the dismissal.⁷ This is harder than statutory relief, and unreasonable delay can defeat it under the doctrine of laches.

If the Court Denies the Motion

An order denying a statutory motion to vacate is generally appealable as a post-judgment order. The California Court of Appeal reviews whether the trial court applied the correct legal standard and, for discretionary relief, whether the court abused its discretion. Abuse of discretion is a high bar, but appellate courts do reverse when a trial judge applied the wrong test or ignored strong evidence of excusable neglect. Appeals from denials of mandatory relief are more predictable because the question is largely whether the attorney’s error actually caused the dismissal, and there is less room for subjective judgment.

1
California Legislative Information. California Code of Civil Procedure 473
2
Metropolitan News-Enterprise. Mandatory-Relief Section May Apply to Terminating Sanction
3
California Courts. Statewide Civil Fee Schedule Effective 01-01-2026
4
California Legislative Information. California Code of Civil Procedure 1005
5
California Legislative Information. California Code of Civil Procedure 473 (d)
6
California Legislative Information. California Code of Civil Procedure CCP 473.5
7
California Supreme Court. S277510 – Petition for Review