Mandatory Relief for Attorney Fault Under CCP 473(b)

Under California Code of Civil Procedure Section 473(b), mandatory relief for attorney fault requires a judge to vacate a default, default judgment, or dismissal when the responsible attorney files a sworn affidavit taking the blame, along with a proposed pleading, within six months of entry. The judge has no discretion to refuse if the paperwork is correct. California treats it as fundamentally unfair to let a client lose a case because their lawyer dropped the ball.¹

What the Mandatory Provision Covers

The mandatory language reaches three outcomes only: a clerk-entered default, a default judgment, and a dismissal.¹ If your case ended some other way, this part of the statute does not help you.

California appellate courts have consistently refused to stretch those three categories. A judgment entered after an uncontested trial where the defendant’s lawyer failed to appear is not a “default” under this section, even though it feels like one to the losing party. Neither is a summary judgment granted because an attorney missed a filing deadline. The Legislature chose specific words and the courts read them literally.

Dismissals That Don’t Qualify

Even within the “dismissal” category, courts have drawn a line between dismissals that operate like defaults and those that reflect a deliberate choice or a ruling on the merits. Three types fall outside the statute:

Voluntary dismissals, even ones based on bad advice, because the attorney affirmatively chose to dismiss.
Dismissals after a demurrer is sustained without leave to amend, because the outcome rests on a legal ruling rather than neglect.
Mandatory dismissals for failure to serve the complaint within the three-year window, which the statute does not cover.

The through-line is that mandatory relief targets losses by forfeit. If the lawyer took an affirmative step that led to the outcome, the mandatory provision generally does not apply.¹

The Three Requirements

For the judge to be obligated to grant relief, the motion must clear three conditions. Miss one and the mandatory provision drops away.

An Attorney Affidavit of Fault

The centerpiece is a sworn statement from the attorney who made the mistake, attesting under penalty of perjury that the default or dismissal resulted from their own error, carelessness, or neglect.¹ It is a formal admission of professional failure, not a soft acknowledgment. Without it, the court cannot invoke the mandatory provision, and the motion falls into the discretionary category where the judge has far more room to say no.

One nuance matters: the court can still reject the motion if it finds the attorney’s error did not actually cause the default or dismissal. If the affidavit claims fault for something the attorney could not realistically have caused, the opposing party can argue that the real reason the case ended was unrelated to the lawyer’s conduct.

A Proposed Pleading

The statute requires a copy of the answer or other pleading the party would have filed if the default had not happened.¹ For a defendant, that is usually an answer to the complaint. For a plaintiff whose case was dismissed, it might be an amended complaint. The point is to show the court that the party is ready to litigate now, not just buying time. Skip this and the application cannot be granted.

Proper Form

The motion must be “in proper form,” meaning it complies with California’s general rules for noticed motions: formatting, proof of service, and the supporting declarations. A substantively correct motion can still be rejected if it is procedurally sloppy.

The statute does not require a separate declaration showing the underlying case has merit. That is unusual in California civil procedure, and it means the court cannot deny the motion just because the case looks weak.

The Six-Month Deadline

The statute draws a hard line at six months from the date of entry of the judgment, dismissal, or default.¹ “Entry” means when it appears in the court’s official records, not when the attorney first notices the problem. Once that window closes, mandatory relief is gone, and no amount of attorney remorse can reopen it.

In cases involving ownership or possession of property, a separate rule can shorten the deadline. If the winning party personally serves a written notice within California telling the losing party and their attorney that the judgment was entered and that the right to seek relief will expire in 90 days, that 90-day clock replaces the six-month period, whichever service comes later.¹ Missing the shortened deadline can be devastating because property rights may transfer in the meantime.

What It Costs the Attorney

When the court grants mandatory relief, the financial fallout lands on the attorney, not the client. The statute creates two layers of exposure.

Mandatory Compensatory Fees

The court must order the at-fault attorney to pay the opposing side’s reasonable legal fees and costs caused by the default or dismissal.¹ This is not optional. If the other side had to hire counsel to obtain the default judgment and then respond to the motion to vacate it, those costs come from the attorney’s pocket.

Discretionary Penalties

On top of compensatory fees, the court may impose additional penalties of up to $1,000 on the offending attorney and may direct the attorney to pay up to $1,000 to the State Bar Client Security Fund.¹ These are discretionary, and the statute sets a ceiling, not a floor.

Client Relief Is Not Held Hostage

The court cannot condition the client’s relief on whether the attorney actually pays the ordered fees and penalties.¹ If the court grants mandatory relief, the default or dismissal is vacated regardless of whether the lawyer writes a check. The financial obligations and the client’s case run on separate tracks.

Why an Attorney May Hesitate

Filing an affidavit of fault has consequences beyond the fee award. If the court imposes sanctions of $1,000 or more, it must notify the State Bar, which can trigger a disciplinary investigation.² The same reporting duty applies when a judgment is modified or reversed based in whole or part on attorney misconduct or incompetent representation.³

The sworn affidavit also creates a written record of professional error that can surface in a malpractice claim. If the client suffered financial harm from the default or dismissal, that affidavit is powerful evidence. Some attorneys hesitate to file one even when it would help the client, and clients sometimes need to push for it.

The Discretionary Fallback

When mandatory relief is unavailable, the same statute offers a discretionary alternative. The first part of Section 473(b) lets the court set aside a judgment, dismissal, order, or any other proceeding caused by a party’s or attorney’s mistake, carelessness, or excusable neglect.¹ The scope is broader because it reaches outcomes beyond defaults and dismissals, including summary judgments and judgments after uncontested trials.

The tradeoff is that discretionary relief is harder to get:

The judge must be convinced the mistake was reasonable under the circumstances. Inexcusable neglect, which would still qualify for mandatory relief, is not enough here.
The outer limit is still six months, but the court can deny the motion if it was not filed within a “reasonable time.” Sitting on the problem for four months and filing at the last minute can be fatal.

An attorney affidavit is not required, but the moving party generally needs a stronger overall showing. Many practitioners file under both provisions, arguing mandatory relief first and falling back on discretionary relief if the court finds the situation does not fit the mandatory category.

Federal Court Is Different

If your case is in federal court, this analysis does not apply. Federal Rule of Civil Procedure 60(b) covers similar ground but contains no mandatory relief provision. The rule says the court “may” relieve a party from a judgment based on mistake or excusable neglect, and the decision is always discretionary. No attorney affidavit can force a federal judge’s hand. The federal deadline for a Rule 60(b)(1) motion is a reasonable time, with an outer limit of one year from entry of judgment, but the higher burden offsets the longer window.⁴

1
California Legislative Information. California Code of Civil Procedure CCP 473
2
California Legislative Information. California Business and Professions Code BPC 6086.7
3
Judicial Branch of California. Rule 10.609 – Notification to State Bar of Attorney Misconduct
4
Legal Information Institute. Federal Rule of Civil Procedure 60 – Relief From a Judgment or Order