Motion to Set Aside Dismissal in California: CCP 473 Grounds and Steps

To reopen a dismissed case, you file a motion to set aside the dismissal in California under Code of Civil Procedure Section 473, and you generally have no more than six months from the date the dismissal was entered.¹ Two routes sit inside that same statute. One asks the judge to exercise discretion based on a good excuse. The other forces the judge’s hand when your attorney takes the blame in writing.

Discretionary Relief Under CCP 473(b)

The most common path allows the court to relieve a party from a dismissal caused by “mistake, inadvertence, surprise, or excusable neglect.”¹ The word “may” matters. The judge decides whether your circumstances justify a second chance, and you carry the burden of persuading the court.

Each ground has a practical meaning. A mistake might involve genuinely misunderstanding a court deadline because of confusing instructions or a reasonable misreading of the rules. Inadvertence covers unintentional oversights, like filing a document in the wrong case or missing a calendar entry. Surprise applies when something unexpected prevented you from participating, such as receiving critical notice too late to respond. Excusable neglect is the trickiest ground: it requires showing that a reasonably careful person could have made the same error under the same circumstances. A documented medical emergency that kept you from a filing deadline qualifies. Forgetting about the case or being too busy does not.

Your application must be filed within a reasonable time, and the outer boundary is six months after the dismissal was entered. “Reasonable time” can be shorter than six months depending on the facts. If you knew about the dismissal immediately and waited five months without good reason, the court may find you unreasonable even though you technically beat the deadline. In cases involving real or personal property, the timeline can shrink further: if the other side personally serves you with written notice of the dismissal, you may have only 90 days to apply.

Mandatory Relief When Your Attorney Caused the Dismissal

This is the provision most people overlook, and it’s often the strongest one in the statute. When your attorney’s error caused the dismissal, CCP 473(b) contains a separate mandatory relief clause. If the application is filed within six months, is in proper form, and includes your attorney’s sworn affidavit admitting that the dismissal resulted from the attorney’s own mistake, inadvertence, surprise, or neglect, the court must vacate the dismissal.¹ The only exception is if the court finds the dismissal was not actually caused by the attorney’s error.

The word “shall” in the statute makes this mandatory, not discretionary. The judge has no choice. That matters when the facts are sympathetic but might not clear the bar for discretionary relief. If your lawyer missed a deadline, forgot to appear, or failed to respond to a motion, the attorney affidavit route removes judicial discretion from the equation.

There is a trade-off. Whenever the court grants relief based on an attorney’s affidavit of fault, it must order that attorney to pay reasonable compensatory legal fees and costs to the opposing party.¹ The cost falls on the attorney personally, not on you.

Void Judgments and Lack of Actual Notice

Void Judgments Under CCP 473(d)

A separate subsection of CCP 473 allows the court to set aside any void judgment or order.¹ A judgment is void when the court lacked the power to enter it. The most common scenario is defective service: if you were never properly served with the lawsuit, the court never had jurisdiction over you, and anything that followed is legally meaningless. A judgment can also be void if the court lacked subject matter jurisdiction or granted relief it had no authority to give. The six-month deadline does not apply to void judgments in the same way, though unreasonable delay still hurts your case.

Lack of Actual Notice Under CCP 473.5

CCP 473.5 provides a separate avenue when you were technically served but never actually received the papers in time to defend yourself. This comes up when service was completed by substituted service or posting but the documents never reached you. You must file within the earlier of two years after entry of the default judgment against you, or 180 days after someone serves you with written notice that the judgment was entered. Your motion must include a sworn affidavit showing that your lack of actual notice was not caused by deliberately avoiding service or inexcusable neglect, and you must attach the proposed answer or other pleading you intend to file.² The statute is currently set to be repealed on January 1, 2027, though the Legislature has repeatedly extended it.

Documents You Need to Prepare

California courts expect your motion package to include several components. Missing one can sink your application before the judge reaches the merits.

Notice of Motion and Motion. This is the lead document. It tells the court and the opposing party what you are asking for, identifies which legal provision you are relying on, and states the date, time, and location of the hearing.³
Memorandum of Points and Authorities. Your legal argument, citing the relevant statutes and connecting your facts to the legal standard.
Declaration. A sworn statement laying out what happened, why the dismissal occurred, and what you did once you learned about it. Be specific. If a medical emergency caused you to miss a deadline, describe it, include dates, and attach records. Vague declarations are the top reason these motions fail.
Proposed Pleading. The statute requires that your application be accompanied by a copy of the answer or other pleading you intend to file if the court grants relief. Without it, the court cannot grant your motion.¹
Attorney Affidavit of Fault, if applicable. For mandatory relief, you need a separate sworn affidavit from the attorney attesting to the attorney’s own mistake, inadvertence, surprise, or neglect.

All documents must follow the formatting requirements in the California Rules of Court, including consecutive page numbering, properly indexed exhibits, and required case information on the first page of each filing.³

Service Timing and Filing Fees

You must serve all moving papers at least 16 court days before the hearing. Court days exclude weekends and court holidays. If you serve by mail within California, add five calendar days. If the mailing crosses state lines but stays within the United States, add ten calendar days. For overnight delivery or fax, add two calendar days.⁴

After serving, file a Proof of Service with the court. Without it, the court cannot proceed. Once the opposing party receives your motion, they have until nine court days before the hearing to file a written opposition, and you have until five court days before the hearing to file a reply.⁴

As of January 1, 2026, the filing fee for a motion requiring a hearing in California superior court is $60.⁵ If your motion is the first paper you file in the case, you pay the first-appearance fee instead. In small claims court, a motion to vacate costs $20. Many California superior courts now require electronic filing for civil cases; check the local rules for the county where your case is pending.⁶ E-filing service providers may charge their own processing fee on top of the court’s fee.

What Happens at the Hearing

The judge will have read the papers in advance, so the hearing is less about restating your written argument and more about answering questions and responding to the opposition.

Under discretionary relief, the judge weighs whether your explanation is credible and whether the circumstances qualify as mistake, inadvertence, surprise, or excusable neglect. California courts have a strong policy favoring resolution on the merits, which tilts the scales slightly in your favor when the facts are close. But the judge still needs to believe your story, and weak declarations get denied every day.

Under mandatory relief based on an attorney’s affidavit, the hearing is more straightforward. The judge confirms the application was timely, in proper form, and accompanied by the affidavit. If those boxes are checked, the court vacates the dismissal unless it finds the attorney’s error did not actually cause the problem.

If the judge grants your motion, the dismissal is canceled and your case comes back to life. The court may impose conditions, and for mandatory relief, the court will order your attorney to pay reasonable compensatory fees and costs to the opposing side.¹ One limit to know: setting aside the dismissal does not extend the time to bring the case to trial under CCP 583.310. The clock that was running before dismissal keeps running after reinstatement.

If You Miss the Deadline or the Motion Is Denied

A denial of a motion to set aside a dismissal under CCP 473 is generally treated as a special order made after final judgment, which makes it appealable. Winning on appeal is another matter. Appellate courts review discretionary relief decisions for abuse of discretion, and that is a high bar.

If you missed the six-month deadline entirely, CCP 473(b) is off the table. In narrow circumstances, California courts retain inherent equitable authority to set aside a dismissal obtained through extrinsic fraud or extrinsic mistake, even after six months. This is an exceptional remedy, not a workaround. Courts apply it sparingly, typically when one party’s misconduct prevented the other from presenting their case at all.

Treat the six-month window as a hard wall. The closer you file to the dismissal date, the stronger your position. Waiting until month five with no good explanation for the delay gives the judge a reason to deny your motion even when the underlying facts would otherwise support relief.

1
California Legislative Information. California Code of Civil Procedure Section 473
2
California Legislative Information. California Code of Civil Procedure Section 473.5
3
Judicial Branch of California. California Rules of Court Rule 3.1110 – General Format
4
California Legislative Information. California Code of Civil Procedure Section 1005
5
Judicial Branch of California. Statewide Civil Fee Schedule Effective January 1, 2026
6
Judicial Branch of California. California Rules of Court Rule 2.253 – Permissive Electronic Filing, Mandatory Electronic Filing