By: Eric Michael Papp, Esq.


To Default or Not to Default - California Code of Civil Procedure section 473(b)

You have served the defendant and are in contact with their attorney. You are talking settlement, but the time to respond for the defendant is at hand, do you take their default without first notifying defense counsel? You can, but should you?

California Code of Civil Procedure section 473(b) provides in pertinent part, "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." Such a request without an attorney "affidavit of fault" is discretionary with the trial court.

In Elston v. City of Turlock, (1985) 38 Cal. 3d 227, a personal injury case where Requests for Admissions were to be deemed admitted, the California Supreme Court stated,

[CCP] Section 473 permits the trial court to ‘relieve a party ... from a judgment, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise or excusable neglect.’ A motion seeking such relief lies within the sound discretion of the trial court, and the trial court's decision will not be overturned absent an abuse of discretion. (Citations omitted). However, the trial court's discretion is not unlimited and must be ‘exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’ (Citations omitted). (Elston, 38 Cal. 3d at 232-233).

The Elston Court went on to state,

[CCP] Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted. (Citations omitted). In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’ (Citations omitted). (Elston, 38 Cal. 3d at 233).

The Elston Court finally noted,

Moreover, because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default. (Citations omitted). Therefore, a trial court order denying relief is scrutinized more carefully than an order permitting trial on the merits. (Citations omitted) (Elston, 38 Cal. 3d at 233-234).

In the case of Smith v. Los Angeles Bookbinders Union No. 63 (1955) 133 Cal.App.2d 486 (disapproved on other grounds in MacLeod v. Tribune Pub. Co., Inc. (1959) 52 Cal. 2d 536, 551), the Court noted,

The law does not favor snap judgments. The policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party who, regardless of the merits of his case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary. (Smith, 133 Cal.App.2d at 499).

The Smith Court went on to state,

The quiet speed of plaintiffs' attorney in seeking a default judgment without the knowledge of defendants' counsel is not to be commended. Volume 2, Witkin California Procedure, section 59, page 1694, says: ‘There is no statutory or rule requirement that the plaintiff's attorney notify the defendant's attorney (if known) that he intends to take a default. But failure to do so will usually be a sufficient ground for setting the default aside on motion under C.C.P. 473.’ (Smith, 133 Cal.App.2d at 500).

So, while there is no statutory prohibition on such a dastardly move, it is certainly unethical and unprofessional. Furthermore, should the court grant the motion and set aside the default, plaintiff’s counsel has set the tone and tenor of the case moving forward. A cautionary note for plaintiff’s counsel so tempted, do not make any mistakes or ask for any favors going forward.


Eric Papp is a licensed attorney in both California and Nevada and a licensed Real Estate Broker. Mr. Papp is the principal of the Law Offices of Eric Michael Papp located at 495 East Rincon, Suite 125, Corona, CA 92879. Mr. Papp can be reached at (951) 279-6700



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