Civil Procedure – Mandatory Versus Discretionary Dismissal Pursuant to C.C.P. §473(b)

Anthony H. Noceti, et al. v. Rex Whorton

Court of Appeal, Third District (March 18, 2014)

Code of Civil Procedure Section 473 has provisions that allow a court to set aside actions taken against a party through mistake, inadvertence, surprise or neglect, and has different provisions for when the court’s power to do so is mandatory, and when it is at the court’s discretion. This case considered whether a plaintiff who failed to appear for trial was entitled to have a judgment in defendant’s favor dismissed under the mandatory provisions of Section 473.

The plaintiffs sued the defendant for specific performance and breach of contract in relation to an agreement to purchase land near Stockton. Trial was set for October 3, 2011. Plaintiffs and their counsel failed to appear for trial. After reviewing the file, the court granted judgment for the defendant in the amount of “$0 principal, $0 pre-judgment interest, $0 attorney fees and $0 costs.” Plaintiffs’ counsel subsequently moved to set aside the judgment pursuant to California Code of Civil Procedure Section 473(b). The motion included counsel’s declaration explaining he erroneously calendared the trial date for October 10, 2011 because of chronic health problems and the loss of his secretary. Plaintiffs’ counsel subsequently succumbed to cancer. The trial court denied plaintiffs’ motion. Plaintiffs retained new counsel and appealed the decision.

Section 473 has a discretionary and mandatory provision. The discretionary provision states 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 mistake, inadvertence, surprise, or excusable neglect. The mandatory provision provides that the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client.

On appeal, the plaintiffs argued the trial court should have granted mandatory relief from the judgment because it was tantamount to a “dismissal” within the meaning of Section 473(b). The appellate court disagreed noting that several decisions had narrowly interpreted the word “dismissal” in the mandatory provision as applying only when a plaintiff’s attorney fails to respond to a dismissal motion, i.e., the procedural equivalent of a default when a defendant fails to answer a complaint. In the present case, the plaintiffs and their counsel did not fail to respond to a dismissal motion. Instead, they failed to appear for trial because the attorney miscalendared the date. The court granted judgment after reviewing the file, not simply because plaintiffs failed to appear for trial. Therefore, the judgment was not tantamount to a “dismissal” within the meaning of the mandatory provision. Rather, it was a judgment for defendant following an uncontested trial. Therefore, the court did not err in denying plaintiffs mandatory relief.

The case was remanded to the trial court for a determination as to whether the plaintiffs were entitled to discretionary relief from the judgment based on their counsel’s excusable neglect in failing to appear for trial.


The decision highlights the advisability of requesting relief under both the mandatory and discretionary provisions of C.C.P. Section 473(b).

For a copy of the complete decision, see: