The California Code of Civil Procedure 473 (effective 1997) concerns a party’s right to amend a pleading filed in a court action. The court has discretion on whether a party may add or remove the name of a party, or correct a mistake in a pleading.
- Additionally, the court may alter the time for response of the opposing party.
- The code also states the court has the right to allow an answer to be filed beyond the time a pleading stated. If an amendment to a pleading makes it necessary, the court may postpone a trial and require payments to an opposing party.
Subsection (b) of the code states the court has the ability to relieve a party or their legal representative from a judgment, dismissal, order, or other proceeding against them due to the party or legal representative’s error or neglect. If seeking said relief, the code outlines the requirements for the request and how they shall be filed with the court, as well as the time span in which the request must be filed; no longer than six months after the judgment, dismissal, order or proceeding was taken.
However, the code mandates that in the case of a court action concerning the right to real or personal property, after notice has been served, the party seeking relief must apply for relief under the provisions of Section 473 of the Code of Civil Procedure and the right to relief shall expire 90 days after notice is served. Further, it states that an affidavit or declaration of merits shall be required to be furnished by the moving party.
The code also concerns the procedure followed when an application for relief is made no more than six months after the judgment entry, and said application is accompanied by an attorney’s sworn affidavit testifying to their mistake, surprise, or neglect. According to the code, the court shall vacate any resulting default entered against the attorney’s client, or resulting default judgment or dismissal entered against the client, unless the court finds that the dismissal was not cost by the attorney’s mistake, surprise or neglect. The code outlines how the court shall direct the attorney to pay the reasonable court fees and costs to the opposing counsel or parties.
Section 583.310 and Timing
However, pursuant to Section 583.310, the code declares the time within which an action shall be brought will not be lengthened. If a court grants relief from a default, default judgment or dismissal according to the provisions of this section, the court reserves the right to impose a penalty of $1,000.00 or less upon the offending attorney or party, direct that the attorney pay $1,000.00 or less to the State Bar Client Security Fund, or grant other relief it deems as appropriate.
- When the court grants relief from a default or default judgment based upon the affidavit of the defaulting party’s attorney, the relief will not be made conditional upon the attorney’s payment of said fees or penalties imposed by the court.
- The court may also correct clerical mistakes when motion is made by the injured party or the court makes it motion to do so.
- The court may also set aside any void judgment or order upon motion of either party.