Can Rule 3(b) control a motion to vacate or set aside a judgment?

Bohan first argues that rule 3(b) does not control because it applies only to "valid" motions to vacate or set aside judgments, and her motion was not "valid." Bohan relies on Wilcox v. Ford (1988) 206 Cal.App.3d 1170, 1178, 254 Cal.Rptr. 138, which holds that "section 473 does not provide grounds to oppose a motion to dismiss. A motion under section 473 may only be brought when dismissal has already been granted, and for the limited purpose of belatedly contesting the dismissal motion on its merits." The quoted passage, however, demonstrates that one may base a motion to vacate on section 473. Bohan implies that because her challenge to the dismissal was primarily legal, i.e., the trial court had erred in not setting the case before the five year period expired, it was not properly brought under section 473.

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