What is the test for an application for relief from default under section 473 of the Code of Civil Procedure?

California, United States of America


The following excerpt is from Luz v. Lopes, 6 Cal.Rptr. 412 (Cal. App. 1960):

There is no merit in any of these contentions. The application for relief from default having been made under the provisions of section 473 of the Code of Civil Procedure, was addressed to the sound discretion of the trial court, and its ruling will not be interfered with by an appellate tribunal in the absence of a clear showing of abuse of such discretion. Proulx v. De Moti, 106 Cal.App.2d 265, 234 P.2d 1009. It is the policy of the law that every case should be heard on its merits and the discretion of the trial court is to be exercised in conformity with the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.

Page 416

However, there are certain rules for the application of this section, which have been well stated in Elms v. Elms, 72 Cal.App.2d 508, 513, 164 P.2d 936, 939, as follows:

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