Setting Aside Family Court Orders
CCP Section 473 is a civil statute that applies in all family law proceedings.
It provides a six-month window to seek to set aside the court's orders
presumably rendered against you by reason of your reasonable "inadvertence,"
"surprise", or "mistake".
If your set aside is not from an order, but from a default or default judgment
entered against you because you didn't file a Response - maybe because
you were never really served with the Summons and Petition, read
CCP Section 473.5
Notice subsection (b) of CCP section 473, where the lawyer needs to jump
on the grenade and admit the mistake was their own - it is has higher
likelihood of succeeding, however - surprise - attorneys have a hard time
CALIFORNIA CODE OF CIVIL PROCEDURE
MISTAKES IN PLEADINGS AND AMENDMENTS
C.C.P. Section 473
(a) (1) The court may, in furtherance of justice, and on any terms as may
be proper, allow a party to amend any pleading or proceeding by adding
or striking out the name of any party, or by correcting a mistake in the
name of a party, or a mistake in any other respect; and may, upon like
terms, enlarge the time for answer or demurrer. The court may likewise,
in its discretion, after notice to the adverse party, allow, upon any
terms as may be just, an amendment to any pleading or proceeding in other
particulars; and may upon like terms allow an answer to be made after
the time limited by this code.
(2) When it appears to the satisfaction of the court that the amendment
renders it necessary, the court may postpone the trial, and may, when
the postponement will by the amendment be rendered necessary, require,
as a condition to the amendment, the payment to the adverse party of any
costs as may be just.
(b) 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. Application for this relief shall be accompanied
by a copy of the answer or other pleading proposed to be filed therein,
otherwise the application shall not be granted, and shall be made within
a reasonable time, in no case exceeding six months, after the judgment,
dismissal, order, or proceeding was taken. However, in the case of a judgment,
dismissal, order, or other proceeding determining the ownership or right
to possession of real or personal property, without extending the six-month
period, when a notice in writing is personally served within the State
of California both upon the party against whom the judgment, dismissal,
order, or other proceeding has been taken, and upon his or her attorney
of record, if any, notifying that party and his or her attorney of record,
if any, that the order, judgment, dismissal, or other proceeding was taken
against him or her and that any rights the party has to apply for relief
under the provisions of Section 473 of the Code of Civil Procedure shall
expire 90 days after service of the notice, then the application shall
be made within 90 days after service of the notice upon the defaulting
party or his or her attorney of record, if any, whichever service shall
be later. No affidavit or declaration of merits shall be required of the
moving party. Notwithstanding any other requirements of this section,
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, unless the court finds that the default
or dismissal was not in fact caused by the attorney's mistake, inadvertence,
surprise, or neglect. The court shall, whenever relief is granted based
on an attorney's affidavit of fault, direct the attorney to pay reasonable
compensatory legal fees and costs to opposing counsel or parties.
However, this section shall not lengthen the time within which an action
shall be brought to trial pursuant to Section 583.310.
(c) (1) Whenever the court grants relief from a default, default judgment,
or dismissal based on any of the provisions of this section, the court
may do any of the following:
(A) Impose a penalty of no greater than one thousand dollars ($1,000) upon
an offending attorney or party.
(B) Direct that an offending attorney pay an amount no greater than one
thousand dollars ($1,000) to the State Bar Client Security Fund.
(C) Grant other relief as is appropriate.
(2) However, where the court grants relief from a default or default judgment
pursuant to this section based upon the affidavit of the defaulting party's
attorney attesting to the attorney's mistake, inadvertence, surprise,
or neglect, the relief shall not be made conditional upon the attorney's
payment of compensatory legal fees or costs or monetary penalties imposed
by the court or upon compliance with other sanctions ordered by the court.
(d) The court may, upon motion of the injured party, or its own motion,
correct clerical mistakes in its judgment or orders as entered, so as
to conform to the judgment or order directed, and may, on motion of either
party after notice to the other party, set aside any void judgment or order.