Yeap

Section 473 of the Code of Civil Procedure 1 grants a court discretion “upon any terms as may be just,” to “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.” (§ 473, subd. (b).) In addition, under a separate, mandatory provision, “. . . 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 *594 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.” (Ibid., italics added.)

In Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal.App.4th 40 [ 8 Cal.Rptr.2d 637 ], this court held that the mandatory provision of section 473 does not…

In the majority’s phrasing, the issue in this case is “the applicability of [Code of Civil Procedure] section 473’s mandatory provision where the plaintiff initially fails to appear at the arbitration, resulting in the entry of a defense award, and then fails to timely request a trial de novo.” (Maj. opn., ante, at p. 594.) The majority applies the provision “where the plaintiff loses the opportunity to participate in the arbitration due to negligence of counsel, and the award becomes final also due to attorney misfeasance.” (Ibid.)

*603 The rationale for this result is that, while the arbitrator issued a take-nothing award, “the effect was the same as a dismissal for failure to appear on the first day of trial. . . . Thus, the judgment entered in this matter was analogous to a default because it came about as a result of appellant’s failure to appear and litigate at the arbitration hearing.” (Maj. opn., ante, at p. 601.) I respectfully dissent because the rationale reads more into the statute than is there.

There is no doubt that plaintiff’s situation is the result of errors by her attorneys, first in failing to calendar and appear at the arbitration, and then by failing to…

Section 473 of the Code of Civil Procedure [1] grants a court discretion "upon any terms as may be just," to "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." (§ 473, subd. (b).) In addition, under a separate, mandatory provision, "... 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." ( Ibid., italics added.)

In Ayala v. Southwest Leasing & Rental, Inc. (1992) 7 Cal. App.4th 40 [ 8 Cal. Rptr.2d 637 ], this court held that the mandatory provision of section 473…