How Long Is Six Months?

Statutory time periods can be ambiguous.  For example, what does "six months" mean when one month has 28 or 29 days, other months have 30 days and still others have 31 days. 

Section 473  of the California Code of Civil Procedure allows a court to relieve a party (or its legal representative) from a judgment, dismissal, order, or other proceeding taken against it  through its mistake, inadvertence, surprise, or excusable neglect.  A motion to vacate a default judgment and default under the mandatory relief provision of section 473(b) is required to be filed “no more than six months” after the default judgment was entered.  Similarly, a motion for relief under the discretionary relief provision of section 473(b) must be filed “within a reasonable time, in no case exceeding six months,” after the default judgment or other proceeding was taken against the party or the party’s attorney.   In a recent decision, the Fourth District Court explained the meaning of the term "six months".  Jimenez v. Chavez, 2023 WL 7485525.

In Jimenez, a default judgment was entered against the appellant on March 9, 2021 and the appellant filed a motion to vacate on September 9, 2021.  The Court of Appeal took judicial notice of the fact that   September 9, 2021 was 184 days after March 9, 2021, computing the number of days in the time period by excluding the first day and including the last day, which was not a holiday. (citing Evid. Code, §§ 452(h), 459(a); Gov. Code, § 6800; Code Civ. Proc., §§ 12, 12a.).  In  In Davis v. Thayer, 113 Cal. App. 3d 892 (1980), the Second District Court of Appeal concluded that "six months" under the discretionary relief provision of Code of Civil Procedure section 473(b) is equal to a “half year,” and, under Government Code section 6803, a “half year” is 182 days.   Thus, the appellant was out of luck under Davis.  The Court of Appeal, however, declined to follow Davis and instead held that six months be measured by the longer of 182 days or six calendar months.

Securities practitioners will note that six months is the period for measuring so-called short-swing profits under Section 16(b) of the Securities Exchange Act of 1934.  For a discussion of how six months is measured under Section 16(b), see Chapter 11 of Romeo & Dye's Section 16 Treatise and Reporting Guide.

Lest anyone think that definition of "six months" is irrelevant to the California General Corporation Law, see Cal. Corp. Code §§ 423, 1108, 1113, 1304, 1309, 2101, and 2287.

Tags: Section 16