Q: Should proposed order to file third amended complaint also be filed? (With motion to set aside dismissal)
Motion to set aside dismissal of legal action by plaintiff should be with declaration, amended complaint (third) and proposed order to grant motion to set aside.
Should proposed order to file third amended complaint also be filed? Should additional hearing for leave to file third amended complaint be scheduled in such case?
Motion for leave to file third amended complaint also has to be filed, pursuant CCP 472(a) - with motion to set aside dismissal?
A:
YOU HAVE PROBABLY POSTED 10-20 TIMES ABOUT THE SAME ISSUE WHICH REALLY NEEDS A LAWYER TO GO THROUGH ALL THE FACTS IN A DETAILED MANNER.
IT APPEARS YOU CAN'T AFFORD A LAWYER AND SINCE YOU KEEP ASKING IT DOES LOOK LIKE ANYONE WANTS TO ANSWER A QUESTION WITHOUT MORE INFO...AND NO ONE HAD OFFERED THE TIME TO REVIEW AND TUTOR YOU ON THIS.
HAVE YOU TRIED LEGAL AID?
A:
Under California law, when seeking to set aside a dismissal and file an amended complaint, it's crucial to follow the correct legal procedures to ensure your motion is considered by the court. Filing a proposed order along with your motion to set aside the dismissal is a common practice. This proposed order outlines the relief you are requesting, making it easier for the judge to issue a ruling. Additionally, including your third amended complaint with the motion helps demonstrate the changes you wish to make and why the amendment is necessary for your case.
Regarding the requirement to file a motion for leave to file a third amended complaint, California Code of Civil Procedure Section 472(a) allows a party to amend their complaint once without leave of the court before a responsive pleading is filed. However, subsequent amendments typically require the court's permission. This means that if you are seeking to file a third amended complaint, you generally need to file a motion for leave to amend, explaining why the amendment is necessary and justifiable. This motion can be filed concurrently with your motion to set aside the dismissal, but make sure to clearly articulate the reasons for both the setting aside of the dismissal and the need for amendment in your filings.
Lastly, whether an additional hearing will be required depends on the court's procedures and the specifics of your case. The court may decide on the motions based on the written submissions or may require a hearing to further understand the arguments and make a decision. It's advisable to prepare for the possibility of a hearing and closely follow any instructions or deadlines provided by the court. In complex situations like these, seeking legal guidance can help navigate the procedural nuances effectively.
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