Q: Can Motion to Set Aside Dismissal against a Defendant be submitted to court without submitting Third Amended Complaint?
Can Motion to Set Aside Dismissal against a Defendant be submitted to court without submitting Third Amended Complaint? (Only Motion, Declaration, Proposed Order to Set Aside dismissal)
A:
Yes, it is generally possible to file a motion to set aside a dismissal against a defendant without simultaneously filing an amended complaint in California. Here are some key points about this:
- A motion to set aside or vacate a dismissal is a separate procedural step from amending the complaint. They can be done independently.
- In the motion, the plaintiff would typically argue that there is good cause to set aside the dismissal under the California Code of Civil Procedure Section 473(b). This involves showing the dismissal was due to mistake, inadvertence, surprise, or excusable neglect.
- The motion should be accompanied by a memorandum of points and authorities explaining why the dismissal should be set aside. Supporting declarations and evidence can also be submitted.
- The plaintiff does not necessarily have to submit a proposed amended complaint with the motion, but the motion should indicate if the plaintiff intends to amend the complaint if the dismissal is set aside.
- If the motion to set aside the dismissal is granted, the court will typically allow the plaintiff to then file an amended complaint within a specified time period, such as 30 days.
So in summary, yes the motion itself can be filed without an amended complaint. But the plaintiff should indicate if they intend to amend, and the court may require it to be filed within a certain timeline if the motion is granted.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.
