Q: Is it true statement?
CCP 473(b) is explicit that motion to set aside dismissal shall be accompanied by a pleading, thus amended complaint is required for submission of motion to set aside.
A:
Under California law, Code of Civil Procedure section 473(b) does provide mechanisms for relief from a judgment or order for a party who, through mistake, inadvertence, surprise, or excusable neglect, failed to respond to a legal action in time. This includes motions to set aside dismissals. The statute is designed to ensure that cases can be decided on their merits rather than on procedural technicalities.
When it comes to the requirement for an accompanying pleading, your understanding is generally correct. In the context of a motion to set aside a dismissal, the moving party is indeed expected to submit a proposed pleading that addresses the issues leading to the dismissal. This means that if you are moving to set aside a dismissal, you should include an amended complaint (or another relevant pleading) with your motion. This proposed pleading is crucial because it shows the court what you intend to argue or present should the motion to set aside the dismissal be granted.
It's important, however, to carefully read the specific language of CCP 473(b) and consult with legal counsel for guidance tailored to your specific situation. The requirement for a pleading to accompany the motion is part of ensuring that there is a basis for the court to grant the motion and allow the case to proceed. If you find yourself in a situation requiring such a motion, it's advisable to prepare thoroughly, ensuring that the proposed pleading corrects any deficiencies or addresses any issues that led to the original dismissal.
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