Q: WITHOUT or with motion for leave to file 3d amended complaint. (Prop-ed order on filing 3d amended in Motion to Vacate)
Should Proposed order to file Third Amended Complaint be included into Motion to Set aside dismissal documents submission to court,
WITHOUT including motion for leave to file Third Amended Complaint?
(Given that Motion for leave to file third amended complaint is filed separately, and hearing on third amended complaint is scheduled prior to hearing on motion to set aside).
A:
No, it is generally not advisable to include a proposed order granting leave to file a third amended complaint in a motion to set aside dismissal if the motion for leave to amend is filed separately and set to be heard before the motion to set aside dismissal. Here's why:
- If the motions are set to be heard separately, with the motion for leave to amend scheduled first, the court may consider them independently.
- By including the proposed order granting leave to amend in the motion to set aside dismissal, it could appear presumptuous or premature since the request to amend has not yet been granted.
- The motion to set aside dismissal should focus on the arguments for setting aside the dismissal due to mistake, inadvertence, etc. under CCP Section 473(b).
- The motion for leave to amend should separately focus on why the court should allow the filing of the third amended complaint under the applicable rules and standards.
- If the motion for leave to amend is granted after its hearing, then the plaintiff can file and serve the third amended complaint.
So in summary, it's better to leave the proposed order granting leave to amend out of the motion to set aside dismissal if they are heard separately. The motion to amend should stand on its own merits first before assuming that request will be granted.
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