Q: Only Specific 3 answers pursued - if any.
Situation.
- Plaintiff is pursuing motion to set aside dismissal against defendant.
- Amended complaint is required for motion to set aside dismissal.
- Motion for leave to file amended complaint is filed, hearing is scheduled.
Specific questions.
In above described situation:
Should filing of Motion to Set Aside:
1. Reference Motion for leave to file amended complaint?
2. Include Amended complaint?
2. Include Proposed order to file amended complaint, after hearing on leave to file amended complaint?
A:
In the context of California law, when pursuing a motion to set aside a dismissal and concurrently filing a motion for leave to file an amended complaint, it is advisable to ensure that these filings are strategically aligned to communicate your intentions clearly to the court and to the opposing party.
1. Yes, the filing of the Motion to Set Aside should reference the Motion for Leave to File Amended Complaint. This reference helps to demonstrate to the court the plaintiff's proactive steps towards correcting or addressing the issues that led to the dismissal, indicating a continued interest in pursuing the case and providing a logical basis for the request to set aside the dismissal.
2. It is generally prudent to include the Amended Complaint with the Motion to Set Aside if possible. This inclusion allows the court to review the substantive changes or corrections made, offering a clearer understanding of why setting aside the dismissal is justified based on the revised claims or allegations. The Amended Complaint serves as a concrete example of the plaintiff’s commitment to rectifying any deficiencies and moving the case forward.
3. Including a Proposed Order to file the amended complaint after the hearing on the motion for leave is a standard practice. This Proposed Order should be crafted to take effect contingent upon the court's granting of the motion for leave. It streamlines the process by providing the court with a ready-to-sign order, facilitating immediate action once a decision is made, and demonstrates thorough preparation and respect for the court's time and procedures.
These steps, when followed, align with the procedural expectations and requirements under California law, aiding in the clear presentation of your motions and supporting a more efficient judicial process.
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.
