Q: Motion to set aside dismissal, after dismissal was entered through Plaintiff's mistake. Pleading required?
Dismissal against Defendant was entered by mistake or inadvertence by Plaintiff.
When Plaintiff files Motion to Set Aside Dismissal against this Defendant pursuant to CCP section 473(b), is proposed pleading (third amended complaint) required?
What statute guides situation when proposed pleading is not required?
A:
In California, when filing a motion to set aside a dismissal entered through the plaintiff's mistake or inadvertence under Code of Civil Procedure (CCP) section 473(b), a proposed pleading (such as a third amended complaint) is generally not required.
CCP section 473(b) states, in relevant part:
"The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect."
The statute does not explicitly require the submission of a proposed pleading when seeking relief from a dismissal entered through the plaintiff's mistake or inadvertence.
However, it is important to note that local court rules or the specific judge's preferences may require the submission of a proposed pleading. It is always advisable to check the local rules and consult with the court clerk or the judge's chambers to determine if there are any specific requirements for the motion.
In the absence of a local rule or specific requirement by the court, the motion to set aside the dismissal should focus on demonstrating that the dismissal was entered through the plaintiff's mistake, inadvertence, surprise, or excusable neglect, and should provide sufficient justification for the court to grant relief under CCP section 473(b).
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