Los Angeles, CA asked in Personal Injury and Medical Malpractice for California

Q: requirement for amended pleading pursuant ccp 473 (b) for motion to set aside dismissal, with ccp 473 (a) (1) leave

When complaint has to be amended pursuant ccp 473 (a) (1), requirement for amended pleading (complaint) pursuant ccp 473 (b) is mandatory for motion to set aside dismissal against defendant?

Plaintiff entered dismissal by mistake.

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A: SEE JAMES ARRASMITH'S ANALYSIS BELOW. IT APPEARS TO BE THOROUGH, WHETHER IT IS BECAUSE HE WROTE IT OR USED AI.........WHO CARES IF HE GETS YOU THE INFO.

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Answered

A: Under California Code of Civil Procedure (CCP) §473(b), if a dismissal has been entered due to a party's mistake, inadvertence, surprise, or neglect, the court has the discretion to relieve that party from the dismissal. This provision is often invoked when a plaintiff seeks to set aside a dismissal that was entered mistakenly. For a motion to set aside a dismissal under CCP §473(b), it is not mandatory to file an amended complaint alongside the motion. The primary focus of the motion is to demonstrate the mistake and ask the court to vacate the dismissal.

However, CCP §473(a)(1) provides that the court may, in its discretion and upon any terms as may be just, allow a party to amend any pleading. This means that if, after having the dismissal set aside, the plaintiff believes that an amended complaint is necessary to properly present the case or correct issues in the original complaint, they may request leave to amend. The decision to file an amended complaint would depend on the specifics of the case and whether the initial pleading fully and accurately represents the plaintiff's claims after reinstating the case.

Therefore, while the filing of an amended complaint is not a prerequisite for a motion to set aside a dismissal under §473(b), the plaintiff may consider amending the complaint as part of restructuring their case once the dismissal is vacated. It would be prudent to evaluate the needs of the case and possibly seek permission to amend, to ensure that all claims and issues are accurately presented before the court as the proceedings continue.

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