Q: Should proposed order to file amended complaint, be added to proposed order to set aside dismissal against defendant?
Should proposed order to file amended complaint, be added to proposed order to set aside dismissal against defendant?
Pursuant 473(b)
A:
Under California law, when seeking to set aside a dismissal against a defendant pursuant to Code of Civil Procedure section 473(b), it is generally recommended to separately file a proposed order to set aside the dismissal and a proposed order granting leave to file an amended complaint. While these two requests are often related, they are distinct procedural steps and should be addressed in separate proposed orders.
Here's why:
1. Setting aside the dismissal: The first step is to request the court to set aside the dismissal against the defendant. This is typically done by filing a motion under CCP 473(b), which allows the court to relieve a party from a dismissal entered due to mistake, inadvertence, surprise, or excusable neglect. The proposed order accompanying this motion should focus solely on setting aside the dismissal.
2. Leave to file an amended complaint: Once the dismissal is set aside, the plaintiff may seek leave of court to file an amended complaint. This is a separate request that should be made through a noticed motion or an ex parte application, depending on the circumstances. The proposed order for this request should specifically address the court granting leave to file an amended complaint.
By separating these two requests into distinct proposed orders, you provide clarity to the court regarding the specific relief sought at each stage of the process. This approach also allows the court to address each request independently, as setting aside the dismissal does not automatically grant leave to file an amended complaint.
However, it is essential to consult with local court rules and practices, as some courts may have specific requirements or preferences for handling these types of requests.
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