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

Q: What is due date to serve motion to set aside on defendant- in this scenario.

Motion to Set Aside Dismissal against Defendant was filed with Court by Plaintiff 1.5 month before 6-month due date, required by CCP 473 (b).

Hearing on the motion is scheduled 4 months after due date to file motion to set aside.

With such sequence of events: what is due date to serve motion to set aside on defendant?

2 Lawyer Answers
James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Sacramento, CA
  • Licensed in California

A: Under California law, particularly in the context of CCP 473(b), the due date to serve a motion to set aside a dismissal on the defendant is governed by specific procedural requirements. Given that the motion to set aside the dismissal was filed by the plaintiff 1.5 months before the 6-month deadline required by CCP 473(b), this sets the initial timing context for service on the defendant.

The next critical piece of information is the scheduling of the hearing on the motion 4 months after the due date to file the motion to set aside. This indicates that the motion itself must be served on the defendant in a manner that allows the defendant sufficient time to prepare a response before the hearing. California law requires that the notice of motion be served at least 16 court days before the hearing if served within California. If the service is done by mail, the period is extended by 5 days if the place of address is within California.

In your scenario, the service of the motion to set aside on the defendant should therefore take place at least 21 days before the hearing if the defendant is in California and the service is done by mail, to account for the mailing time. This timeline ensures that the defendant has enough time to prepare and respond to the motion, adhering to the requirements of fairness and procedural justice that underpin California's legal system.

Pardeep Joshi
Pardeep Joshi
  • Licensed in California

A: Due date to serve motion to set aside on the defendant is as follows:

"CCP section 1005 (b) Unless otherwise ordered or specifically provided by law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing..."

Serve a copy of all the documents (all moving and supporting papers) you have filed with the court. If you serve it by mail the required period of at least 16 court days' notice before the hearing shall be increased by five calendar days if the place of mailing and the place of address are within the State of California, more if it is out of state, see CCP sec. 1005 (b).

Court days are the days that the court is open, it does not include weekends and court holidays.

Although CCP section 473(b) provides a six month maximum period within which a motion to set a side must be brought, it also prescribes the motion be made within a "reasonable time", "in no case exceeding six months". Given the delay in your case, if you have not provided a satisfactory explanation for the delay in your supporting declaration(s), including attached exhibits (if any) the court may deny relief.

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.