Q: In this scenario, can motion to set aside dismissal of case be served by mail?
Dismissal was entered voluntarily by plaintiff. Defendant appeared at legal action prior to dismissal.
When plaintiff files motion to set aside dismissal against defendant: can it be served by mail?
A:
In California, the method of service for a motion to set aside a voluntary dismissal depends on whether the defendant has appeared in the action prior to the dismissal.
If the defendant has appeared in the action before the voluntary dismissal, then service of the motion to set aside the dismissal can be made by mail. According to California Code of Civil Procedure (CCP) Section 1005(b), if a party has appeared in the action, service may be made by mail to the address most recently provided on any document filed in the action or proceeding.
However, if the defendant has not appeared in the action prior to the voluntary dismissal, personal service of the motion to set aside the dismissal is required, as stated in CCP Section 1005(b).
In the given scenario, since the defendant appeared in the legal action prior to the dismissal, the plaintiff can serve the motion to set aside the dismissal by mail to the defendant's most recently provided address.
It's important to note that the motion to set aside a voluntary dismissal must be filed in a timely manner and with proper grounds, such as mistake, inadvertence, surprise, or excusable neglect, as outlined in CCP Section 473(b).
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.
