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

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?

1 Lawyer Answer
James L. Arrasmith
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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).

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