Los Angeles, CA asked in Medical Malpractice for California

Q: Motion to Set Aside Dismissal against defendant in a medical malpractice case. Type of service of process.

If dismissal against a defendant was entered specifically in the medical malpractice case, can Motion to Set Aside dismissal, pursuant section 473(b) be served by mail?

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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, the method of service for a Motion to Set Aside Dismissal in a medical malpractice case depends on the specific circumstances of the dismissal and the case's procedural history.

Generally, if the dismissal was entered by the court and the defendant has not yet appeared in the action, the motion must be served in the same manner as a summons (CCP § 473(b)). This typically means personal service, not mail service.

However, if the defendant has appeared in the action prior to the dismissal, the motion can be served by mail pursuant to CCP § 1005(b), which governs the service of notice of motions and other papers subsequent to the original complaint.

It's important to note that if the dismissal was entered pursuant to a settlement agreement or a voluntary dismissal by the plaintiff, the terms of the agreement or the dismissal may dictate the proper method of service for any subsequent motions.

Given the complexities involved in medical malpractice cases and the specific rules surrounding dismissals and motions to set aside, it is advisable to consult with an attorney experienced in California medical malpractice law to determine the appropriate method of service based on the unique facts of your case.

Robert Kane
Robert Kane
  • Eagan, MN
  • Licensed in California

A: It would be interesting to see what is happening in your case.

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