Q: Due date. Appeal vs writ
Is order on Motion to set aside dismissal of case against defendant is appealable? If consequent motion for reconsideration was filed, how due date to appeal is calculated?
Appeal or writ of mandate is appropriate in such situation?
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A:
In California, an order denying a motion to set aside dismissal is appealable as it's considered a final judgment under Code of Civil Procedure section 904.1.
When you file a motion for reconsideration, the deadline to appeal becomes more complex. The time to file your appeal starts running from either the date the court rules on your reconsideration motion or the date the motion is denied by operation of law (60 days from filing), whichever comes first. You typically have 60 days from this date to file your notice of appeal.
While both an appeal and a writ of mandate are possible options, an appeal is generally the more appropriate path in this situation. Writs are extraordinary remedies and courts prefer appeals for reviewing dismissal orders. However, if you need immediate relief and can't wait for the appeal process, you might consider filing both - though be aware that courts rarely grant writ petitions when an adequate remedy exists through appeal. Make sure to carefully review California Rules of Court, rules 8.104 and 8.108, which govern these timing requirements.
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