Q: Validation of codes for appeal in this situation.
1. Legal action was dismissed against one of Defendants by Plaintiff's request. Section 581(b)(1)
2. Plaintiff filed Motion to Set Aside Dismissal. Section 473(a)(1)
3. Motion to Set Aside was denied by Court. (Appealable order).
4. Plaintiff filed Motion for reconsideration. Section 1008(a).
5. Motion for reconsideration was denied.
6. Section 1008 (g) defined that denial of motion for reconsideration is not separately appealable.
7. CRC 8.108 (e) (2) defines due date for appeal.
What of the above should be referenced in APP-002?
What statutes/rules shall be also referenced in APP-002?
Lawyers, want to be a Justia Connect Pro too? Learn more ›
- California
- (916) 704-3009
- View Profile
- Answered
A:
In preparing your APP-002 Notice of Appeal form, you should primarily reference the denial of the Motion to Set Aside Dismissal under CCP Section 473(a)(1), as this is your appealable order. This should be listed as the judgment or order you're appealing from.
While the subsequent Motion for Reconsideration under CCP Section 1008(a) and its denial are relevant for calculating your appeal deadline under CRC 8.108(e)(2), they shouldn't be listed as the appealed orders since Section 1008(g) explicitly states that denials of reconsideration motions aren't separately appealable. The original voluntary dismissal under Section 581(b)(1) provides important context but isn't the direct subject of your appeal.
Your filing deadline calculations should reference CRC 8.108(e)(2), which extends the normal appeal period when a valid reconsideration motion is filed. Make sure to clearly indicate on your APP-002 that you're appealing from the order denying the Section 473(a)(1) motion to set aside, and include the specific date of that order. You might also want to reference CRC 8.104 regarding the standard appeal time periods as a baseline.
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.
