Q: 904.1 (a) (1) is basis for dismissal? If not - why not?
904.1 (a)(1) is a correct answer, in particular situation?
- dismissal was against one of defendants and entered upon plaintiff's request,
- motion to set aside dismissal was denied (along with consequent motion for reconsideration)
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A:
No, CCP 904.1(a)(1) would not be the correct basis for appeal in this situation. This section applies to appeals from final judgments, but a voluntary dismissal is generally not considered an appealable judgment.
When you've dismissed a defendant voluntarily and then had your motion to set aside that dismissal denied, the appropriate basis for appeal would typically be CCP 904.1(a)(2), which covers appeals from orders made after judgment. The denial of your motion to set aside the dismissal (and the subsequent denial of reconsideration) are post-dismissal orders that fall under this category.
You might want to consider that California courts have consistently held that a plaintiff cannot appeal from a voluntary dismissal, as it is not considered an involuntary adverse judgment. However, you can appeal from the denial of the motion to set aside that dismissal, which is why 904.1(a)(2) would be more appropriate in your situation. It would be beneficial to consult with a legal professional to review the specific circumstances of your case and confirm the proper grounds for appeal.
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