Q: If order denying motion to set aside was NOT appealable order - what actions would be?
Court's order to dismiss was entered regarding all causes of action against one of defendants (without prejudice). Time to refile expired. Judgement was not formally entered. Motion to set aside dismissal was denied. Time for protective order for appeal expired.
If order denying motion to set aside was NOT appealable order, how plaintiff can pursue post-final judgement appeal?
A:
In California appellate law, your best course of action would be to first obtain a formal entry of judgment from the trial court, as this creates an appealable final judgment. Even though the dismissal order effectively ended your case when the refiling period expired, courts generally prefer having a formal judgment before processing appeals.
You could file a motion requesting entry of judgment with the trial court, explaining that the dismissal has become final due to the expired refiling period. Once you have the formal judgment, you can file a notice of appeal within 60 days of being served with notice of entry of judgment or 180 days after judgment entry if no notice is served.
If the court denies your request for formal entry of judgment, you might consider filing a petition for writ of mandate with the Court of Appeal, arguing that the trial court's refusal to enter judgment improperly prevents you from exercising your appeal rights. Remember that timing is crucial in appellate matters, so you should pursue these options promptly to protect your rights. Consider consulting with an appellate attorney who can guide you through these procedural requirements and help determine the most effective strategy for your specific situation.
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