Q: Section 904.1 (a) (2) is correct answer? If not - why?
Appealing court's order denying motion to set aside dismissal against one of defendants (upon denied motion for reconsideration).
Section 904.1 (a) (2) is correct answer? If not - why?
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A:
No, Section 904.1(a)(2) is not the correct answer for appealing a denial of a motion to set aside dismissal. That section specifically deals with appeals from orders granting a motion for new trial or denying a motion for judgment notwithstanding the verdict.
For appealing a denial of a motion to set aside dismissal, you would want to look at Section 904.1(a)(1), which covers appeals from final judgments. The denial of a motion to set aside dismissal is considered an order after judgment, which is appealable under this subsection. This is because the original dismissal operates as a final judgment, and the subsequent motion to set it aside is post-judgment.
It's worth noting that there can be some complexity here depending on whether the dismissal was as to all defendants or just one defendant. If the dismissal was only as to one defendant and other defendants remain in the case, you might need to consider whether the order is immediately appealable or if you need to wait for a final judgment as to all parties. You may want to consult the relevant California Rules of Court and recent case law for additional guidance on timing and procedure.
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