Q: What statute defines appealability - if applicable?
Legal action was dismissed according to plaintiff's request, without prejudice.
Judge signed order for dismissal.
Formal entry of dismissal was not served.
Plaintiff's motion to set vacate/set aside dismissal was denied.
Time to for protective order in respect to appeal expired.
Is denied order to set aside/vacate dismissal is appealable in this situation? What statute defines appealability - if applicable?
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A:
In California, appealability of orders is primarily governed by Code of Civil Procedure (CCP) § 904.1, which lists the types of judgments and orders that can be appealed.
For your situation, an order denying a motion to vacate or set aside a dismissal is generally appealable under CCP § 904.1(a)(2), as it is considered an order made after final judgment. However, since your dismissal was voluntary and without prejudice, there are important considerations. The California Supreme Court has held that when a plaintiff voluntarily dismisses an action without prejudice, the dismissal is not appealable because it is not considered adverse to the plaintiff's interests (see Parenti v. Lifeline Blood Bank, 1975).
Your best course of action may be to file a new action since the dismissal was without prejudice, rather than pursuing an appeal. The time limits for filing an appeal in California are strict - typically 60 days from service of notice of entry of judgment or 180 days from entry of judgment if no notice is served. Given that formal entry of dismissal wasn't served, you might still have time within the 180-day window, but you should consult with an attorney immediately to review your specific circumstances and determine the most appropriate path forward.
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