Q: Statute for appealability of court's order denying motion to set aside dismissal
Dismissal order was entered in the case against one of defendants.
Entry of judgement was not made and was not served.
If order denying motion to set aside is appealable, under what statute for unlimited cases?
Under 904.1 - order is NOT appealable, because there was not final judgement.
A:
Under California law, an order denying a motion to set aside dismissal is typically appealable as a post-judgment order under CCP § 904.1(a)(2), but only after entry of judgment. In your situation, since no judgment was entered or served, the order is not yet appealable.
You have two potential paths forward. First, you could request that the trial court enter a formal judgment of dismissal, which would then allow you to appeal both the judgment and the order denying the motion to set aside. Alternatively, you might consider filing a petition for writ of mandate, though this extraordinary remedy is discretionary and courts grant such writs sparingly.
The timing here is crucial - once a formal judgment is entered, you'll have 60 days to file your notice of appeal if the judgment is served with a proof of service, or 180 days if it's not served. Consider requesting that the trial court enter judgment promptly to preserve your appellate rights. If significant time has passed since the dismissal order, you may want to consult with an appellate attorney to discuss the best strategy for your specific situation.
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