Sample California motion to vacate order of dismissal

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This sample motion to vacate order of dismissal in California is made under Code of Civil Procedure section 473 on the grounds that the order of dismissal was taken against the moving party through their mistake and inadvertence. The sample on which this preview is based is 13 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declarations and a proof of service by mail.

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Sample California motion to vacate order of dismissal

  1. 1. 1 2 3 4 Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF _______________ 10 11 12 13 14 15 16 17 18 SAMPLE PLAINTIFF, ) ) Plaintiff, ) ) v. ) ) SAMPLE DEFENDANTS, ) ) Defendants. ) ) ) ) ____________________________________) CASE NO. NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATIONS OF ____________________; EXHIBITS DATE: TIME: DEPT: 19 20 21 22 23 To subscribe to my FREE California weekly legal newsletter visit http://www.legaldocspro.net/newsletter.htm and enter your name and e-mail address in the sign-up box. To view details of sample document 24 25 26 packages created and sold by LegalDocsPro visit this website: http://www.legaldocspro.com/downloads.aspx 27 28 Be sure to remove these notices before using this document. - 1 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL
  2. 2. TO ___________________________________ AND THEIR ATTORNEYS OF 1 1 2 RECORD: 3 PLEASE TAKE NOTICE THAT on _____________________, at ________, or as soon after 4 5 that as the matter can be heard, in Dept. _______of the above-entitled Court located at 6 ____________________________________________, plaintiff __________1will and hereby does 7 move this court for an order vacating the order of dismissal that was entered in this case on 8 ________, under the provisions of Code of Civil Procedure § 473 on the grounds of mistake and 9 10 11 12 inadvertance, in that the failure of counsel for plaintiff, _________, to make an appearance at the hearing was due to their having to attend a _________________________________in the _________ County Superior Court, ________________Courthouse, and their secretary had 1had 13 contacted ____________ on ____, to arrange for one of their attorneys to make a special appearance 14 and 1was under the impression that they would take care of the appearance. However when they 15 16 17 18 spoke with an employee there at ___.M. on _____________, they were told that they had not yet located an attorney to make the special appearance and that it was unlikely they would be able to do so. __________ then immediately called Dept. ____ before ____.M. and informed the Clerk that 19 _________ could not appear due to a conflict, and that they were unable to find another attorney to 20 make a special appearance. The Clerk informed _________that they would inform the Court of the 21 situation. However, on, _________the Court dismissed the case without prejudice for failure to 22 appear. 23 24 This motion is based on this notice of motion and motion, the attached memorandum of points 25 and authorities, the declarations of _________ and __________ and exhibits attached thereto, the 26 pleadings and papers on file herein, and upon such other matters as may be presented to the court at 27 the time of the hearing. 28 - 2 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL
  3. 3. 1 2 Dated________________ _______________________________________________ ANY ATTORNEY OR PARTY 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL
  4. 4. 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 4 5 6 STATEMENT OF FACTS 1Plaintiff filed suit against defendants on _______ alleging causes of action for _________ and ______________________. A default was entered against _________________ on __________. 7 An order to show cause re: dismissal was scheduled for ___________. Because no appearance was 8 made at the hearing on _____the Court ordered the case dismissed without prejudice. See the 9 10 11 12 Complaint of plaintiff and other documents filed with the court, and the court’s minute orders. Plaintiff contends that the failure to attend the hearing on ___________, was due to the fact that counsel for plaintiff had to attend a _________________________________in the _________ 13 County Superior Court, ________________Courthouse. See the declaration of _________________, 14 and exhibits attached thereto, attached hereto and incorporated herein by reference. 15 16 _________ the secretary for _______1had contacted ____________ on ____, to arrange for one of their attorneys to make a special appearance and 1was under the impression that they would 17 18 take care of the appearance. However when they spoke with an employee there at ___.M. on 19 _____________, they were told that they had not yet located an attorney to make the special 20 appearance and that it was unlikely they would be able to do so. 21 called Dept. ____ before ____.M. and informed the Clerk that _________ could not appear due to a 22 __________ then immediately conflict, and that they were unable to find another attorney to make a special appearance. The Clerk 23 24 informed _________that they would inform the Court of the situation. However, on, _________the 25 Court dismissed the case without prejudice for failure to appear. See the declaration of ___________ 26 and exhibits attached thereto, attached hereto and incorporated herein by reference. 27 28 - 4 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL
  5. 5. 1 II. 2 LEGAL ARGUMENT 3 4 5 6 A. THE COURT HAS THE POWER TO SET ASIDE THE ORDER OF DISMISSAL Code of Civil Procedure Section 473 states in pertinent part: 1“The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, 7 order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise 8 or excusable neglect.” 9 10 11 12 13 This court has the statutory authority to grant this motion and should do so as the law favors trial on the merits. Further this motion is timely made and has proper factual support. To view the sample document on which this preview is based visit: http://www.scribd.com/doc/186682712/Sample-Motion-to-Vacate- 14 15 Dismissal-in-California 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL
  6. 6. 1 II. 2 LEGAL ARGUMENT 3 4 5 6 A. THE COURT HAS THE POWER TO SET ASIDE THE ORDER OF DISMISSAL Code of Civil Procedure Section 473 states in pertinent part: 1“The Court may, upon any terms as may be just, relieve a party, or his or her legal representative from a judgment, dismissal, 7 order or other proceeding, taken against him or her through his or her mistake, inadvertance, surprise 8 or excusable neglect.” 9 10 11 12 13 This court has the statutory authority to grant this motion and should do so as the law favors trial on the merits. Further this motion is timely made and has proper factual support. To view the sample document on which this preview is based visit: http://www.scribd.com/doc/186682712/Sample-Motion-to-Vacate- 14 15 Dismissal-in-California 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 NOTICE OF MOTION AND MOTION TO VACATE ORDER OF DISMISSAL

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