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.

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. 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. 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. 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. 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. 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