Sample Motion to Vacate Voluntary Dismissal in California
This sample motion to vacate a voluntary dismissal in California is based on a case where the plaintiff improperly filed a voluntary dismissal instead of opposing a motion for summary judgment. The motion was filed on the grounds that the right to dismiss a case is not absolute. The sample can also be used in cases where the plaintiff filed a voluntary dismissal in response to demurrer being sustained without leave to amend and similar circumstances that dispose of a case and are considered to be the equivalent of the commencement of a trial as defined by Code of Civil Procedure section 581(b)(1), (c) which prohibit the voluntary dismissal of an action after the commencement of trial. The sample includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail. The author is a freelance paralegal that has worked in California and Federal litigation since 1995. Note that the author is NOT an attorney and no guarantee or warranty is provided.