“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.”
Elements of a Motion To Dismiss for Delay in Prosecution (Code of Civil Procedure §583.310 and §583.360):
An action shall be dismissed by the court… on motion of the defendant if:
Such dismissal is mandatory, unless the plaintiff demonstrates:
If a new trial is granted, the action must be brought to trial within three years after:
The parties may also extend the time within which an action must be brought to trial:
Defendant City of Imperial Beach's unopposed motion to dismiss for failure to bring to trial is granted. CCP § 583.310, 583.360. Court records show that this matter was remanded back to this court on July 21, 2011 [ROA 35], and that trial did not commence within 5 years. The last action taken by Plaintiff was on April 1, 2011, when Plaintiff filed an amendment to the complaint [ROA 34]. In such circumstances, dismissal is mandatory. Fannin Corp. v. Superior Court (1974) 36 Cal.App.3d 745, 749. The court dismisses this matter, in its entirety, with prejudice. Marco Martinez Vs. City Of San Diego, 37-2010-00076963-Cu-Po-Sc (11/21/2017) (https://trellis.law/ruling/37-2010-00076963-CU-PO-SC/marco-martinez-vs-city-of-san-diego/20171121242490).
“The cases to the contrary that defendants cite are unpersuasive. City of Pasadena v. Superior Court of Los Angeles County (1931) 212 Cal. 309, 313-314 was overruled by Carney. Fannin Corp. v. Superior Court of Santa Clara County (1974) 36 Cal.App.3d 745, 754 defines ‘trial’ for purposes of a different statute, the statute extending the five-year period to bring a case to trial (currently found in CCP § 583.310) by two years in the event of an appeal resulting in the award of a new trial. (See current CCP § 583.320 (a)(3).) Fannin expressly acknowledges that Carney supplies the definition of what constitutes a trial for purposes of motion for new trial under CCP § 657. (Fannin, supra, 36 Cal.App.3d at 754 (‘[Carney] deals with the type of judgments to which a motion for new trial may be directed under the statutes applying to motions for new trial. (§ 655 et seq.) Carney does not hold that where a judgment of dismissal is entered in any case for any reason [i.e., under a different statute, section 583], it will support new trial proceedings.’)” Aguilera Vs. Farley, Msc14-02334 (11/29/2018) (https://trellis.law/ruling/MSC14-02334/aguilera-vs-farley/2018112951a2ba).
“The 5-year statute is tolled where…a case is submitted to judicial arbitration during the last 6 months of the 5-year period, or was submitted to arbitration earlier and remains in arbitration during any part of that last six months (CCP §1141.17(b)); or [a] case is ordered to mediation (CCP §1775) during the last 6 months of the 5-year period, or was ordered to mediation earlier and remains in mediation during any part of that last 6 months (CCP §1775.7(b)), or a case remains in mediation during any part of that last 6 months that was submitted to mediation by stipulation of the parties filed not later than 90 days before trial…This is the exclusive means of tolling the 5-year statute for actions submitted to judicial arbitration or court-ordered mediation. I.e., there is no additional 6-month extension pursuant to CCP §583.350.” Victor Ulloa Et Al Vs Norm's Restaurants, Bc499965 (8/16/2018) (https://trellis.law/ruling/BC499965/victor-ulloa-et-al-vs-norms-restaurants/2018081673792e).
”On February 27, 2012, Meleros filed a notice of intention to move for a new trial pursuant to CCP § 657. (A plaintiff is “allowed to make a motion for a ‘new trial’ after a judgment entered on an order sustaining a demurrer without leave to amend.” McDonough Power Equipment Co. v. Superior Court, 8 Cal.3d 527, 538 (1972).) They also filed a notice of intention to move to vacate the judgment and enter a new judgment under CCP § 663. Although these pleadings were timely filed, it does not appear that Meleros served these pleadings on bank defendants within 15 days of mailing notice of entry of judgment and, therefore, they are not timely.” Adrian Melero V. Bank Of America, Et. Al., 1381961 (5/3/2012)(https://trellis.law/ruling/1381961/adrian-melero-v-bank-of-america-et-al/20120503650751)
“Sections 583.310 and 583.360 subserve the purpose of encourag[ing] the expeditious disposition of litigation…The aim of the statutes is not to have trials, but to bring cases to a conclusion, to secure for plaintiffs the relief, and to defendants, the repose, to which the law entitles them, and to free the court's resources for the efficient adjudication of other claims…The burden to prove an exception to the five-year period for bringing a matter to trial rests on the plaintiff…There is no exception for proposed class action cases…In addition, absent an order staying a case, an appeal of an order disqualifying counsel does not toll the five-year period…The appeal of an order disqualifying counsel automatically stays enforcement of the order, but the automatic stay does not extend to all trial court proceedings. Counsel can nonetheless continue on the case at the trial court while the appeal is pending, new counsel can be associated, the parties can stipulate to a complete stay of the proceedings, or one party can move to stay the proceedings…The delays argued by plaintiffs have not been shown to be to circumstances outside of plaintiffs’ control, as required…[n]or have plaintiffs set forth any exception to the five-year statute or any scenario under which the five-year statute has not run. As a result, the motion to dismiss pursuant to Code of Civil Procedure section 583.310 is granted. “ Nevarez V. Foster Farms, Llc, 13Cecg02624 (1/13/2020) (https://trellis.law/ruling/13CECG02624/nevarez-v-foster-farms-llc/2020011386b9e5).
”Plaintiff argues that several events made it impossible, impracticable or futile to bring the case to trial as such events made the case not at issue, to wit, 102 days (8/19/16 – 11/29/16) while the Chase cross-complaint was pending, 80 days (12/13/16 – 3/3/17) while Chase's motion for leave to file a first amended answer was pending and 182 days (4/28/17 – 10/27/17) while the Court continued trial to hear Chase's 3/3/17 motion to file first amended answer…The pending Chase indemnity cross-complaint versus Spa Haven did not have any effect on Plaintiff's ability to bring the case to trial. Trial was vacated and new dates set due to the consolidation and later, based on the parties' stipulations. Likewise, Chase's pending motion for leave to file a first amended answer to add a Witt v. Jackson offset did not prevent Plaintiff from seeking an earlier trial date. The minor ten-day delay between a CCP § 170.6 challenge and case reassignment is not a factor…The original trial date was vacated due to the consolidation and a new date was set at the 6/24/16 CMC. The Court was prepared to try both cases on 4/28/17, however, the parties stipulated to continue trial for six months to 10/27/17 and then another seven and one half months to June 2018 due to new counsel substituting in for Plaintiff. See 1/23/17 minutes and 8/16/17 stipulated order. On 5/17/18, the parties stipulated to vacate the trial date with the understanding that they would meet and confer on new dates once all discovery and matters were concluded.” Illinois Midwest Insurance Agency Vs. Chase, 37-2014-00036134-Cu-Po-Nc (1/9/2020) (https://trellis.law/ruling/37-2014-00036134-CU-PO-NC/illinois-midwest-insurance-agency-vs-chase/20200109d1b315).
CAROL BENNETT, 1460 O’BRIEN DRIVE ASSOCIATES, AIR PARTNERS-AUSTIN, LP AND BAY AT-AUSTIN, INC.’S motion for order for dismissal for failure to prosecuteTENTATIVE RULING:The Motion of Defendants Carol Bennett, 1460 O’Brien Drive Associates, AIS Partners-Austin LP and Bay At-Austin, Inc., for Dismissal for Failure to Prosecute, is DENIED.In ruling on this motion, the court has discretion in whether t...
..lear that Plaintiffs diligently prosecuted this action until Defendant Katherine Robertson’s (“Robertson”) bankruptcy filing. Then, it appears no action took place for about one year from July 2016 (when Robertson’s bankruptcy filing was dis...
Mar 07, 2018
San Mateo County, CA
Nature of Proceedings: Motoin: Dismiss for Delay in Prosecution BACKGROUND: This is a credit card collection action. Plaintiff Asset Acceptance, LLC filed its complaint on October 11, 2012, asserting common count causes of action against defendant Kenneth S. Young for open book account, account stated, and money had and received. Plaintiff alleges that defendant was issued a credit card by plai...
..ter. There is no filed opposition to the motion. ANALYSIS: The court has discretion to dismiss an action for failure to prosecute. Code of Civil Procedure Section 583.410, subdivision (a), provides: “The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate unde...
May 27, 2015
Santa Barbara County, CA
MOVING PARTY: Defendant, Ruben Muna, specially appearingRESPONDING PARTY: NoneThe Court considered the moving papers.BackgroundOn April 1, 2014, Plaintiff Joe Luis Aguilar Perez filed a complaint against defendant Ruben Muna for motor vehicle negligence based on an April 7, 2012 traffic collision. On July 8, 2016, the Court granted Defendant’s motion to quash service of summons. On June 15, 2017,...
..ant motion to dismiss Plaintiff’s complaint for failure to prosecute. No opposition was filed. On August 20, 2018, Defendant filed a notice of non-oppositionLEGAL STANDARDPursuant to CCP section 583.420, t...
Aug 27, 2018
Personal Injury/ Tort
Los Angeles County, CA
[TENTATIVE] ORDER RE: DEMURRER I. INTRODUCTION On May 8, 2017, plaintiff Brenda Sanchez filed this action against Jose Napoleon Garcia (“Garcia”) and Doe Defendants 1-50 for injuries arising from an October 28, 2016 car accident on the 210 freeway east of Citrus Avenue. On May 3, 2018, Plaintiff amended the complaint to name Krystina Janelle Mellard (“Defendant”) as Doe 1. On May 17, 2018, plain...
..o the FAC on the grounds that the action is barred by the statute of limitations. II. DISCUSSION Defendant argues that Plaintiff’s FAC is untimely because Plaintiff alleges the accident occurred on October 28, 2015 but filed the FAC more than two years later on May 17, 2018. Plaintiff argues the FAC is “an entirely new case” that does not relate back to the allegations of the original complaint....
Feb 07, 2020
Los Angeles County, CA
Defendants DCH Torrance Imports, Inc., Lithia Motors Support Services, Inc., and DCH Auto Group’s Motion to Dismiss the Action for Unjustified Failure to Prosecute is GRANTED. The action is dismissed without prejudice. Defendants move the court to dismiss the action pursuant to CCP §§ 583.410 and 583.420(a)(2) as well as CRC 3.1340. The instant action was filed on April 29, 2016. The court ordere...
..prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.” (CRC 3.1340(a); D'hondt v. Regents of University of California (1984) 153 Cal.App.3d 723, 731 (“plaintiff made absolutely no showing of excuse for the delay of two years and eight months while the matter was submitted to arbitration.”).) Defen...
May 17, 2018
Los Angeles County, CA
Nature of Proceedings: Motion: Dismiss for Lack of ProsecutionBackground: Gary Beneduci was arrested for DUI on June 10, 2010, at which time he was served with a Notice of Suspension/Revocation pursuant to Vehicle Code section 13382(b). After an administrative hearing held on August 17, 2010, the DMV on September 20, 2010 issued its Notice of Findings and Decision suspending Beneduci�s driver�s li...
..iver�s license suspension had been dissolved, and his suspension would be re-imposed to run from April 16, 2011 to August 2, 2011. Petitioner made no further efforts to bring this matter to hearing after obtaining the initial stay, and the proceeding has remained dormant since that time. DMV sent letters to peti...
May 09, 2014
Santa Barbara County, CA
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Yolo County, CA
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Fresno County, CA
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Fresno County, CA
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