“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.”

How to Structure the Motion

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:

1. The action is not brought to trial:
• Including a “partial trial”, which commences:
• In a jury trial, when the jury was impanelled and sworn, even if it is subsequently discharged; or
• In a case is tried to the court, when one witness is sworn.
• See, Fannin Corp., supra (“The effect of the written order of dismissal was that of a final judgment as a result of which petitioners were no longer parties to the action…Accordingly, a trial held without petitioners as parties could in no way affect their rights.”)
2. Within five years after the action is commenced against the defendant.
• The five year statutory period begins on the date the original complaint was filed against the defendant.
• The period is not extended by the filing of an amended complaint, even in response to a demurrer:
• Stating the same cause of action;
• Against the same defendant. See, Fannin Corp., supra (“the time consumed in disposing of the demurrer and the making of the amendments to the pleadings is not excluded.”); see also, Davalos v. County of Los Angeles (1983) 142 Cal. App. 3d 57, 63, 190 Cal. Rptr. 711.
• The period ends when the action is brought to trial or a new trial is ordered only if:
• a jury is impaneled;
• a witness is called who testifies; or
• there has otherwise been a determination of law or fact that brings the action to the stage of final disposition.

Such dismissal is mandatory, unless the plaintiff demonstrates:

1. The jurisdiction of the court to try the action was suspended;
2. Prosecution or trial of the action was stayed or enjoined; or
3. Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.
• The court determines whether bringing the action to trial was impossible, impracticable or futile “in the light of the circumstances in each case.” Fannin Corp. v. Superior Court (1974) 36 Cal. App. 3d 745, 749, 111 Cal. Rptr. 920

If a new trial is granted, the action must be brought to trial within three years after:

1. The court enters an order declaring a mistrial; or
2. The jury enters its inability to reach a decision (California Code of Civil Procedure §583.320(1)); or
3. An order granting a new trial is entered if:
• After judgment a new trial is granted; and
• No appeal is taken (California Code of Civil Procedure §583.320(2)); or
4. The clerk of the trial court files a remittitur if on appeal:
• An order granting a new trial is affirmed; or
• A judgment is reversed and the action remanded for a new trial. (California Code of Civil Procedure §583.320(3))

The parties may also extend the time within which an action must be brought to trial:

• By written stipulation (brought to the attention of the court); or
• By oral agreement made in open court, if entered in the court minutes or transcript. California Code of Civil Procedure §583.330

Trellis Cases

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).