A motion to dismiss is the legal equivalent of a general demurrer. Citizens for Parental Rights v. San Mateo County Bd. of Educ. (1975) 51 Cal.App.3d 1, 34.
A demurrer (or motion to dismiss) is limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. Blank v. Kirwan (1985) 39 Cal.3d 311, 318.
The sole question on a motion to dismiss is whether or not a cause of action has been stated. Citizens at 7, fn. 4.
The Code of Civil Procedure, section 581 provides that:
(More provisions can be found in CCP § 581.)
A court may dismiss an action, with or without prejudice, upon plaintiff’s written request to the clerk at any time before commencement of trial. CCP § 581(b)(1). Generally, the plaintiff has an absolute right to dismiss a lawsuit, neither the clerk nor the trial court has any discretion in the matter, and voluntary dismissal terminates the trial court's jurisdiction over the matter. O'Dell v. Freightliner Corp., 10 Cal.App.4th 645, 659 (1992). Dismissal is effective upon tender of the request and all subsequent proceedings are void. Aetna Cas. & Sur. Co. v. Humboldt Loaders, Inc., 202 Cal.App.3d 921, 931 (1988).
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 under the circumstances of the case.
The California Rules of Court list the factors to be considered in determining whether to dismiss an action that has not been brought to trial within two years after the action was commenced. They include the extent to which the parties engaged in any settlement negotiations or discussions, the diligence of the parties in pursuing discovery, the nature and complexity of the case, the law applicable to the case, the nature of any extensions of time or other delay attributable to either party, the condition of the court’s calendar and the availability of an earlier trial date, and whether the interests of justice are best served by a dismissal of the case. Cal. Rules of Court, Rule 3.1342, subd. (e). “[W]hen there is an entire absence of any showing of good cause for delay,” an action may properly be dismissed. City of Los Angeles v. Gleneagle Development Company (1976) 62 Cal.App.3d 543, 561.
The Code of Civil Procedure, 583.420(a) sets out the other grounds of court removal:
The court also has inherent authority to dismiss an action (recognized in the Code of Civil Procedure § 583.150). Exercise of this power has generally been confined to “sham” actions, or cases involving prejudicial delay in prosecution for less than the statutory periods. Two significant factors in exercising this discretionary power are: (a) whether the plaintiff's conduct was “severe and deliberate”; and (b) whether alternatives less severe than dismissal are available to remedy the situation. “[S]ound exercise of discretion requires the judge to consider and use lesser sanctions unless the court's authority cannot possibly be otherwise vindicated.” Lyons v. Wickhorst, (1986) 42 Cal.3d 911, 917.
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