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Mandatory dismissal for delay in prosecution in California

Mandatory dismissal for delay in prosecution in California is the topic of this blog post.  This blog post will discuss the mandatory grounds for dismissal.  The discretionary grounds will be discussed in a later blog post.

The statutes authorizing involuntary dismissal in California are found in Code of Civil Procedure sections 583.110 through 583.430, these code sections apply to all civil actions in the State of California.

And courts may also apply these statutes in special proceedings such as eminent domain, or administrative mandamus proceedings unless doing so would be inconsistent with the character of such proceedings or statutes governing those proceedings. See Code of Civil Procedure § 583.120(b); see also Binyon v. State of Calif. (1993) 17 CA4th 952, 955; Oskooi v. Fountain Valley Regional Hosp. & Med. Ctr. (1996) 42 CA4th 233, 238-section 583.120 applies to all special proceedings unless doing so would permit rather than prevent delay.

However, dismissal for delay in prosecution may not be granted in marriage dissolution or legal separation proceedings while a support order is outstanding, or where a separate trial on the issue of marital status is pending pursuant to Code of Civil Procedure § 583.161.

The grounds for involuntary dismissal for delay in prosecution can be either mandatory or discretionary.  This blog post will discuss the mandatory grounds which apply in the absence of a specific exception. The mandatory grounds are:

Failure to serve defendant within 3 years or return proof of service within 60 days after the 3–year period. Code of Civil Procedure § 583.210;

Failure to bring to trial within 5 years.  Code of Civil Procedure § 583.310; and

Failure to bring to retrial within 3 years after a mistrial, order granting new trial or reversal on appeal. Code of Civil Procedure § 583.320.

The usual minimum 16 Court days notice with additional time for service by mail is required.  However, any motions served as a defendant’s initial pleading must designate a hearing date within 30 days after service of the motion pursuant to Code of Civil Procedure section 418.10(b).

Code of Civil Procedure § 583.250(a)(2) states in pertinent part that,  where a summons and complaint are not served within the 3–year period, or returned with proof of service within 60 days thereafter, “the action shall be dismissed … ”  Note that the action is dismissed only as to late-served defendants. If there are other defendants who were timely served, the action continues against them. And the dismissal is without prejudice Code of Civil Procedure § 581(h).  But the statute of limitations may bar any new action.

And the court’s discretion is limited as 3–year period for service is “not subject to extension, excuse or exception except as expressly provided by statute.”  Code of Civil Procedure § 583.250(b).

Once the statutory periods have expired, the burden is on plaintiff to show some excuse for the delay in service such as estoppel, waiver, tolling, “impossible, impracticable or futile,” etc.

Attorneys or parties in California who would like to view a portion of a sample motion for dismissal under the mandatory provisions sold by the author can see below.

The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.

Follow the author on Twitter at: https://twitter.com/LegalDocsPro

To view over 300 sample legal documents for sale by the author of this blog post visit the following link: http://www.scribd.com/LegalDocsPro

*Do you want to use this article on your website, blog or e-zine? You can, as long as you include this blurb with it: “Stan Burman is the author of over 300 sample legal documents for California and Federal litigation and is the author of a free weekly legal newsletter. You can receive 10 free gifts just for subscribing.  Just visit http://freeweeklylegalnewsletter.gr8.com/  for more information.

You can view sample legal document packages for sale by going to http://www.legaldocspro.com/downloads.aspx

DISCLAIMER:

Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.

The materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.

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