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Discretionary dismissal for delay in prosecution in California

A motion for discretionary dismissal for delay in prosecution is the topic of this blog post.  The statutes in California governing discretionary dismissal for delay in prosecution are found in Code of Civil Procedure sections 583.410 through 583.430.

Said statutes state that a court may, in the exercise of its discretion, dismiss on any of the following grounds:

Failure to serve the summons and complaint within 2 years after the action is commenced against the defendant.  Code of Civil Procedure section 583.410(a)(1);

Failure to bring to trial within 3 years.  Code of Civil Procedure § 583.420(a)(2);

Failure to bring to retrial within 2 years after a mistrial, order granting retrial or reversal on appeal. Code of Civil Procedure § 583.420(a)(3).

A California Court of Appeal has ruled that if plaintiff cannot provide a reasonable explanation for the failure to serve the summons and complaint within 2 years that is a sufficient ground for dismissal and defendant is not required to show prejudice.

In another case a California Court of Appeal ruled that plaintiff has the burden of showing a credible excuse for the delay. If they fail to do so the court will not consider other factors such as prejudice to the defendant.

Even showing diligence after the 2–year period is not enough. Plaintiff must explain why service was not made throughout the 2 years in question.

A “rational relationship” must be shown between the asserted reason for delay and the fact of delay of service of summons … not some generalized delay in the action as a whole such as lack of finances to proceed.

Note that filing a motion for discretionary dismissal has its risks as it may “wake up” plaintiff and convince them to prosecute the case more diligently.  However if the plaintiff has delayed prosecuting the case and then begins taking steps to bring the action to trial filing a motion for discretionary dismissal is a prudent move.

There are other various statutory grounds for involuntary dismissal other than delay in prosecution which will be discussed in a later blog post.

Attorneys or parties in California who would like to view a portion of a sample motion for discretionary dismissal for delay in prosecution 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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