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Opposing mandatory dismissal for delay in prosecution in California

Opposing mandatory dismissal for delay in prosecution in California is the topic of this blog post. Any party served with a motion for mandatory dismissal for delay in prosecution needs to make sure that their opposition is served and filed no later than nine (9) court days before the hearing and served by personal delivery or overnight mail pursuant to Code of Civil Procedure section 1005.

If you were served with a motion for mandatory dismissal for delay in prosecution in California the first thing you need to do is carefully review the motion and supporting documents to determine what grounds for opposition exist as there are numerous grounds for opposing a motion for mandatory dismissal.

A California Court of Appeal ruled in a published case that the public policy in California favors trial on the merits over dismissal for delay in prosecution. If good cause for the delay is shown the motion for mandatory dismissal should be denied.

The California Supreme Court and California Courts of Appeal have ruled in published cases that numerous circumstances can extend the period including:

Where a complaint is amended to allege a new cause of action on different operative facts.

If the last day for service of summons and complaint ends on a Saturday, Sunday or holiday, the time for service is extended to the next court day.

Other grounds for opposing the motion for mandatory dismissal include:

The defendant is estopped from seeking dismissal whenever it has, by words or conduct caused the plaintiff to be lulled into a false sense of security such as seeking an extension of time to answer.

Where the neglect of the counsel for plaintiff is so extreme and inexcusable that it constitutes positive misconduct.

California law specifies that the 5–year period in which an action must be brought to trial is tolled (extended) by any period of time during which:

The court’s jurisdiction to try the action was suspended, see Code of Civil Procedure § 583.340;

Prosecution of the action was stayed or enjoined including judicial arbitration during the last 6 months of the 5–year period, see Code of Civil Procedure § 583.340(b), or

Bringing the action to trial, for any other reason, was impossible, impracticable or futile, see Code of Civil Procedure § 583.340(c).

A complete stay of all proceedings which tolls the running of the five year period in which a case must be brought to trial.

A stay imposed by contractual arbitration will also toll the five year statute.

And impracticability can be shown by the death, illness or incapacity of the plaintiff or his or her counsel.

If the delay in the case has resulted entirely from court congestion there is no basis for dismissal for delay in prosecution.

And the court has broad discretion in determining whether the plaintiff’s excuse for the delay is reasonable.

Attorneys or parties in California that would like to view a portion of a 14 page sample opposition to a motion for mandatory dismissal for prosecution containing brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service 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.

View legal document packages for sale at: http://www.legaldocspro.net

Subscribe to my weekly newsletter with legal tips and tricks for California. http://www.legaldocspro.net/newsletter.htm

*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.

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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