California

Civil Procedure

Civil Procedure

Rule 3.1342 – Motion to dismiss for delay in prosecution

(a) Notice of motion

A party seeking dismissal of a case under Code of Civil Procedure sections 583.410-583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion. The party may, with the memorandum, serve and file a declaration stating facts in support of the motion. The filing of the notice of motion must not preclude the opposing party from further prosecution of the case to bring it to trial.

(b) Written opposition

Within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits.

(c) Response to opposition

Within 15 days after service of the written opposition, if any, the moving party may serve and file a response.

(d) Reply

Within five days after service of the response, if any, the opposing party may serve and file a reply.

(e) Relevant matters

In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including:

(1) The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;
(2) The diligence in seeking to effect service of process;
(3) The extent to which the parties engaged in any settlement negotiations or discussions;
(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;
(5) The nature and complexity of the case;
(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;
(7) The nature of any extensions of time or other delay attributable to either party;
(8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;
(9) Whether the interests of justice are best served by dismissal or trial of the case; and
(10) Any other fact or circumstance relevant to a fair determination of the issue.

The count must be guided by the policies set forth in Code of Civil Procedure section 583.130.

(f) Court action

The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.

Cal. R. Ct. 3.1342

Rule 3.1342 amended effective January 1, 2009; adopted as rule 373 effective January 1, 1984; previously amended effective January 1, 1986; previously amended and renumbered effective January 1, 2007.