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Motion for Mandatory Dismissal


Dismiss a Case for Failure to Bring to Trial

California Code of Civil Procedure (CCP) §§ 583.310-583.360 set time periods in which a plaintiff must bring an action to trial. The law creates these time limits to ensure that cases are brought to trial before evidence is lost or destroyed, and while witness memories are still reliable.  Additionally, requiring cases to be brought to trial within a set time period ensures that cases do not drag on, leaving issues undecided indefinitely.

Under CCP § 583.310, an action must be brought to trial within five years after it is commenced against the defendant. An action "commences" on the date the original complaint is filed with the court against the defendant. If other defendants are later added, those actions will have a different date of commencement. An action is "brought to trial" when the jury is sworn in a jury trial, or when the first witness is sworn in a non-jury trial. If parties stipulate to arbitration, the arbitration proceedings must begin within the five year period. This five year period is "tolled" or paused in some situations.

If the action is not brought to trial within five years, dismissal is mandatory on the motion of any party or on the court's own motion. The court makes no determination as to the merits of the case or on the evidence. The dismissal is based solely on a failure to move the case to trial in five years. The court must order a dismissal without prejudice, which allows the plaintiff to re-file the case, if it is still within the statute of limitations period. For more information, see the Statutes of Limitations guide on our website at http://www.saclaw.org/pages/statutes-limitation.aspx.

FORMS
There is no Judicial Council form for this procedure. Instead, the relevant documents must be typed on 28-line pleading paper. Customizable templates may be downloaded from these links:

Click here to download this Guide, with step-by-step instructions, including sample forms.