Dismiss a Case for Failure to Bring to Trial
Disclaimer: This guide is intended as general information only. Your case may have factors requiring different procedures or forms. The information and instructions are provided for use in the Sacramento County Superior Court. Please keep in mind that each court may have different requirements. If you need further assistance, consult an attorney.
Click here to download this Step-by-Step guide as a pdf.
Click here for a customizable motion: http://www.saclaw.org/Uploads/files/Step-by-Step/MotionToDismiss.rtf
Click here for a customizable proposed order: http://www.saclaw.org/Uploads/files/Step-by-Step/ProposedOrderDismissal.rtf
This packet includes:
- Step-by-Step Instructions
- Sample Motion to Dismiss for Failure to Bring to Trial
- Sample Declaration
- Sample Proposed Order for Dismissal 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. Examples include periods after settlement is reached or judgment is entered; periods when it is "impossible, impractical or futile" to bring the action to trial (CCP § 583.340(c)); while the trial court's jurisdiction is suspended, such as when a case is on appeal, or during the time between the death of a defendant and the appointment of a personal representative; during a court-ordered stay of proceedings; or during contractual or judicial arbitration or mediation.
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.
STEP 1: PREPARE THE MOTION
1.1 Motions in General
A request to dismiss a case for failure to bring to trial is made through a motion. A "motion" is a request made in a case asking the court to issue an order of some sort. Most motions are in writing. With few exceptions (such as in family law cases), there is no Judicial Council form for making a motion. Instead, the motion must be typed on 28-line pleading paper. A written motion consists of four parts:
1) Notice of Motion;
3) Points and Authorities; and
The Notice of Motion lets the opposing party know when and where the motion is scheduled to be heard, while the Motion lets the court and the opposing party know what is being requested. The Points and Authorities explain to the court and the opposing party the legal basis of the motion, while the Declaration provides evidence, sworn under penalty of perjury, supporting the motion. The first two parts, the Notice of Motion and Motion, are typically combined together in the same document, while the Points and Authorities and Declaration are often separate documents. In many instances, however, they may be combined together into the same document, as in the case of the sample included in this Step-by-Step Guide.
1.2 Modify the Template Motion and Proposed Order
Download this guide for a sample motion to dismiss for failure to bring to trial. You may download a customizable template of the motion from our website at http://www.saclaw.org/Uploads/files/Step-by-Step/MotionToDismiss.rtf and the proposed order at http://www.saclaw.org/Uploads/files/Step-by-Step/ProposedOrderDismissal.rtf. You will need to modify the text in blue to fit the specific facts of your case, and change the color of the text from blue to black. The court will not accept blue type in court pleadings. Although this guide is printed double-sided to save paper, you must print your motion single-sided; the court will not accept double-sided documents.
1.3 Setting the Date of the Motion
Online Court Date Calculator
The Los Angeles County Superior Court offers a handy "Court Date Calculator" to assist in calculating the number of court days (excluding weekends and holidays) from a given date, counting either forward or backward.
In Sacramento, the party asking to dismiss the case is responsible for setting the date for hearing the motion. Motions to dismiss are heard in Department 53 at 2:00 p.m. or Department 54 at 9:00 a.m., depending on your case number, Monday through Friday except for holidays. To determine whether your motion is in department 53 or 54:
- If your case was filed after January 1, 2013, look at the last digit of the case number. If it is odd, then your law and motion department is 53 at 2:00 p.m. If it is even, it is department 54 at 9:00 a.m.
- If your case was filed prior to 2013, your law and motion department was assigned when the case was filed, and should be shown on the first page of the Complaint.
There are two very important deadlines you must consider when setting the date of a motion: the filing deadline and the service deadline.
Filing Deadline: The motion must be filed with the court at least sixteen court days prior to the motion date (CCP § 1005). Court days are Monday through Friday, excluding court holidays. To determine whether a particular filing date will meet this deadline, start with the first court day after the planned filing date as day one, and count forward sixteen court days. The first possible date the motion can be heard is day sixteen.
For example, suppose you wanted to file a document on May 21, 2012. You would start counting using May 22nd as day one. Do not count weekends or court holidays (there is only one court holiday in this example, which is Memorial Day, May 28). If you wanted to file a motion on May 21, 2012, the sixteenth court day after that would be June 13, 2012, which is the earliest date the motion could be heard.
Service Deadline: Prior to filing the motion with the court, all other attorneys, or self-represented parties in a case must be served with a copy of the motion. This means that someone over the age of 18 who is not a party in the case must either personally deliver a copy of the motion and related documents to the attorney or self-represented party or mail a copy of the motion and related documents to the party by first class mail.
If the motion is personally served, the service must be at least sixteen court days prior to the date of the motion, the same as the minimum filing deadline.
If the motion is served by first-class mail, additional time is added to the calculation, depending on where the mail originates and where it is sent (CCP § 1005). For example, if the documents are mailed from California to an address in California, five calendar days are added after the sixteen court days. Calendar days include weekends and holidays, but if the final day lands on a weekend or holiday, it is rolled over to the next court day. So, using May 21, 2012 as the date of mailing, for example, the sixteenth court day remains June 13, 2012, but five more calendar days must be added to determine the earliest motion date. This would make Monday, June 18th the first day the motion could be heard.
When choosing the date of your motion, be sure that you have left enough time for the motion to be both served and filed in a timely fashion.
STEP 2: MAKE COPIES
Make four (4) copies of your Motion. One of these copies is to be served on the other side's attorney (or the other side, if the other side does not have an attorney); the original and the other three copies are to be filed with the court. Staple each of the copies, but leave the original unstapled. Sacramento County Superior Court uses an electronic filing system in which documents are scanned in electronically. Stapled originals are not accepted because the staple will jam in the scanner, damaging both the document and the scanner.
STEP 3: HAVE THE MOTION SERVED
The person who is serving your Motion for you must complete a proof of service form, typically, either a Proof of Personal Service form or a Proof of Service by First Class Mail form. For more information on these Proofs of Service, see the guides on our website at http://www.saclaw.org/pages/personal-service.aspx and http://www.saclaw.org/pages/pos-mail.aspx, respectively.
The proof of service form should be completely filled out, but not signed. Make a copy of the unsigned proof of service before proceeding.
The person over the age of 18 who is not a party to the case must then personally deliver or mail a copy of the Motion along with a copy of the unsigned proof of service form on other side's attorney (or the other side, if the other side does not have an attorney). The unsigned proof of service form can be attached as the last page of the Motion.
The person doing the serving then signs the Proof of Service form, and gives the signed Proof of Service to you.
STEP 4: COPY THE SIGNED PROOF OF SERVICE
Make three (3) copies of the signed Proof of Service. It is not necessary to copy the instruction page.
STEP 5: ASSEMBLE YOUR DOCUMENTS FOR FILING
Assemble your packet for filing as follows:
- Motion with all pages, plus three (3) copies. The original should be unstapled in Sacramento, while each copy is stapled.
- Proposed Order with all pages, plus three (3) copies. The original should be unstapled in Sacramento, while each copy is stapled.
- Completed Proof of Service Form. The original plus three (3) copies. This proof of service can be attached as the last page of the Motion when filing. If this is the case, then the original Proof of Service should be attached to the original Motion, and the copies of the Proof of Service should be attached to the copies of the Motion.
STEP 6: FILING/FEES
File your motion and proof of service on the first floor of the Courthouse at 720 Ninth Street.
At this time there is a $60 filing fee, unless your fees were waived. Current fees are available on the Sacramento County Superior Court's website. If you newly qualify for a fee waiver, you may file a request with the court. For more information, see the Step-by-Step guide on Fee Waivers on our website at http://www.saclaw.org/pages/fee-waiver.aspx.
STEP 7: OPPOSITION AND REPLY
If opposing counsel or self-represented party opposes your request for dismissal, he or she may serve and file an opposition at least nine court days prior to your hearing date. Be sure to check your mail, and read any documents you receive carefully.
If the opposing attorney or party opposes your motion, you may serve and file a reply to the opposition (also written on pleading paper), at least five days prior to the motion. This reply should carefully address any points made by the opposition, especially if that point was not originally addressed in your motion.
STEP 8: TENTATIVE RULINGS
Pursuant to Local Rule 1.06, the court will make a tentative ruling on the merits of your matter by 2:00 p.m. the court day before the hearing. You may read the tentative ruling online, or may call the clerk for Department 53 ((916) 874-7858) or Department 54 ((916) 874-7848) to hear it. For information on how to view the ruling online, see the "Tentative Rulings" Guide on our website at http://www.saclaw.org/pages/tentative-rulings.aspx.
Closely review the tentative ruling. Since you are asking the court to dismiss the case, you are looking for your motion to be "GRANTED." If the court does not grant your request, your motion will be "DENIED."
If you are happy with the tentative ruling, you do not need to do anything. You won't have to go to court unless ordered to appear in the tentative ruling or unless the other side calls you and the court between 2:00 p.m. and 4:00 p.m. the court day before your hearing date to request an oral argument in front of the judge. If that happens, you should go to the court hearing and be prepared to argue why you believe the case should be dismissed.
If you are not happy with the tentative ruling, and wish to present arguments in front of the judge, you must call all opposing counsel and/or self-represented parties, and the clerk for Department 53 ((916) 874-7858) or Department 54 ((916) 874-7848) no later than 4:00 p.m. the court day before your hearing and state that you are requesting oral argument on the motion. If neither you nor the opposing counsel or self-represented party requests oral argument, the court will simply make the tentative ruling the order of the court, and no oral argument will be permitted.
FOR MORE INFORMATION
At the Law Library:
California Civil Courtroom Handbook and Desktop Reference KFC 995 .Z9 T46
Electronic Access: On the Law Library's computers, using WestlawNext.
California Civil Practice: Procedure KFC 995 .A65 B3 §§22:65-22:69
Electronic Access: On the Law Library's computers, using WestlawNext.
California Forms of Pleading and Practice KFC 1010 .A65 C3 (Ready Reference)
§§212.120-212.149Electronic Access: On the Law Library's computers, using the Matthew Bender CD.
California Practice Guide: Civil Procedure Before Trial KFC 995 .W45 §§11:191 et seq.
Electronic Access: On the Law Library's computers, using WestlawNext.
California Pretrial Civil Procedure KFC 995 .M38 Chap. 40
IF YOU HAVE QUESTIONS ABOUT THIS GUIDE, OR IF YOU NEED HELP FINDING OR USING THE MATERIALS LISTED, DON'T HESITATE TO ASK A REFERENCE LIBRARIAN.
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