PRETRIAL ADJUDICATION
...Dismissal
......Involuntary: Discretionary
.........Delay in Service/Trial: Ct’s Discretion
 13 Cards On This Topic:
  • Court has discretion to dismiss on own motion or that of D for delay in prosecution.
  • Where dismissal for delay in prosecution occurred on court's own motion, CRC 3.1340(b) applied and court's 28-day notice was proper.
  • Court could properly grant D's request for order shortening time to hear its motion of discretionary dismissal.
  • Ct. has discretion to determine whether attorney neglect excuses delay in bringing case to trial in considering whether to grant Code Civ. Proc. §583.410 dismissal.
  • No abuse of discretion in dismissing malpractice action, though service arguably within 2 yrs., where dismissal based both on delay in service and failure to prosecute diligently.
  • Dismissal proper even where no actual prejudice to Ds; every person who files action must prosecute with promptness and diligence.
  • Dismissal for lack of prosecution affirmed where P did virtually nothing to prosecute for 3-1/2 yrs; open-ended extension for his benefit alone and did not toll time.
  • When plaintiff fails to make showing of excusable delay, trial court remains within its discretion in dismissing case despite lack of actual prejudice.
  • 2 standards re atty neglect exist after Code Civ. Proc. §473 amended: discretion pursuant to Rules of Ct. formulae for Code Civ. Proc. §583.410 dismissal, and no-questions-asked policy under Code Civ. Proc. §473.
  • When Leg. incorporated dismissals into CCP §473 it intended to reach only those occurring through failure to oppose dismissal motion—the only dismissals procedurally equivalent to default; literal interpretation rejected.
  • Competing considerations for trial court in exercising discretion to dismiss.
  • Even in face of unjustifiable delay in service, trial court free to consider all factors set forth in CRC rule 3.1342 (e) to deny discretionary dismissal motion.
  • Dismissal for failure to bring to trial within 2 yrs. appropriate, though P granted D open extension of time to respond, where extension for P’s benefit.


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