Title: Motion to Dismiss Lack of Prosecution - Template
Author: Court User
Last saved by: Kate Fitz
Company: Microsoft Corporation

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Your Name
Your Address
City, State, ZIP
Phone		

Your Name
Defendant In Pro Per

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

Plaintiff's Name  
	Plaintiff,
	vs.
Your Name
	Defendant

Case No.:  Case Number

NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO BRING TO TRIAL; POINTS AND AUTHORITIES; DECLARATION OF YOUR NAME

Date:    Hearing Date        
Time: Hearing Time
Dept: Department 
Date Action Filed:  Date Case Was Filed
Trial Date: Trial Date, if scheduled

To plaintiff,   Plaintiff's Name   and to his/her attorney of record Attorney's Name:
NOTICE IS HEREBY GIVEN that on Hearing Date at Hearing Time or as soon thereafter as the matter may be heard, in Department Department this court, located at Court Address, defendant, Your Name will, and hereby does, move for an order to dismiss the above-entitled action pursuant to Code of Civil Procedure Sections 583.310 and 583.360(a). The motion is made on the ground that plaintiff has failed to prosecute the above-entitled action and to bring it to trial within five years after it was commenced against the defendant.
The motion is based on this notice of motion, on the declaration(s) of  Your Name
 and the supporting memorandum served and filed with it, on the records and file in this action, and on any evidence that may be presented at the hearing of the motion.
Pursuant to Local Rule 1.06 (A) the court will make a tentative ruling on the merits of this matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative rulings for the department may be downloaded off the court’s website. If the party does not have online access, they may call the dedicated phone number for the department as referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative ruling. If you do not call the court and the opposing party by 4:00 p.m. the court day before the hearing, no hearing will be held.

Dated:	 Date

	
  Defendant, In Pro Per

Memorandum of Points and Authorities in Support of Motion to Dismiss

THE ACTION MUST BE DISMISSED PURSUANT TO SECTION 583.360 OF THE CODE OF CIVIL PROCEDURE BECAUSE IT WAS NOT BROUGHT TO TRIAL WITHIN THE TIME PERIOD SPECIFIED IN SECTION 583.310 OF THE CODE OF CIVIL PROCEDURE.

A. Statutory Requirements. An action must be dismissed by the court on its own motion or the defendant’s motion, after notice to the parties, if it is not brought to trial within five years after it is commenced against the defendant (Code Civ. Proc. §§ 583.310,  583.360(a)).

B. Dismissal Mandatory. Dismissal of an action pursuant to Section 583.360 of the Code of Civil Procedure is mandatory in the sense that if the action is not brought to trial within the period provided in  Section 583.310 of the Code of Civil Procedure, the court is without discretion to refuse dismissal unless the plaintiff can establish an extension, excuse, or exception expressly provided by statute (Code Civ. Proc. § 583.360(b); see Andersen v. Superior Court (1921) 187 Cal. 95, 97, 200 P. 963; Fannin Corp. v. Superior Court (1974) 36 Cal. App. 3d 745, 749, 111 Cal. Rptr. 920).

C. Beginning of Period for Bringing Action to Trial. The statutory period described in  Section 583.310 of the Code of Civil Procedure runs from the date of filing of the original complaint against the defendant and is not affected by the filing of an amended complaint stating the same cause of action against the same defendant (see Davalos v. County of Los Angeles (1983) 142 Cal. App. 3d 57, 63, 190 Cal. Rptr. 711).

D. When Action Is Deemed to Have Been Brought to Trial. The requirement that an action be brought to trial or new trial within a specified period of time is not satisfied unless a jury is impaneled, a witness is called who testifies, or there has otherwise been a determination of law or fact that brings the action to the stage of final disposition (see McDonough Power Equipment Co. v. Superior Court (1972) 8 Cal. 3d 527, 531–532, 105 Cal. Rptr. 330, 503 P.2d 1338; Weeks v. Roberts (1968) 68 Cal. 2d 802, 805, 69 Cal. Rptr. 305, 442 P.2d 361).

E. Even When Tolled for Periods of Suspended Jurisdiction, Trial Was not Commenced In Time. Exceptions to mandatory dismissal include written stipulations or oral agreements made in open court extending the five-year time period; exclusion from the computation of the five years any time period during which the jurisdiction of the court was suspended or the prosecution of the action was stayed; and bringing the action to trial was impossible, impracticable, or futile (Code Civ. Proc. §§ 583.330(a),  (b), 583.340(a)–(c); Jordan v. Superstar Sandcars (2010) 182 Cal. App. 4th 1416, 1420, 107 Cal. Rptr. 3d 5).

For the aforementioned reasons, this lawsuit is subject to mandatory dismissal and should be dismissed by the court for failure to bring to trial.

Dated:	 Date

	
  Defendant, In Pro Per

DECLARATION OF YOUR NAME

I,   Your Name, am the Defendant in this matter, and I declare the following:

Type the text of your declaration here, in numbered paragraphs. Use as much space as you need. 

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Dated:	 Date

	
  Defendant, In Pro Per

Motion to Dismiss -