Sample California motion for discretionary dismissal for delay in prosecution

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Information about Sample California motion for discretionary dismissal for delay in...
Templates & Forms

Published on March 14, 2014

Author: LegalDocsPro

Source: slideshare.net

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This sample California motion for discretionary dismissal for delay in prosecution is made on the grounds that (1) plaintiff has failed to serve the summons and complaint within 2 years after the action is commenced against the defendant pursuant to Code of Civil Procedure section 583.410(a)(1), (2) plaintiff has failed to bring the action to trial within 3 years after the action is commenced against the defendant pursuant to Code of Civil Procedure section 583.420(a)(2) and (3) plaintiff has failed to bring the action to retrial within 2 years after a mistrial, order granting retrial or reversal on appeal pursuant to Code of Civil Procedure section 583.420(a)(3). The sample on which this preview is based is 10 pages and includes brief instructions, a memorandum of points and authorities with citations to case law and statutory authority, sample declaration and proof of service by mail.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Any Attorney or Party Any Street Any Town, CA 55555 714-555-5555 Any Attorney or Party Superior Court of the State of California For the County of _________________ Any Plaintiff, Plaintiff, vs. Any Defendant, and DOES 1-5 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. NOTICE OF MOTION AND MOTION FOR DISMISSAL FOR DELAY IN PROSECUTION; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF ________; EXHIBITS DATE: TIME: DEPT: To subscribe to my FREE California weekly legal newsletter visit http://freeweeklylegalnewsletter.gr8.com/ and enter your e-mail address. Be sure to remove this notice and all other notices before using this document. To view details of sample document packages for sale by LegalDocsPro visit http://www.legaldocspro.com/downloads.aspx - 1 - NOTICE OF MOTION AND MOTION FOR DISMISSAL FOR DELAY IN PROSECUTION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1TO: ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on _______________ at ___________, or as soon thereafter as the matter may be heard in Department ___of the above entitled court, located at ____________________________________________, LIST PARTY CAPACITY SUCH AS DEFENDANT, ETC., will and hereby does move this Court for an order dismissing the above- entitled action as to the LIST WHETHER PLAINTIFF, CROSS-COMPLAINANT, ETC. on the grounds that USE WHICHEVER STATUTE LISTED BELOW APPLIES TO YOUR CASE FOR FAILURE TO SERVE THE SUMMONS AND COMPLAINT USE THE ONE DIRECTLY BELOW: The failure to serve the summons and complaint on _____________ within 2 years pursuant to Code of Civil Procedure § 583.420(a)(1); FOR FAILURE TO BRING THE CASE TO TRIAL USE THE ONE DIRECTLY BELOW: The failure to bring this action to trial within 3 years pursuant to Code of Civil Procedure § 583.420(a)(2); FOR FAILURE TO BRING THE CASE TO RETRIAL USE THE ONE DIRECTLY BELOW: The failure to bring this action to retrial within 2 years after a mistrial, order granting new trial or reversal on appeal pursuant to Code of Civil Procedure § 583.420(a)(3). This motion is based on the declaration of LIST NAME OF PERSON(S) SIGNING DECLARATION, and exhibits attached thereto, the supporting memorandum served and filed with this motion, the records and file in this matter, and on such other oral and documentary evidence as may be presented at the hearing of this motion. - 2 - NOTICE OF MOTION AND MOTION FOR DISMISSAL FOR DELAY IN PROSECUTION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Be sure to modify these paragraphs to suit your individual situation. Do NOT just use the wording here unless it definitely applies to your particular situation. Remember that discretionary dismissal motions for delay in prosecution are subject to a special 45–day notice of hearing requirement pursuant to Code of Civil Procedure § 583.410 and California Rule of Court 3.1342(a). Dated________________ _______________________________________________ ANY ATTORNEY OR PARTY - 3 - NOTICE OF MOTION AND MOTION FOR DISMISSAL FOR DELAY IN PROSECUTION

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION To view the sample document on which this preview is based visit: http://www.scribd.com/doc/212415791/Sample-California-Motion-for- Discretionary-Dismissal-for-Delay-in-Prosecution - 4 - NOTICE OF MOTION AND MOTION FOR DISMISSAL FOR DELAY IN PROSECUTION

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