07AS04914

United Service Auto Assn vs. State Farm Insurance

Nature of Proceeding: Motion for Mandatory Dismissal

Filed By: Buckley, Paul A.

Defendant Brooks’ motion to dismiss plaintiff’s complaint (subrogation) for failing to
bring the action to trial within five years is GRANTED.

Moving counsel is admonished because the notice of hearing/motion/demurrer does
not provide notice of the Court’s tentative ruling system, as required by Local Rule
1.06, and does not provide the correct address for Dept. 54. Moving counsel is
directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the
Court’s tentative ruling procedure and the manner to request a hearing. If moving
counsel is unable to contact opposing counsel prior to hearing, moving counsel
is ordered to appear at the hearing in person or by telephone.

This action was filed 10/25/2007 and was subsequently stayed three (3) times, for a
total of roughly 18 months, pursuant to the provisions of the Soldiers and Sailors Civil
Relief Act.

Defendant now moves for mandatory dismissal of this action pursuant to Code of Civil
Procedure §583.360 since it was not brought to trial within five (5) years (after
accounting for the amount of time when this action was stayed).

According to the opposition, plaintiff has exercised reasonable diligence in prosecuting
this case but was hindered by defendant’s active service, which not only precluded the
latter’s ability to respond to discovery but also led to the vacating of a 2011 trial date.
Plaintiff further argues that this motion should be denied pursuant to the exception set
forth in Code of Civil Procedure §583.340(c) (bringing the action to trial was “impossible, impractical, or futile”) since defendant was still on active duty as of
September 2013.

Because plaintiff has clearly failed to bring this matter to trial within the required five (5)
year period specified in Code of Civil Procedure §583.310 (after accounting for the
three stays amounting to roughly 18 months), dismissal of this action is mandatory
unless plaintiff can demonstrate that one of the three (3) exceptions in §583.340
applies. While defendant’s active military status has clearly slowed the progress of
this action, the Court is not persuaded by plaintiff’s contention that bringing this case to
trial within five (5) years was “impossible, impractical, or futile” within the meaning of
§583.340(c) particularly since the last formal stay expired by its own terms on
1/15/2012. Accordingly, defendant’s motion to dismiss is hereby granted.

This minute order is effective immediately. Pursuant to CRC Rule 3.1312, defendant
to prepare a proposed order and a proposed judgment of dismissal.