2013-00140272-CL-PO

Tawana Williams vs. Rosa M. Rodriguez

Nature of Proceeding: Motion to Dismiss Action

Filed By: Murphy, Mollie C.

At oral argument on 3/8/2019, plaintiff requested a continuance of the hearing and this matter was therefore continued to 3/15/2019. However, because plaintiff subsequently withdrew her request for oral argument on this matter, the Court now AFFIRMS its original tentative ruling which is set forth below.

Defendant’s motion to dismiss this action for the now-in pro per plaintiff’s failure to bring this 2013 action to trial within five years is UNOPPOSED and is GRANTED, as follows.

Plaintiff commenced this action on 2/20/2013, seeking damages for personal injuries. Defendant now moves for mandatory dismissal of this 2013 action pursuant to Code of Civil Procedure §583.310 and §583.360 since plaintiff failed to bring this action to trial within five (5) years.

Coupled with the lack of opposition which is construed as a concession on the merits, this court will grant the motion to dismiss. Code of Civil Procedure §583.310 provides in its entirety:

“An action shall be brought to trial within five years after the action is commenced against the defendant.”

California law clearly holds that the five year period actually commences upon the filing of the complaint. For example, the First District Court of Appeal recently stated that “commencement” of an action for purposes of Code of Civil Procedure §583.310 “is firmly established as the date of filing of the initial complaint.” (Brumley v. FDCC California, Inc. (2007) 156 Cal.App.4th 312, 318 (emphasis added); see also, Brunzell Construction Co. v. Wagner (1970) 2 Cal.3d 545.) Accordingly, this court finds that the five year statute commenced on 2/20/2013.

Code of Civil Procedure §583.340 provides the only valid basis for potential tolling of the five year period:

“In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:

(a) The jurisdiction of the court to try the action was suspended.

(b) Prosecution or trial of the action was stayed or enjoined.
(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.

As plaintiff in pro per has failed to establish any valid basis for tolling the five year statute to bring this case to trial and has necessarily failed to carry its burden of establishing by clear and convincing evidence the existence of either impossibility, impracticability, or futility of bringing the matter to trial within five years,” this court must dismiss this action pursuant to Code of Civil Procedure §583.010.

Pursuant to CRC Rule 3.1312, moving counsel to prepare a judgment of dismissal.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)