2015-00180641-CU-PO

Jeffery Michael Caylor vs. Keri Ann Hamilton

Nature of Proceeding: Motion to Dismiss

Filed By: Helm, Kristofor K.

Defendant Keri Ann Hamilton’s unopposed motion to dismiss is granted.

Defendant’s request for judicial notice is granted.

Defendant moves to dismiss Plaintiff’s complaint which was filed on June 17, 2015 on the basis that Plaintiff has failed to serve the complaint.

Pursuant to CCP § 583.210, “the summons and complaint shall be served upon a defendant within three years after the action is commended against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint

is filed.” (CCP § 583.210(a).) If service is not made within the three year time limit, “the action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties.” (CCP § 583.250(a)(2).) Dismissal is mandatory and not subject to “extension, excuse, or exception as expressly provided by statute.” (CCP § 583.250
(b).) The burden is on the plaintiff to demonstrate that the case should not be dismissed for failure to serve within the three year period. (E.g., Perez v. Smith (1993) 19 Cal.App.4th 1595, 1597.)

Here, the complaint was filed on June 17, 2015 yet Plaintiff has not served Defendant. Having failed to oppose the motion, Plaintiff cannot meet his burden to show why the case should not be dismissed for failure to serve Defendant within the three year period.

As a result, Plaintiff’s complaint is dismissed as to Defendant for failure to serve the summons and complaint within the statutory time period.

The motion to dismiss is granted, without prejudice. (Franklin v Wilson (2007) 148 Cal. App. 4th 187, 215.)

Pursuant to CRC 3.1312 Cross-Defendant shall submit an order of dismissal without prejudice.