2016-00191651-CU-BC

Law Offices of Wanland & Burgess vs. Donald Martin Wanland J

Nature of Proceeding: Motion to Dismiss Cross Complaint

Filed By: Burgess, Jason W.

Plaintiffs motion to for discretionary dismissal of the cross-complaint filed by

by Defendant Donald M. Wanland for failing to serve that pleading within two years of filing is unopposed but is denied, without prejudice, for lack of proper notice.

The Court earlier denied the same motion on September 6, 2018 because the moving parties had not provided 45 days notice. The proof of service attached to this motion filed December 21, 2018 is identical to the proof of service filed on August 13, 2018 stating service by mail was accomplished on August 7, 2018. The moving party may not piggy back the earlier insufficient notice period to the later filed motion to aggregate the notice periods. Moreover, it is impossible that this motion, signed October 23, 2018 by Jason W. Burgess, could have been served on defendant on August 7, 2018.

An action may be dismissed by the court on its own motion or the defendant’s motion, after notice to the parties, if service is not made in the case two years after it is commenced against the defendant (Code Civ. Proc. §§ 583.410, 583.420(a)(1)). Section 583.410 states that the court may dismiss an action for

delay in prosecution on motion of the defendant ” if to do so appears to the court appropriate under the circumstances of the case.” (CCP § 583.410 (a)). Dismissal under article “shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.” (CCP § 583.410 (b).)

Pursuant to CRC 3.1342, this motion must be served no sooner than 45 days before the hearing. The Court finds that this motion, signed October 23, 2018, was not served on August 7, 2018.

The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required.