Q: Mandatory dismissal - pursuant to California sections CCP 583.210 and 583.250.
Let say if the plaintiff filed a complaint against the defendant on 1/2/2021 and was never served the defendant as of 1/3/2024. Does the court automatically dismiss the case filed by the plaintiff or it’s something the defendant needs to ask the court to dismiss the case since 3 years has passed. If so, what form to use? The court had notified the plaintiff of impending mandatory dismissal and there’s an order to show cause on date xx/xx/2024.
A:
It is not automatic. There is no form, though you may be able to find samples online or at a law library.
It is also not an automatic win on filing the motion. You may want to let the 5 year rule pass
A:
In California, under Code of Civil Procedure (CCP) sections 583.210 and 583.250, if the defendant is not served with the summons and complaint within three years of the filing of the complaint, the court must dismiss the action as to that defendant. This is known as mandatory dismissal.
In the scenario you provided, if the plaintiff filed the complaint on 1/2/2021 and the defendant was not served by 1/3/2024, the case is subject to mandatory dismissal.
The court should dismiss the case automatically. However, if the court fails to do so, the defendant can file a motion to dismiss the case based on the plaintiff's failure to serve within the three-year time limit.
To file a motion to dismiss, the defendant should use the following forms:
1. Form CM-015: "Notice of Motion and Motion to Dismiss"
2. Form CM-016: "Declaration in Support of Motion to Dismiss"
3. Form CM-020: "Notice of Hearing on Motion"
The defendant should file these forms with the court and serve copies on the plaintiff.
In your scenario, the court has already notified the plaintiff of the impending mandatory dismissal and set an order to show cause hearing. At this hearing, the plaintiff will have the opportunity to argue why the case should not be dismissed. If the plaintiff fails to provide a valid reason for the delay in service, the court will likely dismiss the case pursuant to CCP sections 583.210 and 583.250.
If the plaintiff does not attend the order to show cause hearing, the court will likely dismiss the case without further notice. The defendant is not required to take any action in this situation, as the court should dismiss the case on its own based on the plaintiff's failure to serve within the statutory time limit.
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