Motion to Dismiss for Failure to Prosecute
8. S-CV-0054051 Ortega, Jorge v. Chong 274 Inc.
Motion to Dismiss for Failure to Prosecute
Defendant Chong 274, Inc. moves to dismiss for failure to prosecute the action pursuant to Code of Civil Procedure section 583.410 and 583.420. No opposition has been filed.
“The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case.” (Code Civ. Proc., § 583.410, subd. (a).) However, “[t]he court may not dismiss an action pursuant to this article for delay in prosecution except after one of the following conditions has occurred:” (1) service is not effected within 2 years, (2) the action is not brought to trial within 3 years or 2 years in certain circumstances, or (3) a new trial is granted and not brought to trial within a specified time. (Code Civ. Proc., § 583.420, subd. (a).)
Defendant presents evidence, and a review of the court file confirms, plaintiff has not actively participated in this action since his counsel was relieved on counsel’s motion, effective July 28, 2025. Plaintiff did not attend the Case Management Conference scheduled for July 14, 2025. The court issued a notice of Order to Show Cause hearing regarding the failure to appear. Plaintiff did not attend the Order to Show Cause hearing on October 13, 2025. The court continued the Order to Show Cause hearing and issued another notice of Order to Show Cause. At the continued Order to Show Cause hearing on March 2, 2026, plaintiff again did not appear.
While this record appears to support a conclusion that plaintiff is not prosecuting this action with reasonable diligence, there are two problems with defendant’s argument. First, this action does not meet any of the circumstances for statutory dismissal outlined in Code of Civil Procedure section 583.420. Second and through no fault of defendant, the court’s Order to Show Cause notices were erroneously mailed to plaintiff’s former counsel but not to plaintiff. It appears defendant recognized this problem as defendant served plaintiff with the court’s notice of the Order to Show Cause hearing for March 2, 2026. However, as the notice of Order to Show Cause hearing was still improperly directed to plaintiff’s prior counsel of record rather than to plaintiff, defendant’s efforts did not cure the notice issue.
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Based on the foregoing, the motion to dismiss for failure to prosecute is denied without prejudice.
Order to Show Cause Regarding Dismissal
This matter is currently scheduled for an Order to Show Cause hearing regarding dismissal on July 16, 2026 at 9:00 a.m. in Department 3. Plaintiff Jorge Ortega shall personally appear at the hearing to explain why the court should not dismiss his complaint. Plaintiff’s failure to appear at the Order to Show Cause hearing may result in
dismissal of the action. The clerk of the court is directed to serve plaintiff by mail a notice of Order to Show Cause and a copy of this order.
9. S-CV-0054351 Garvey-Altizer, Cheryl v. County of Placer
Motion for Leave to file Third Amended Complaint
Plaintiff requests leave to file a third amended complaint, which will repeat the allegations brought in the first amended complaint. Defendants Johnnie Hardy and Ruth Mary Hardy did not file a response. Defendants City of Lincoln and County of Placer do not oppose the motion, as long as the City and County are dismissed from the lawsuit with prejudice. The court grants plaintiff’s motion for leave to file a third amended complaint. Plaintiff shall file and serve a third amended complaint on or before June 26, 2026.
10. S-CV-0055515 Henschel, Matthew v. Hengl, Kevin
The motion for disgorgement is dropped from calendar in light of the notice of withdrawal filed on May 6, 2026.
11. S-CV-0056157 Saetern, Tracy v. Donohue, Marty Wayne
Application for a Right to Attach Order (“RTAO”)
Plaintiff seeks a RTAO and issuance of a writ of attachment as against defendant Marty Wayne Donohue in the amount of $159,695.29 pursuant to Code of Civil Procedure section 483.010.
Code of Civil Procedure section 484.010 requires that prior to a writ being issued, the defendant must be served a copy of the summons and complaint as well as the notice of application and hearing and supporting documents. While the proof of service attached to the notice of application and hearing for RTAO shows service of the moving papers on defendant Marty Wayne Donohue by mail, a review of the court’s file reveals insufficient evidence of the operative complaint. The proof of service filed December 24, 2025 purporting to show service of summons and complaint on defendant Donohue is deficient as it is unsupported by a declaration of diligence as required by Code of Civil Procedure section 415.20(b). The proof of service attached to the first amended complaint shows mailed service only which, in light of the deficient service of the initial complaint, is likewise deficient.
Additionally, plaintiff seeks to attach partnership assets. Plaintiff provides no explanation or briefing as to why service of this application should not be required as to the partner.
Aside from these procedural deficiencies, a RTAO may be issued for a claim for money based on contract of an amount based on contract where the total amount is fixed or readily ascertainable not less than $500. (Code Civ. Proc., § 483.010, subd. (a).)
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