Order to Show Cause Re: DISMISSAL; Ex Parte Application to dismiss
RG21098917: Drawsand VS Flores Ortega 06/16/2026 Order to Show Cause Re: DISMISSAL in Department 15
Tentative Ruling - 06/15/2026 Peter Borkon
ORDER RE: CASE MANAGEMENT AND DISMISSAL OF ACTION
The Court has ordered the following after review of the case.
On March 5, 2026, the Court Sustained Interinsurance Exchange of the Automobile Club's demurrer without leave to amend. The Court also issued an order that same day on Defendant Ortega's demurrer sustaining in part without leave to amend and sustaining with leave to amend as to other claims. Plaintiffs had 14 days to amend the Third Amended Complaint.
Plaintiffs did not timely amend the Complaint. Defendant Ortega filed an ex parte application to dismiss based on Plaintiffs' failure to amend the complaint in a timely manner. On May 5, 2026, the Court issued an Order to Show Cause why this case should not be dismissed for exceeding the fiver year limit to bring this matter to trial. See CCp 583.310.
Plaintiffs suggest they filed a Fourth Amended Complaint on March 26, admittedly after the deadline. The Court has not located a Fourth Amended Complaint on the record of action. Plaintiffs responded to the order to show cause and the ex parte. Plaintiffs argue that the 5 year limit has not expired because of various alleged tolling periods. Plaintiffs contend that the clock was tolled every time they needed to meet and confer after a demurrer was filed, while demurrers were pending and the time after a demurrer hearing until the amended complaint was filed.
Plaintiffs also suggest that because this matter was reassigned four times to different judges the case lacked procedural consistency and this resulted in excused delays that tolled the five year limit. Upon review of the docket and application of the Code of Civil Procedure, the Court disagrees and finds that this matter has exceeded the five year period. This matter is DISMISSED without prejudice.
The five-year period in which an action must be brought to trial is tolled (extended) by any period of time during which:
1) The court's jurisdiction to try the action was suspended (CCP, sec. 583.340(a) 2) prosecution of the action was stayed or enjoined (CCP, sec. 583.340(b), or 3) bringing the action to trial, for any other reason, was "impossible, impracticable, or futile." (CCP 583.340(c)
This Court has had jurisdiction over this matter the entirety of the case and the case was never stayed or enjoined. Therefore, the first two factors are not relevant here. Plaintiffs lean on the third factor. Review of the record of action reveals more that 15 case management orders. They range from continuing the hearing to allow Plaintiffs more time to serve the complaint to RG21098917: Drawsand VS Flores Ortega 06/16/2026 Order to Show Cause Re: DISMISSAL in Department 15 warning Plaintiffs that failure to serve the complaint or file CMC statements may result in dismissal of the case.
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The Court has afforded Plaintiffs every opportunity to prosecute this matter to trial and was often hindered by Plaintiffs failure to file documents such as complaints or case management conference statements. Despite these errors, the Court allowed Plaintiffs to continue attempting to perfect their pleadings and move this case to trial. That did not happen as the 5-year statute has now run its course and the Court is required to dismiss this case. On the pleadings before the Court, Plaintiffs cannot demonstrate that there were times that bringing the case to trial was impossible impracticable or futile.
Plaintiffs had the capacity to cure the pleading defects, properly file the various documents and move this case to trial, but were unable accomplish that task.
Accordingly, this matter is dismissed.
Court orders the entire case dismissed Without Prejudice.
If you contest the tentative ruling you must do so in a timely manner in accordance with the Local Rules. Failure to alert the Court and the opposing side or to appear will result in the Court affirming its tentative ruling. If the tentative ruling is uncontested, no appearance is necessary and the Court's tentative ruling will become a final order of the Court after the hearing.
Counsel must carefully review the order which will set forth the Court's reasoning. Counsel must also review Dept. 15's information page, which contains answers to frequently asked questions, and sets forth guidance for communicating with the department and litigating certain motions and proceedings. This information is available on the eCourt Public Portal at www.eportal.alameda.courts.ca.gov under the Direct Calendaring tab. If any party contests, the zoom login credentials are:
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