Defendants Lennar Fresno, Inc. and Lennar Sales Corp.’s Motion to Dismiss Plaintiff Steve Lathrop’s (et. al) Complaint with Prejudice for Delay in Prosecution
(47) Tentative Ruling
Re: Steve Lathrop vs. Lennar Fresno, Inc. Superior Court Case No. 17CECG03900
Hearing Date: July 23, 2026 (Dept. 503)
Motion: Defendants Lennar Fresno, Inc. and Lennar Sales Corp.’s Motion to Dismiss Plaintiff Steve Lathrop's (et. al) Complaint with Prejudice for Delay in Prosecution
Tentative Ruling:
To grant Defendants Lennar Fresno, Inc. and Lennar Sales Corp. motion to dismiss plaintiff Steve Lathrop's (et. al) Complaint with prejudice for delay in prosecution. The matter is dismissed pursuant to Code of Civil Procedure section 583.340. Defendants to submit a judgment of dismissal to the court within 10 days of the clerks service of this ruling.
Explanation:
Defendants Lennar Fresno, Inc. and Lennar Sales Corp., (collectively, “Lennar” or “defendants”), file this motion to dismiss plaintiff Steve Lathrop's, et. al,1 (“plaintiffs”) Complaint with prejudice for delay in prosecution
Code of Civil Procedure section 583.130 provides that it “is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition. Except as otherwise provided by statute or by rule of court adopted pursuant to statute, the policy favoring the right of parties to make stipulations in their own interests and the policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”
Code of Civil Procedure section 583.310 requires that an “action shall be brought to trial within five years after the action is commenced against the defendant.” Further, Code of Civil Procedure section 583.360 provides, in relevant part: “(a) An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article. [¶] (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute."
In computing the time within which an action must be brought to trial there shall be excluded the time during which any of the following conditions existed:
1 Multiple plaintiffs have been dismissed from this case without prejudice since the action was
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first commenced. Accordingly, the term “Plaintiffs” as used herein shall collectively refer to all plaintiffs presently in the action. 8
(a) The jurisdiction of the court to try the action was suspended. (b) Prosecution or trial of the action was stayed or enjoined (c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.
This action was filed more than five years ago. The Complaint was filed on November 20, 2017. (Request for Judicial Notice (“RJN”), ¶6; McCalla Decl., ¶21. Ex. N.)
This case was briefly stayed on May 7, 2018, for 168 days, to allow the parties to complete Lennars Alternative Non-Adversarial Pre-Litigation Procedures (“Pre-litigation Procedures”), the stay was lifted on January 8, 2019. (RJN, ¶8; McCalla Decl., ¶24, Ex. P.)
Although, while the action was stayed, the parties further stipulated to permit plaintiffs to file a second amended complaint to: (1) remove both causes of actions for strict products liability and the cause of action for violation of statute, and (2) identify which Plaintiffs were original the cause of action for violation of statute, and (2) identify which Plaintiffs were original homeowners. (RJN, ¶9; McCalla Decl., ¶25, Ex. Q.) The Court entered the order authorizing plaintiffs to file their Second Amended Complaint on July 13, 2018. (Id.)
Following the parties’ completion of the Pre-litigation Procedures, the Court ordered the stay lifted on January 8, 2019, and Lennar timely filed its answer to the Second Amended Complaint. (RJN, ¶¶ 10, 11; McCalla Decl. ¶¶ 26-27, Exs. R, S.)
The plaintiffs bears the burden of proving that the circumstances warrant application whether the circumstances warrant any of the exceptions set forth in the Code of Civil Procedure section 583.340, subsection (c). (Bruns v.E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 731.)
Since this motion is unopposed, plaintiffs failed to establish their due diligence and, in addition, whether it was impossible, impracticable, or futile for the plaintiff to comply with the statutory five year constraint due to causes beyond his or her control. Accordingly, the motion is granted. The matter is dismissed pursuant to Code of Civil Procedure section 583.340.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JS on 7/21/2026. (Judge’s initials) (Date)
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