Motion to dismiss for failure to bring to trial within five years
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subdivision (c) of Code of Civil Procedure section 397. That subdivision authorizes the Court, upon noticed motion, to change the place of trial “[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” (Defendant also cites subdivision (b) of Code of Civil Procedure section 395, but that code section does not authorize a motion to change venue.)
Although declarations in support of a motion for change of venue are not required by statute, the California Supreme Court has articulated the required showing to be made: declarations that name each witness, along with the substance of their testimony, and facts demonstrating why the witness’s attendance at trial will be inconvenient and how justice will be served. Peiser v. Mettler (1958) 50 Cal.2d 594; see also Juneau v. Juneau (1941) 45 Cal.App.2d 14, 16; Cal. Rules of Ct. 3.1306(a).
Here, defendant has failed to make the required evidentiary showing.
The denial is without prejudice to defendant compiling the requisite evidence, and refiling the motion.
The order to show cause is discharged.
The trial date is October 18, 2027 at 9:30 a.m. in Department C28. The parties shall comply with this court’s standing order regarding trial preparation. Should any party desire a jury trial, jury fees must be posted 25 calendar days before the trial date. The mandatory settlement conference date is September 17, 2027 at 8:30 in Department C28. Parties are ordered to timely file settlement conference statements.
Defendant shall give notice of this ruling.
57. Williams v. Defendants Sevilla Homeowners Association, Optimum Sevilla Professional Property Management, Inc., and Jason Hohalek’s Homeowners motion to dismiss the lead case for failure to bring to trial Association within five years is DENIED. (Code Civ. Proc., § 583.310 [five-year statute]; Brown v. Engstrom (1979) 89 Cal.App.3d 2021
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There is no dispute that trial in this consolidate action commenced prior to the expiration of the stipulated 5-year date of April 15, 2026. That trial was bifurcated to try certain issues to the court first, does not take this action out of the five-year statute. (In re Marriage of Macfarlane & Lang (1992) 8 Cal.App.4th 247, 253 [“once trial commences, the statute no longer applies, even though the proceedings amount only to a partial hearing;” see also id. at 254 [“In a nonjury case, the swearing of a single witness” is sufficient to “commence” trial].)
Moving parties rely on Sagi Plumbing v. Chartered Constr. Corp. (2004) 123 Cal.App.4th 443, but this case is distinguishable, as it involved a bifurcated trial on completely separate construction projects, while the instant action involves common issues between the first and second phases.
Plaintiffs’ request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d)(1).)
Plaintiffs shall give notice of this ruling.
58.
59. Vizcarra v. Defendant/Cross-Complainant/Cross-Defendant Canyon Plaza Bevmo! Inc. LLC’s Motion for Summary Judgment is GRANTED. (Code Civ. Proc. §437c.) 2023- 01348855 A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)
A defendant moving for summary judgment satisfies his or her initial burden by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action. (Code Civ. Proc., § 437c(p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–82 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 [respondent only required to defeat allegations reasonably contained in the complaint].)