TENTATIVE RULING

Plaintiff/Cross-Defendant Ronda Fenn’s Motion to Dismiss Cross-Complaint for Violation of Five-Year Rule is GRANTED.

Plaintiff/Cross-Defendant Ronda Fenn shall prepare, serve, and submit a Proposed Judgment of Dismissal (pursuant to Code of Civil Procedure section 583.310) as per statute.

Plaintiff/Cross-Defendant Ronda Fenn to give notice. 

REASONING

Code of Civil Procedure section 583.310 requires that an action “be brought to trial within five years after the action is commenced against the defendant.” Code of Civil Procedure section 583.340 provides that “[i]n computing the time within which an action must be brought to trial,” the Court shall exclude the time during which any of these conditions existed: “(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.” Code of Civil Procedure section 583.360, subdivision (a), provides that “[a]n 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.”

Plaintiff/Cross-Defendant Ronda Fenn (“Plaintiff”) filed this action on September 28, 2017, and on August 22, 2018, Defendants/Cross-Complainants Douglas C. Koch and Doheny Drive Holdings, LLC (“Defendants”) filed their Cross-Complaint against Plaintiff. Plaintiff now moves to dismiss the Cross-Complaint on the ground that Defendants failed to bring it to trial within five years, plus an additional six months provided by Emergency Rule 10(a), enacted by the Judicial Council of California in response to the COVID-19 pandemic. Plaintiff argues there has been no extension of the statute, no stay of the action, and no suspension of the Court’s jurisdiction, such that the Cross-Complaint must be dismissed pursuant to Code of Civil Procedure section 583.360. Defendants have filed a Notice of Non-Opposition to Plaintiff’s motion, stating that they do not oppose Plaintiff’s motion to dismiss, but they reserve all rights to assert the claims alleged in the Cross-Complaint as affirmative defenses and to recover costs. The Court will not issue an advisory opinion as to the merits of either of these arguments, as they are not properly before the Court in this motion.

The Court finds that the Cross-Complaint must be dismissed for failure to bring it to trial within five years and six months. Accordingly, Plaintiff/Cross-Defendant Ronda Fenn’s Motion to Dismiss Cross-Complaint for Violation of Five-Year Rule is GRANTED. Plaintiff/Cross-Defendant Ronda Fenn shall prepare, serve, and submit a Proposed Judgment of Dismissal (pursuant to Code of Civil Procedure section 583.310) as per statute.