Judge: Steven A. Ellis, Case: 23STCV03681, Date: 2024-12-03 Tentative Ruling

Case Number: 23STCV03681    Hearing Date: December 3, 2024    Dept: 29

Brown v. Bank of America, N.A.
23STCV03681
Defendant’s Motion to Dismiss

Tentative

The motion is denied without prejudice.

Background

On February 21, 2023, April Marie Brown (“Plaintiff”) filed a complaint in pro per against Bank of America and Does 1 through 10.

On June 9, 2023, Bank of America, N.A. (“Defendant”) filed its answer.

On August 15, 2024, Plaintiff filed a request for dismissal of the entire action.  The requested dismissal was not entered, however, as the dismissal form was not completed correctly.

On November 4, 2024, Defendant filed this motion to dismiss.

No opposition has been filed.

Legal Standard

The court on its own motion or on motion of the defendant may dismiss an action under Code of Civil Procedure sections 583.410-583.430 for delay in prosecution if the action has not been brought to trial or conditionally settled within two years after the action was commenced against the defendant.¿ (See Cal. Rules of Court, rule 3.134(a).)¿ 

Discussion

Defendant brings this motion to dismiss under Code of Civil Procedure section 583.410 and California Rules of Court, rule 3.1342.

Defendant served Plaintiff with this motion electronically.  That is not proper service on a pro per Plaintiff.

Code of Civil Procedure section 1010.6(c)(2) & (3) provides:

“An unrepresented party may consent to receive electronic service.

Express consent to electronic service may be given by either of the following:

(i) Serving a notice on all parties and filing the notice with the court.

(ii) Manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.”

No proof of consent to electronic service has been filed with the Court.

Accordingly, the Court must deny this motion without prejudice.

Conclusion

The Court DENIES WITHOUT PREJUDICE Defendant Bank of America, N.A.’s motion to dismiss this action.

Moving Party is ORDERED to give notice.