(a) Notice of motion A party seeking dismissal of a case under Code of Civil Procedure sections 583.410– 583.430 must serve and file a notice of motion at least 45 days before the date set for hearing of the motion. The party may, with the memorandum, serve and file a declaration stating facts in support of the motion. The filing of the notice of motion must not preclude the opposing party from further prosecution of the case to bring it to trial. (Subd (a) amended effective January 1, 2009; previously amended effective January 1, 1986, and January 1, 2007.)
Rule 3.1342.Motion to dismiss for delay in prosecution
Division 11. Law and Motion · Chapter 6. Particular Motions · Article 3. Motions to Dismiss · Last amended 2009 · Last verified July 29, 2026
In one sentenceRule 3.1342 sets the briefing schedule for a motion to dismiss under Code of Civil Procedure sections 583.410 through 583.430 — a 45-day notice period, 15 days to oppose, 15 more to respond, and 5 days for a reply — and lists the diligence, complexity, and case-management factors the court must weigh before granting, denying, or conditioning dismissal.
Full Text of Rule 3.1342
(b) Written opposition Within 15 days after service of the notice of motion, the opposing party may serve and file a written opposition. The failure of the opposing party to serve and file a written opposition may be construed by the court as an admission that the motion is meritorious, and the court may grant the motion without a hearing on the merits. (Subd (b) amended effective January 1, 2007.)
(c) Response to opposition Within 15 days after service of the written opposition, if any, the moving party may serve and file a response. (Subd (c) amended effective January 1, 2007.)
(d) Reply Within five days after service of the response, if any, the opposing party may serve and file a reply.
(e) Relevant matters In ruling on the motion, the court must consider all matters relevant to a proper determination of the motion, including:
(1) The court’s file in the case and the declarations and supporting data submitted by the parties and, where applicable, the availability of the moving party and other essential parties for service of process;
(2) The diligence in seeking to effect service of process;
(3) The extent to which the parties engaged in any settlement negotiations or discussions;
(4) The diligence of the parties in pursuing discovery or other pretrial proceedings, including any extraordinary relief sought by either party;
(5) The nature and complexity of the case;
(6) The law applicable to the case, including the pendency of other litigation under a common set of facts or determinative of the legal or factual issues in the case;
(7) The nature of any extensions of time or other delay attributable to either party;
(8) The condition of the court’s calendar and the availability of an earlier trial date if the matter was ready for trial;
(9) Whether the interests of justice are best served by dismissal or trial of the case; and
(10) Any other fact or circumstance relevant to a fair determination of the issue. The court must be guided by the policies set forth in Code of Civil Procedure section 583.130. (Subd (e) amended effective January 1, 2007; previously amended effective January 1, 1986.)
(f) Court action The court may grant or deny the motion or, where the facts warrant, the court may continue or defer its ruling on the matter pending performance by either party of any conditions relating to trial or dismissal of the case that may be required by the court to effectuate substantial justice.
Plain-English Summary
Rule 3.1342 fills out the procedure for the same two-year discretionary dismissal that Rule 3.1340 authorizes, but from the angle of a motion the moving party files and briefs rather than a dismissal the court raises on its own. The moving party serves and files notice at least 45 days before the hearing, optionally backed by a declaration of supporting facts. Filing that motion does not freeze the case — the opposing party remains free to keep prosecuting it while the motion is pending.
A fixed briefing schedule follows: 15 days for the opposing party to file written opposition, another 15 days for the moving party to respond to that opposition, and 5 more days for the opposing party’s reply. Silence carries a real risk. If the opposing party never files written opposition, the court can treat that silence as an admission the motion has merit and grant it without holding a hearing on the substance.
When the court does weigh the motion, Rule 3.1342(e) directs it to look at the whole picture: the court file and supporting declarations, how diligently the parties pursued service and discovery, whether settlement talks were underway, the case’s complexity, related litigation, delays attributable to either side, the court’s calendar, and whether justice is better served by dismissal or by letting the case proceed — all guided by the policies in Code of Civil Procedure section 583.130. Rather than a binary grant-or-deny choice, the court can also continue or defer ruling while imposing conditions designed to move the case toward substantial justice.
Frequently Asked Questions
How much notice does a motion to dismiss for delay in prosecution require in California?
At least 45 days before the hearing date, under Rule 3.1342(a).
What happens if I do not oppose a motion to dismiss for delay in prosecution?
The court may treat the failure to file written opposition as an admission that the motion is meritorious and grant it without a hearing on the merits, under Rule 3.1342(b).
What deadlines apply after opposition is filed on a motion to dismiss for delay?
The moving party has 15 days to respond to the opposition, and the opposing party then has 5 days to file a reply, under Rule 3.1342(c) and (d).
What factors does a California court weigh on a motion to dismiss for delay in prosecution?
Rule 3.1342(e) lists diligence in service and discovery, settlement negotiations, case complexity, related litigation, delays attributable to either party, the court’s calendar, and the interests of justice, guided by the policies in Code of Civil Procedure section 583.130.
Must the court either grant or deny the motion outright?
No. Rule 3.1342(f) lets the court continue or defer ruling and impose conditions relating to trial or dismissal to achieve substantial justice.
Amendment History
Rule 3.1342 amended effective January 1, 2009; adopted as rule 373 effective January 1, 1984; previously amended effective January 1, 1986; previously amended and renumbered effective January 1, 2007.
Source & verification. Rule text is reproduced verbatim from
the Judicial Council of California. Adopted by the Judicial Council of California.
Last verified July 29, 2026.
· Official source
Also known as: motion to dismiss for delay in prosecution California45 day notice dismissal motion CaliforniaCCP 583.130 factors for dismissal