Motion To Vacate Dismissal
Matter on the Law & Motion / Discovery calendar for Monday, September 22, 2025, Line 1. PLAINTIFF STEPHEN RUSSELL's Motion To Vacate Dismissal.
The unopposed motion to vacate dismissal by plaintiff Stephen Russell is denied.
On May 14, 2025, this court issued an order to show cause (OSC) to Russell why his case should not be dismissed pursuant to Code of Civil Procedure, sections 583.210 and 583.250. These statutes provide that a "summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant" (id., section 583.210, subd. (a)), and that if service is not made within the prescribed time, "[t]he action shall be dismissed by the court on its own motion" (id., section 583.250, subd. (a)(2).) The OSC also noted that Russell had not complied with the court's orders to pay sanctions. Russell did not file a response to the OSC.
On August 5, 2025, the court dismissed the action pursuant to the latter statute, and pursuant to Government Code, section 28608, subdivision (b), which provides that " [j]udges shall have all the powers to impose sanctions authorized by law, including the power to dismiss actions or strike pleadings, if it appears that less severe sanctions would not be effective after taking into account the effect of previous sanctions or previous lack of compliance in the case."
Russell now seeks to vacate the dismissal and reinstate this action. Russell contends as reasons for vacatur that (1) there has been interference in this case by non-party Stephen Walsh, and (2) there have been issues at his Nevada home that have made mail receipt unreliable.
The court concludes that neither provides a basis for relief under Code of Civil Procedure, section 473, subdivision (b). This subdivision provides that "[t]he court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." Russell makes general statements about why he did not respond to the court's OSC but does not provide evidence that any of the statutory exceptions (found in Code of Civil Procedure section 583.240) to the three-year service deadline is present. Russell therefore has not shown that dismissal was improper.
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