Motion to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement
23CV011113: CAPITAL ONE, N.A. vs MARTINEZ 07/30/2026 Hearing on Motion to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement in Department 16D
Tentative Ruling
NOTICE:
Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:
To request limited oral argument, on any matter on this calendar, you must call the Department 16D Oral Argument Request Line at (916) 874-3056 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.
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The Department 16D Zoom Link is https://saccourt-cagov.zoomgov.com/j/16146506749 and the Zoom Meeting ID is 161 4650 6749. To appear on Zoom telephonically, call (833) 568-8864 and enter the Zoom Meeting ID referenced above. NO COURTCALL APPEARANCES WILL BE ACCEPTED.
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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the
23CV011113: CAPITAL ONE, N.A. vs MARTINEZ 07/30/2026 Hearing on Motion to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement in Department 16D
hearing, if not using a reporter from the Courts Approved Official Reporter Pro Tempore list.
Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporters Office and an official reporter will be provided.
Tentative Ruling:
Plaintiff Capital One, N.A.s (Plaintiff) motion to vacate dismissal and for entry of judgment under terms of the stipulated settlement is DROPPED for defective service.
On October 13, 2023, Plaintiff filed its Complaint thus initiating this action. On November 29, 2023, Plaintiff filed a proof of service indicating that Defendant Ray I. Martinez (Defendant) was served by substituted service on November 21, 2023 (November POS). The November POS more specifically indicates that the summons, complaint and other related documents were left at Defendants residence with a competent adult and that the documents were thereafter mailed to the same residence. The November POS lists the address where Defendant was served as 2923 Ottumwa Dr. Sacramento, CA 95835-1815.
Defendant did not file an answer or any responsive pleading. Rather, on January 2, 2024, Plaintiff filed a Stipulation Agreement (Stipulation). The Stipulation provides that Defendant agreed to pay $23,722.36 in monthly installments of $750.00, starting in December of 2023, until the judgment amount was paid in full. Defendant agreed that in the event of default Plaintiff would be entitled to judgment in the sum of $23,722.36 plus costs less amounts received. Defendant signed the Stipulation, but the Stipulation does not provide any alternate address for Defendant.
Nonetheless, the proof of service accompanying this motion indicates that the motion papers were mail served on an entirely new address: 8000 14th Ave Ste B, Sacramento, CA. Thus, the service address related to this motion varies from the address at which Defendant was originally served. Defendant has not provided an alternate address of record for the Court and Plaintiff has provided no evidence establish that the 8000 14th Ave address is a valid address for service.
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
23CV011113: CAPITAL ONE, N.A. vs MARTINEZ 07/30/2026 Hearing on Motion to Vacate Dismissal and Enter Judgment Under Terms of Stipulated Settlement in Department 16D
Additionally, no substantive opposition was filed which, if it had been filed, potentially could be construed as a waiver of defective notice. (Cf. Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion]; Reedy v. Bussell (2007) 148 Cal.App.4th 1272 [if the party appears at the appropriate hearing and opposes the motion on the merits but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived].) Thus, the Court finds no basis to find waiver of the defective service.
Defective service of notice deprives the Court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.) Therefore, Plaintiffs motion is dropped.