NELSON vs DAMAVANDI CAPITAL, LLC, et al.

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 Reporter’s Office and an official reporter will be provided. *** NOTICE: EFFECTIVE APRIL 13, 2026, THIS DEPARTMENT HAS MOVED TO THE TANI G.

CANTIL-SAKAUYE COURTHOUSE LOCATED AT 500 G STREET IN SACRAMENTO, CA. ALL MOTIONS NOTICED FOR DEPARTMENT 53 WILL BE HEARD IN DEPARTMENT

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

16D OF THE NEW COURTHOUSE. ALL HEARINGS WILL TAKE PLACE AT THIS NEW LOCATION. PARTIES MAY CONTINUE TO APPEAR REMOTELY IN DEPARTMENT 16D UNLESS SPECIFICALLY ORDERED OTHERWISE. ***

TENTATIVE RULING

Although the original and amended notices of motion provided notice of this Court’s tentative ruling system, neither correctly refers to Local Rule 1.06 which relates to law & motion proceedings and specifies procedures different from Local Rule 2.47, which relates solely to Case Management Program calendars. Moving counsel is directed to contact opposing counsel forthwith and advise him/her of Local Rule 1.06 and the tentative ruling procedures set forth therein, along with the manner to request a hearing. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing in person, by Zoom or by telephone.

Plaintiff’s counsel failed to comply with CRC Rule 3.1113(f), requiring a memorandum that exceeds 10 pages to include both a table of contents and a table of authorities.

Defendant Landcare USA, LLC’s motion to dismiss plaintiff Nelson’s complaint is ruled upon as follows.

Factual Background

This personal injury arising from a slip/fall incident on 9/27/2021 was commenced on 8/14/2023 with a complaint alleging claims of premises liability and general negligence against several named defendants including “Land Care,” that latter of which is also referred to therein as “LandCare.” In March 2024, all named defendants other than “Land Care” filed an answer and in January 2025, these defendants filed a motion to compel compliance with their subpoena to a third party for records pertaining to plaintiff but this motion was ultimately dropped prior to hearing.

On 4/6/2026, plaintiff filed a “Doe Amendment” naming Landcare USA, LLC as Doe Defendant 1. On 4/21/2026, plaintiff filed a proof of service attesting to service of the summons & complaint on “LandCare” on 4/14/2026. On 4/28/2026, plaintiff filed another proof of service attesting to service of the summons & complaint on “LandCare USA, LLC/Doe 1” on 4/22/2026.

After the present motion to dismiss was filed on 5/14/2026, plaintiff filed another amendment to the complaint on 6/4/2026, asserting that defendant “Land Care” was incorrectly identified in the original complaint and stating that its correct name is actually “LandCare USA, LLC.” Then on 6/16/2026, plaintiff filed yet another proof of service attesting to service of the summons & complaint on “LandCare USA, LLC” on

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

6/11/2026.

This action has not yet been set for trial.

Moving Papers. This motion was originally filed on 5/14/2026 and according to the Amended Notice filed on 6/18/2026, defendant Landcare USA, LLC now moves to dismiss plaintiff Nelson’s complaint “based on Plaintiff’s failure to timely serve the Complaint” and is brought “pursuant to Code of Civil Procedure sections 583.410, 583.420 and Cal. Rules of Court, rule 3.1340 on the ground that despite Plaintiffs’ [sic] knowledge and awareness of Defendant’s identity and location, Plaintiffs [sic] failed to comply with California Rules of Court, Rule 3.110 by serving the Complaint within 60 days after its filing, and instead did nothing to effectuate service until April of this year, almost three years after its filing on August 14, 2023.” (Am.

Not., p.1:22-p.2:1.) However, the moving points & authorities actually concede plaintiff “appears to have narrowly avoided the three-year mandatory dismissal deadline of Code of Civil Procedure section 583.210(a)” but then contend this “does not insulate this action from discretionary dismissal under section 583.420(a)(1).” (Mov. MPA, p.3:16-18.) Moving defendant proceeds to assert that “[t]he statute expressly authorizes dismissal where service is not made within two years after commencement of the action” and “every relevant factor [in Rule 3.1342] weighs in favor of dismissal: Plaintiff was non-diligent in effecting service; the delay is attributable solely to Plaintiff; the case is not complex; no settlement discussions or discovery have occurred between Plaintiff and LandCare; and the interests of justice plainly disfavor allowing a plaintiff to sit on an originally named defendant for nearly three years and then proceed as though no delay occurred.” (Id., at p.3:18-25.)

Opposition. Plaintiff opposes, arguing that she “had no knowledge or awareness of Defendants’ [sic] true name, capacity and location at the time the subject complaint was filed and only after conducting discovery with the other named defendants was motioning Defendants’ [sic] true name, capacity and location discovered” and “[a]s a result, Plaintiff was unable to comply with California Rules of Court, Rule 3.110 and serve the Complaint within 60 days after its filing, as proper DOE amendments and name changed amendments could only be filed and served once motioning Defendants’ [sic] true name, capacity, and location was determined.” (Opp., p.2:1-7.)

The opposition also explains that plaintiff’s own counsel suffered multiple serious injuries in a motor vehicle accident, causing numerous complications and requiring several medical procedures all of which contributed to an unusual, unanticipated delay in the prosecution of this cause. The opposition adds that while this motion seeks dismissal based on plaintiff’s failure to diligently prosecute this action, such characterization “is not accurate or fair” and plaintiff has “[c]learly complied with the three year mandatory time limit” for serving all defendants. (Id., at p.6:8-24.)

Still, plaintiff concedes that compliance with this three-year period does not preclude “discretionary dismissal under

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

section 583.420” but contends the various factors identified in CRC Rule 3.1342(e) uniformly weigh against such a dismissal in this case. (Id., at p.6:25-p.7:13; see also, p.10:10-p.14:19.)

Reply. According to the reply, the opposition “does not provide substantial evidence to justify the unreasonable delay in effectuating service on Landcare [sic]” and “[p]laintiffs [sic] failed to comply with California Rules of Court, Rule 3.110 by serving the Complaint within 60 days after its filing, and instead did nothing to effectuate service until April of this year, almost three years after its filing on August 14, 2023.” (Reply, p.1:21-26.) Moving defendant then insists that “[p]laintiffs’ [sic] claim that they [sic] were unable to identify Landcare for nearly three years is unfounded” and that “[p]laintiffs’ [sic] delayed Doe Amendment is not an appropriate remedy for the unreasonable delay in service.” (Id., at p.2:1-p.4:18.)

The reply concludes by reiterating that moving defendant was not served with the summons & complaint within two years and then summarily asserting without any discussion that “every factor enumerated in [CRC Rule 3.1342(e)] weighs in favor of dismissal.” (Id., at p.4:22-26.)

Discussion

At the outset, the Court finds that consistent with the original 5/14/2026 Notice of Motion, the 6/18/2026 Amended Notice states that defendant Landcare USA, LLC is moving to dismiss plaintiff Nelson’s complaint “based on [her] failure to timely serve the Complaint.” (Am. Not., p.1:22-24.) While the Amended Notice adds that plaintiff failed to serve the complaint on all defendants within 60 days of filing as specified in CRC Rule 3.110, this particular Rule of Court does not in and of itself mandate or even authorize dismissal of any action or party in the event the summons & complaint are not served within 60 days.

Moreover, as conceded by the moving papers, Code of Civil Procedure §583.210(a) sets a three-year limit within which the summons & complaint must be served but only when a plaintiff fails to comply with this three-year limit does dismissal actually become authorized under the express language of §583.250(a).

Given that moving defendant has admitted plaintiff did not run afoul of Code of Civil Procedure §583.210(a)’s three-year period for service of the summons & complaint (see, Mov. MPA, p.3:16-17) and that dismissal based on a failure to timely serve the summons & complaint is therefore not authorized under §583.250(a), it remains unclear why this motion is premised on plaintiff Nelson’s purported “failure to timely serve the Complaint” as indicated in the original and Amended Notice. Nevertheless, to the extent this motion to dismiss is according to both the original and Amended Notice of Motion expressly “based on Plaintiff’s failure to timely serve the Complaint,” this motion to dismiss shall be denied since (1) an action is not subject to dismissal under §583.250 based on a failure to timely serve the summons & complaint unless such service was not completed within the three-year period specified in §583.210(a) and (2) moving

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

defendant concedes that it was served less than three years after this action was commenced on 8/14/2023.

In light of the foregoing, the Court need not proceed further but it nevertheless does so in order to address the additional arguments advanced in the moving points & authorities which are more accurately characterized as seeking dismissal of the entirety of this action based on plaintiff’s alleged failure to timely prosecute this action, a ground which for unknown reasons was not actually set forth in either the original or the Amended Notice of Motion.

First, Code of Civil Procedure §583.410 provides in its entirety:

(a) The court may in its discretion dismiss an action for delay in prosecution pursuant to this article on its own motion or on motion of the defendant if to do so appears to the court appropriate under the circumstances of the case. (b) Dismissal shall be pursuant to the procedure and in accordance with the criteria prescribed by rules adopted by the Judicial Council.

However, §583.420 then clarifies that a “court may not dismiss an action pursuant to this article for delay in prosecution” unless at least “one of the following conditions has occurred,” with the first being that “[s]ervice is not made within two years after the action is commenced against the defendant.

Additionally, CRC Rule 3.1340(a) states a court may on its own motion or on motion of the defendant dismiss an action under Code of Civil Procedure §§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, while Rule 3.1342(e) expressly requires a court ruling on a motion to dismiss for a delay in prosecution to “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

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

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.

Notably, plaintiff’s opposition concedes that this action remains subject to “discretionary dismissal under section 583.420” insofar as service on the moving defendant was not completed within two years before arguing that the above-cited factors identified in CRC Rule 3.1342(e) weigh against such a discretionary dismissal in this case. (Opp., p.6:25- p.7:5; see also, p.10:10-p.14:19.) Based on the express language of Rule 3.1342(e), this Court must now consider each of these factors in order to determine whether or not this case should subject to a discretionary dismissal pursuant to §583.410(a).

The first two factors of Rule 3.1342(e) generally pertain to service on the named defendants and plaintiff’s diligence in effecting service of process on them. Based on the Court’s file and the present record, there is no challenge to the timeliness of the service on any of the defendants named in the original complaint other than “LandCare” and the fact that these named defendants other than “LandCare” answered the complaint in early 2024 tends to show that plaintiff was reasonably diligent in serving such defendants.

While it is undisputed that service was not effected on “LandCare” and “Landcare USA, LLC” until April 2026 and plaintiff certainly could have effected service on one or both of these defendants much earlier than April 2026, this Court is on the present record unable to conclude that plaintiff failed to exercise reasonable diligence in this regard given (1) the dearth of information plaintiff actually had on “LandCare” and its potential contributory role in the underlying injury and (2) the various injuries, surgeries and/or complications plaintiff’s attorney experienced as a result of a motor vehicle accident.

Although the reply is correct that plaintiff’s counsel could have substituted out the case at that time, this Court is not persuaded that counsel was obliged to do so or that his failure to do so is necessarily fatal to the client’s case given that service was nevertheless completed well within the mandatory three-year period found in Code of Civil Procedure §583.210(a). In the end, because plaintiff was reasonably diligent in pursuing and serving all but one of the defendants named in the original complaint but appears to have been less diligent in serving defendant “LandCare” shortly before the three-year period expired, this Court finds that these first two factors of Rule 3.1342(e) generally do not weigh in favor of a discretionary dismissal of this action.

The third factor requires consideration of the extent to which the parties engaged in any

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

settlement discussions. Although the recent service on “LandCare” and “Landcare USA, LLC” and the pendency of the instant motion limit the opportunity for plaintiff to engage in any meaningful settlement negotiations with such defendants, the opposition represents that a mediation with the other named defendants has already taken place. Consequently, this factor does not tend to support a discretionary dismissal of this action.

The fourth factor asks whether the parties have been diligent in pursuit of discovery and other pretrial proceedings. Again, the opposition indicates that plaintiff has propounded a variety of discovery directed at all named defendants other than “LandCare/Landcare USA, LLC” and has responded to various discovery requests from such defendants other than “LandCare/Landcare USA, LLC. Thus, this factor indicates reasonable diligence in the prosecution of this action and does not weigh in favor of a discretionary dismissal of this action.

The fifth factor involves consideration of the nature and complexity of this case. While the parties have provided little information pertinent to this issue, the nature of this slip/fall case does not appear to be unusually complex but the present record indicates there will likely be a variety of disputed issues impacting liability and/or apportionment thereof which, in turn, will likely necessitate further discovery, investigation and/or settlement discussions. As such, this Court finds it would not be appropriate at this juncture to grant a discretionary dismissal of this action.

The sixth factor does not appear particularly relevant to this case and thus, neither weighs in favor of nor against dismissal of this action.

The seventh factor requires consideration of “any extensions of time or other delay attributable to either party” and aside from plaintiff’s delay in serving defendants “LandCare” and/or “Landcare USA, LLC” which was already addressed above in connection with the first two factors, the Court finds that this factor does not add any weight in favor of a discretionary dismissal of this action.

The eighth factor relates to the Court’s calendar and the availability of a trial date if this matter were ready for trial. It does not appear this case is ready for trial but the Court currently finds no reason why it will not be ready for trial within the mandatory five-year period and no reason why plaintiff cannot secure a trial date prior to the expiration of this five-year period on 8/14/2028. As such, this factor does not weigh in favor of a discretionary dismissal of this action.

The next factor requires the Court to consider whether the interests of justice are best served by dismissal or trial of the case. While the moving papers suggest dismissal is warranted given plaintiff’s delay in serving defendants “LandCare” and/or “Landcare

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV006691: NELSON vs DAMAVANDI CAPITAL, LLC, et al. 08/04/2026 Hearing on Motion to Dismiss in Department 16D

USA, LLC,” the fact remains that these defendants were in fact served well within the three-year time period set forth in Code of Civil Procedure §583.210(a) and California law broadly favors disposition of cases on their merits rather than on procedural grounds such as a motion to dismiss for failure to prosecute with reasonable diligence. (See, e.g., San Bernardino City Unified Sch. Dist. v. Superior Court (1987) 190 Cal.App.3d 233, 240.) Accordingly, on balance, this ninth factor also weighs against a discretionary dismissal of this action.

The final factor of Rule 3.1342(e) involves consideration of any other fact or circumstance relevant to a fair determination of this motion but this Court does not find any relevant fact or circumstance which has not already been taken into account. In the end, based on the foregoing, the Court finds that the weight of the foregoing factors militates against a discretionary dismissal of this action and favors plaintiff’s right to continue prosecution of her claims against the various defendants.

Disposition

For the reasons explained above, the present motion to dismiss is DENIED in its entirety.

Moving defendant to provide notice of this ruling and file proof of service of same within five (5) court days.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)