Soraya Maria Rigor vs. Estate of Leo Charles Curry

34-2020-00285047-CU-MC-GDS: Soraya Maria Rigor vs. Estate of Leo Charles Curry 12/31/2024 Hearing on Motion to Dismiss for Failure to Serve in Department 53

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 Law and Motion Oral Argument Request Line at (916) 874-2615 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.

Unless ordered to appear in person by the Court, parties may appear remotely either telephonically or by video conference via the Zoom video/audio conference platform with notice to the Court and all other parties in accordance with Code of Civil Procedure §367.75. Although remote participation is not required, the Court will presume all parties are appearing remotely for non-evidentiary civil hearings. The Department 53/54 Zoom Link is https://saccourt-cagov.zoomgov.com/my/sscdept53.54 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.

Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government code §68086 and California Rules of Court, Rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.pdf.

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 hearing, if not using a reporter from the Court’s 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

34-2020-00285047-CU-MC-GDS: Soraya Maria Rigor vs. Estate of Leo Charles Curry 12/31/2024 Hearing on Motion to Dismiss for Failure to Serve in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENATIVE RULING:

Specially appearing Defendant CitiMortgage, Inc.’s (“Defendant”) motion to dismiss for failure to serve is ruled upon as follows.

The notice of motion includes an incorrect address for the hearing. The address for Department 53 of the Sacramento Superior Court is 813 6th Street, Sacramento, California 95814.

Plaintiff Soraya Rigor (“Plaintiff”) commenced the instant action on September 8, 2020. Plaintiff first named “Citibank Mortgage Company” in her first amended complaint (“1AC”) filed on May 24, 2021. Defendant’s representatives aver that Plaintiff has not served Defendant with any complaint since the inception of this action. (Declarations of Jeremy B. Freedman (“Freedman Decl.”) ¶2 and Karen Hartmann (“Hartmann Decl.”) ¶4.)

Defendant now moves for both mandatory and discretionary dismissal of this action against it for failure to serve within the requisite time period pursuant to Code of Civil Procedure section 583.210 et seq. and 583.410 et seq. Plaintiff opposes.

Code of Civil Procedure section 583.210, subdivision (b) requires that the summons and complaint must be served on a defendant within three years after the action is commenced against them. Section 583.250 provides in its entirety:

(a) If service is not made in an action within the time prescribed in this article: (1) The action shall not be further prosecuted and no further proceedings shall be held in the action. (2) The action shall be dismissed by the court on its own motion or on motion of any person interested in the action, whether named as a party or not, after notice to the parties. (b) The requirements of this article are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute.

As noted above, this action was commenced by Plaintiff on September 8, 2020, she was required to serve Defendant no later than September 8, 2023. Additionally, even if this action were deemed commenced against Defendant at the time she filed the 1AC on May 24, 2021, Plaintiff was obligated to serve Defendant with the summons and complaint no later than May 24, 2024.

Plaintiff filed a “response” to the instant motion. As best the Court can discern, Plaintiff provides the following arguments in opposition: (1) Defendant Nationstar Mortgage filed a “counterclaim” on February 2, 2022 which shows Plaintiff served a summons and complaint and lis

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00285047-CU-MC-GDS: Soraya Maria Rigor vs. Estate of Leo Charles Curry 12/31/2024 Hearing on Motion to Dismiss for Failure to Serve in Department 53

pendens; (2) multiple proofs of service in the register of action shows regular and certified mail of various documents throughout this litigation; (3) and Defendant violated various statutory provisions as alleged in her complaints.

Plaintiff’s arguments are unavailing.

First, Nationstar Mortgage is a separate entity. Service on it has no bearing on whether Defendant CitiMortgage was properly served.

Second, mail service on a corporation is not valid service unless delivered pursuant to Code of Civil Procedure section 415.40 to one of the persons identified under Code of Civil Procedure section 416.10. In Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, the plaintiff mailed a copy of the summons and complaint, return receipt requested to a defendant at an address in Oregon. (Id. at 1432.) After no responsive pleading was filed, the plaintiff sought default judgment against the defendant. (Ibid.)

The defendant specially appeared and moved to dismiss the action against it pursuant to Section 538.210 “on the ground that the attempted service by mail was invalid, that no valid service had been accomplished, and that over three years had elapsed since the action as commenced.” (Id. at 1433.) The trial court granted the motion, and the plaintiff appealed. (Ibid.) The Fourth District held that the plaintiff bears the burden of establishing compliance with the statutory requirements and that the plaintiff had not done so when it “mailed the summons directly to the corporate defendant rather than to any of the statutorily described persons to be served.” (Id. at 1434.)

Upon review of the register of actions, as well as the documents attached to Plaintiff’s “response,” there is no evidence that Plaintiff served any of the persons designated for service of process pursuant to Section 416.10 at their appropriate location. Plaintiff appears to have mailed multiple complaints to Defendant’s Missouri headquarters, attention “Melanie Lockyer, Attorney.” The proofs of service do not name any of the designated persons under Section 416.10. There is also no indication that Melanie Lockyer is such a designated person.

As the Court in Dill noted, Plaintiff bears the burden of establishing that she served one of the designated persons. Accordingly, Plaintiff has failed to establish valid service of the summons and complaint. (Id. at 1433 [“Only a valid service complies with the requirement of section 583.210 that the summons and complaint be served within three years”].)

Plaintiff’s final contention that Defendant violated various statutory provisions as alleged in her complaint is immaterial to whether Plaintiff properly served Defendant within the requisite threeyear period. The Court disregards Defendant’s arguments on reply regarding prejudice and the statute of limitations as they are irrelevant to whether dismissal is proper under the mandatory provisions of Code of Civil Procedure 583.210 et seq.

Based on the evidence before the Court, Defendant is entitled to mandatory dismissal. Defendant’s motion is therefore GRANTED.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2020-00285047-CU-MC-GDS: Soraya Maria Rigor vs. Estate of Leo Charles Curry 12/31/2024 Hearing on Motion to Dismiss for Failure to Serve in Department 53

As the Court has granted Defendant’s motion under the mandatory provisions of Code of Civil Procedure section 583, it does not address dismissal under the discretionary provisions.

The Court notes that Plaintiff filed a "declaration" on December 23, 2024 in support of her "response," which was initially filed on November 21, 2024. The Court does not consider this declaration as it was not timely filed pursuant to Code of Civil Procedure section 1005, subdivision (b) and because it was filed after Defendant filed its reply papers. To the extent that the declaration is intended to be a "sur-reply," Plaintiff has not requested and the Court did not approve any further briefing.

The Court shall sign the proposed order filed with Defendant’s moving papers.