MIDLAND FUNDING LLC vs JESUS GUTIERREZ

(Norwalk Courthouse: Dept. Y) August 28, 2026 DEPARTMENT Y LAW AND MOTION RULINGS

FUNDING LLC vs JESUS GUTIERREZ Tentative Ruling: Defendant Jesus Gutierrez's Motion to Dismiss for Failure to Serve Summons and Complaint Within Three Years ("Motion") was initially set for hearing on August 7, 2026. On its own motion, the Court continued the hearing on the Motion to August 27, 2026 to fully review the briefs filed by the parties and the cases cited therein, and to allow argument by the parties. In his Motion, Defendant requests dismissal of this action pursuant to Code of Civil Procedure Sec.Sec. 583.210 and 583.250 because Plaintiff failed to make valid service of the summons and complaint upon Defendant within three years after the action was commenced.

The Court has read and considered the moving papers filed by Defendant, including the attached exhibits, the Opposition filed by Plaintiff Midland Funding LLC ("Plaintiff") and the Reply filed by Defendant along with his supplemental declaration. The Court has also considered all relevant court records.

Procedural Background

Plaintiff filed this limited civil collections action on August 28, 2018. On September 12, 2018, Plaintiff filed a proof of substituted service stating that on September 10, 2018, the summons and complaint was left with "Stephanie Montes, RESIDENT," at 713 N. Gage Ave., Los Angeles, California 90063. The process server's declaration of reasonable diligence reported an occupant's statement that Defendant "does not live at given address, but receives & picks up mail." Default judgment was entered on March 29, 2019.

On June 4, 2026, the Court granted Defendant's motion to vacate the default judgment under Code of Civil Procedure Sec. 473(d) and Sec. 128, set aside the writ of execution issued on December 13, 2022, and granted Defendant 30 days to file a responsive pleading. On June 26, 2026, Defendant filed an Answer, and on the same date moved to dismiss under Code of Civil Procedure Sec.Sec. 583.210 and 583.250 for failure to serve within three years. Plaintiff filed and served its opposition on July 30, 2026.

Defendant filed a reply and supplemental declaration on July 31, 2026 and August 3, 2026, respectively. Summary of the Parties' Arguments Defendant argues dismissal of this action is mandatory because Plaintiff failed to effect valid service within three years of filing, and no exclusion under Code of Civil Procedure Sec. 583.240 applies. Defendant also objects that Plaintiff's opposition was untimely served and should be disregarded. Plaintiff contends the three’year period was tolled under Sec. 583.240(d) because, once substituted service was effected and default judgment entered, further service was impossible or impracticable.

Plaintiff emphasizes that no mail to the Gage Avenue address was returned and that the Court did not find a knowingly false or facially invalid proof of service when vacating the judgment. Defendant replies that Plaintiff's process server reported Defendant did not live at the Gage Avenue address; Plaintiff possessed conflicting address information; and section 583.240(d) excludes failures to discover relevant facts. Defendant further asserts the June 4, 2026 order did not validate the 2018 service or toll the statute and that his subsequent Answer does not waive dismissal.

Legal Standard

Under Code of Civil Procedure Sec. 583.210, the summons and complaint must be served within three years after the action is commenced. Under section 583.250, if service is not made within the prescribed time, the action shall be dismissed. The requirements are mandatory and not subject to extension except as provided by statute. Section 583.240 identifies limited periods excluded from the three’year calculation, including where service was impossible, impracticable, or futile due to causes beyond the plaintiff's control, but specifies that the failure to discover relevant facts or evidence is not beyond the plaintiff's control.

A motion under this chapter does not constitute a general appearance. C.C.P. Sec. 583.220(b). Further, a general appearance by a defendant after the three-year period specified in the statute has expired will not deprive him of his right, under the statute, to dismissal. Busching v. Superior Court (1974) 12 Cal.3d 44, 52-53.

Analysis

A. Timeliness of Plaintiff's Opposition Plaintiff's opposition is dated and served July 30, 2026, nine court’day service having fallen on July 27, 2026. Defendant objects under section 1005(b) and rule 3.1300(d) and asserts prejudice due to reduced time to reply. In the Court's discretion, the Court will consider Plaintiff's opposition and address the merits. B. Applicability Of Tolling As Set Forth In Code of Civil Procedure Section 583.240 Code of Civil Procedure Sec. 583.240 sets forth the four conditions which will cause a tolling of the three-year period for service of process as follows: "(a) The defendant was not amenable to the process of the court. (b) The prosecution of the action or proceedings in the action was stayed and the stay affected service. (c) The validity of service was the subject of litigation by the parties. (d) Service, for any other reason, was impossible, impracticable, or futile due to causes beyond the plaintiff's control.

Failure to discover relevant facts or evidence is not a cause beyond the plaintiff's control for the purpose of this subdivision. A plaintiff seeking to avoid dismissal must establish facts bringing the case within the statutory exception. Shipley v. Sugita (1996) 50 Cal.App.4th 320, 324. The exceptions are strictly construed against the plaintiff because service is ordinarily within the plaintiff's control. (Id. at 326-327) Plaintiff argues that once substituted service was effected and default judgment entered, additional service was impossible or impracticable citing Maguire v.

Collier (1975) 49 Cal.App.3d 309, 313 (" Maguire "). Plaintiff argues that the statute was tolled until service was later invalidated. Plaintiff also argues that the mail sent to the Gage Avenue address was not returned and asserts justifiable reliance on third’party statements regarding Defendant's receipt of mail at that address. Defendant counters that the process server's declaration expressly recorded an occupant's statement that Defendant did not live at the address; that Plaintiff's own records, including those attached to the Complaint, reflected a different address on the account statements, and that section 583.240(d) does not permit tolling for Plaintiff's own failure to discover relevant facts or evidence necessary for proper service.

Here, the first two exclusions are inapplicable. There is no claim that Defendant was "not amenable to process of the court" or that the action was stayed. Further, as discussed in Dale v. ITT Life Ins. Corp. (1989) 207 Cal.App.3d 495, 499 (" Dale "), Plaintiff does not gain any benefit from the exclusion of time during which the validity of service was being litigated since that occurred after the three-year period had expired. "A statutory period cannot be tolled ... after it has already run."

Id. at 499. The only possible exception to the rule of mandatory dismissal here is for time when service was "impracticable, impossible or futile." On this record, Plaintiff has not met its burden to establish that service was "impossible, impracticable, or futile due to causes beyond [its] control" for a period sufficient to bring service within three years. The process server's contemporaneous statement that Defendant did not live at the address, combined with other conflicting address information identified in Plaintiff's own records as attached to the Complaint, undercuts Plaintiff's assertion that reliance on the Gage Avenue address was beyond its control.

The fact that mailings were not returned, without more, does not establish that service impracticability arose from causes outside Plaintiff's control rather than from its chosen service approach. Further, the Court's June 4, 2026 order vacating judgment did not adjudicate the validity of the 2018 service for purposes of section 583.210 and does not itself supply tolling of the statute. The Court also notes that Plaintiff's reliance on Maguire, supra, is misplaced. Maguire addresses the former five-year rule for bringing a case to trial.

It did not decide whether a default judgment automatically tolls the separate three-year deadline for service of summons. As noted by Defendant, Dale considered the distinction and refused to transplant Maguire's five-year tolling rule into the service context. Dale held that a default and default judgment exclude time from the service period only if the claimed impracticability was caused by circumstances beyond the plaintiff's control. Here, Plaintiff bears the responsibility of his agent's failure to effect service of process.

Because the circumstances making service impracticable were within Plaintiff's control, there are no grounds for tolling the statutory period pursuant to section 583.240. C. Effect of Defendant's Answer Defendant filed an answer on June 26, 2026, after the three’year period had expired. He argues that this does not waive the right to seek dismissal under the statute. The Court agrees that the filing of a responsive pleading does not retroactively cure noncompliance with section 583.210.

Ruling Defendant's Motion to Dismiss for Failure to Serve Summons and Complaint Within Three Years is GRANTED. Plaintiff has failed to establish valid service within three years as required by Code of Civil Procedure Sec. 583.210, and no exclusion under Code of Civil Procedure Sec. 583.240 brings the case into compliance. The action is dismissed pursuant to Code of Civil Procedure Sec. 583.250. All dates are vacated. The clerk is directed to enter dismissal and give notice. Case Number: 25NWLC36722 Hearing Date: August 28, 2026 Dept: Y 25NWLC36722: BANK OF AMERICA, N.A. vs LISSET MARTINEZ OCAMPO Tentative Ruling: The Court has read and reviewed the moving papers filed by Defendant Lisset Martinez ("Defendant").

This Motion was initially set for hearing on July 31, 2026. Since it was unclear whether Defendant's Motion to Vacate Judgment ("Motion") had been served on Plaintiff Bank of America, N.A. ("Plaintiff"), the Court continued the Motion to August 28, 2026. The Court ordered Plaintiff to serve her Motion on Plaintiff and file proof of service. On July 31, 2026, Defendant filed Proof of Service of the Motion on Plaintiff. No opposition has been filed by Plaintiff. The Court notes that Default was entered by the Clerk on January 7, 2026.

The Court notes that Default Judgment was entered by the Clerk on January 9, 2026. Defendant's Motion to Vacate Judgment was filed on July 8, 2026. The Court notes that Proof of Service of Summons by a registered process server by substituted service was filed with the Court on November 14, 2025 creating a presumption of service under Evidence Code section 647. The proof service states that the Summons and Complaint was served on Alvero Martinez who identified himself as Defendant's parent. Defendant does not provide any facts to challenge service but states that she did have not actual notice of this action until July 6, 2026 when she made her "appearance at the Norwalk Courthouse on the specified court date July 6, 2026."

The Court notes that on June 27, 2025, it issued an Order to Show Cause Hearing/Case Management Review stated that Defendant was ordered to appear on July 6, 2026. The Court does not find that Defendant has rebutted the presumption of valid service. Nonetheless, pursuant to Code of Civil Procedure Sec. 473(b), "[t]he court may, upon any terms as may be just, relieve a party or the party's legal representative from a judgment, dismissal, order, or other proceeding taken against the party through the party's mistake, inadvertence, surprise, or excusable neglect."

Here, Defendant has stated that "she was not aware that [she] was to respond to the original complaint within the 30 day window required by law." She also stated that she did not know that the default judgment had been entered until she came to court on July 6, 2026 as ordered by the Court. As a result, Defendant "mistakenly believed" that she had until that time to respond to the Complaint and could do so by appearing in Court. Defendant filed this motion within the six-month window allowed by Code of Civil Procedure Sec. 473(b).

Therefore, pursuant to Code of Civil Procedure Sec. 473(b), and in the interests of justice, Defendant's Motion To Vacate Judgment is GRANTED. Defendant is granted 30 days leave to file a responsive pleading. The Court sets a further OSC Re Status of Responsive Pleading on May 28, 2027 at 8:30 a.m. in Department Y of the Norwalk Courthouse. Clerk to give notice. Case Number: 26NWLC19679 Hearing Date: August 28, 2026 Dept: Y 26NWLC19679: WELLS FARGO BANK, N.A. vs DOMINGO FLORES, AN INDIVIDUAL Tentative Ruling: The Court has read and considered the moving papers filed by Plaintiff Wells Fargo Bank N.A. ("Plaintiff"), including the declaration of counsel.

The Court finds that Plaintiff mailed Requests for Admission (RFA) to counsel for Defendant on May 13, 2026, and provided proof of service by mail. Plaintiff did not receive any responses from Defendant. Plaintiff mailed its Motion to Deem Requests for Admission Admitted to counsel Defendant on July 16, 2026, and provided proof of service by mail. The address for Defendant on both proofs of service match the address that is listed on the Answer. Having considered the moving papers, Plaintiff's Motion to Deem Requests for Admission Admitted is