H.N. v. OSKOLKOFF

LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 4, 2026 TIME: 8:30 A.M.

No. 22CV01828

H.N. v. OSKOLKOFF

DEFENDANT NADIA OSKOLKOFF’S MOTION TO DISMISS

Defendant Nadia Oskolkoff’s motion to dismiss is granted.

“The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) There are only four bases for excluding time for service: if the defendant was not amenable to process, if the action was stayed and “the stay affected service,” if the validity of service was in dispute, or if it was impossible, impracticable or futile due to events beyond plaintiff’s control. (§ 583.240, subd. (a) – (d).)

“The three-year service requirement is ‘mandatory’ and is ‘not subject to extension, excuse, or exception except as expressly provided by statute.’ (Code of Civ. Proc., § 583.250, subd. (b); [citation].)” (State ex rel. Edelweiss Fund, LLC v. JP Morgan Chase & Co. (2020) 58 Cal.App.5th 1113, 1120.) “The time within which service must be made pursuant to this article does not apply if the defendant enters into a stipulation in writing or does another act that constitutes a general appearance in the action.” (§ 583.220.) “To prevent dismissal, any claimed general appearance must have occurred within the mandatory three-year period. An appearance made thereafter does not deprive a defendant of his right to dismissal.” (Brookview Condominium Owners’ Assn. v. Heltzer Enterprises-Brookview (1990) 218 Cal.App.3d 502, 509.)

Defendant Oskolkoff was named in the first amended complaint on February 7, 2023. She has never been served. Plaintiff insists defense counsel made general appearances on defendant’s behalf during the summary judgment proceedings because her name was included in defendant’s caption under “Attorneys for Defendants” on four documents and in a declaration from counsel Mark Davis.1 However, Ms. Oskolkoff was not a moving party in that motion for summary judgment, and she was not included in any other caption, nor represented by counsel in any case management statement. She has also never sought relief in any motion before the court except for this one. The court finds the inclusion of her name in four of the 17 documents filed by defendants in their summary judgment motion to be a scrivener’s error and not a general appearance.

1 The memorandum of points and authorities, the reply memorandum, objections to plaintiff’s evidence, and counsel’s declaration in support of defendants Scotts Valley Unified School District, Tanya Krause, Joshua Wahl and Meghann Gelter’s summary judgment motion.

LAW AND MOTION TENTATIVE RULINGS DATE: SEPTEMBER 4, 2026 TIME: 8:30 A.M.

The only way the mandatory dismissal provision does not apply is if plaintiff establishes that the stay during the appeal (from September 30, 2024 through February 20, 2026) affected service. (§ 583.240, subd. (b).) Here, the appellate stay did not affect service – Ms. Oskolkoff was not a moving party to the appealed summary judgment motion. The appeal had nothing to do with her as a party defendant. Therefore, service was required to be effected no later than February 9, 2026 (the next court day following February 7) and since none occurred, the first amended complaint as to her shall be dismissed without prejudice. (§ 581, subd. (h).)