Judge: Audra Mori, Case: 19STCV24882, Date: 2023-02-01 Tentative Ruling

Case Number: 19STCV24882    Hearing Date: February 1, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Frederick Depalm (“Plaintiff”) filed this action against defendants Orleans & York, et al. for injuries Plaintiff sustained when his chair collapsed beneath him while he was eating at a restaurant.  Plaintiff’s operative First Amended Complaint alleges a single cause of action for negligence against defendants.  On April 19, 2021, Defendant Sami Othman (“Othman”), individually and dba Orleans & York Deli, filed a cross-complaint against Jobolyn Trading Group, Inc. dba Jobolyn Table Base Company (“JTG”) for comparative contribution, equitable indemnity, and declaratory relief.  Trial in this matter is currently set for April 14, 2022.

JTG now moves for summary judgment against Othman’s cross-complaint.  Othman opposes the motion, and JTG filed a reply. 

2. Motion for Summary Judgment

CCP § 437c(a)(2) requires that a motion for summary judgment be brought on 75 days' notice: “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.” 

With respect to the 75 days' notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. The Second District has considered whether trial courts may shorten this time and concluded: “we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.”  (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118; See Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764 [“the Legislature did not…authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute.”]; see also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596 [75 days’ notice language “is mandatory and the court has no discretion to shorten the time …”].) 

Moreover, “the notice requirement is measured from the date notice is served to the date of the actual hearing, and not the originally scheduled hearing.”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1209.)  “The purpose of the 75–day service requirement is to allow the parties time to prepare their opposition and replies and to prepare for the hearing.”  (Id. at 1208; see Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 169-70 [moving party must file a notice of hearing on the motion for summary judgment at least 75 days before the time appointed for hearing).]

In this case, 75 days before the February 1, 2023 hearing date was November 18, 2022.  JTG filed its motion for summary judgment on November 18, 2022, with the proof of service attached to the moving papers stating Othman and Plaintiff were served by the following means: “MESSENGER SERVICE: I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed set forth below and providing them to a professional messenger service for service. (A declaration by the messenger must accompany this proof of service.)”[1]  (Emphasis omitted.)  No messenger declaration was filed with the moving papers indicating when the motion was served on the parties.  On December 15, 2022, JTG filed proof of service of the motion showing the moving papers were personally served on Plaintiff on November 18, 2022, but personally served on the party opposing the motion, Othman, on November 21, 2022.  Accordingly, the motion was served on Othman only 72 days before the instant hearing.   

A party opposing a motion for summary judgment is entitled to 75 days’ notice to prepare for the hearing.  (CCP § 437c(a)(2); Lackner, 135 Cal.App.4th at 1208.)  As stated above, JTG is seeking summary judgment against Othman’s cross-complaint, but Othman was not given 75 days’ notice of the hearing, which is measured from the date notice of the subject hearing is served until the date of the actual hearing.  (Id. at 1209.) 

There is no evidence of any stipulation between the parties to shorten time, and it would be an abuse of discretion to, for example, continue the hearing date for less than 75 days to cure this defect.  (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 [Holding, in a case decided after Lackner, that 76-day notice given on mailed motion was invalid, such that at the noticed motion hearing, “the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew…The four-day continuance was a violation of due process and an abuse of discretion.”].)  There is otherwise no evidence showing Othman has waived the statutory notice requirement.  (See Urshan, 120 Cal.App.4th at 768 [“[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.”].) 

Based on the foregoing, the Court will not consider the motion at this time, as  sufficient statutory notice was not given.  However, if the parties appear at the hearing on the motion and stipulate that the Court may continue it for less than 75 days and decide it upon the briefing that has been done, the Court will consider doing so.  Otherwise, JTG’s motion for summary judgment will be taken off-calendar.

Cross-Defendant JTG is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 1^st day of February 2023