Judge: Audra Mori, Case: 21STCV29442, Date: 2022-12-12 Tentative Ruling

Case Number: 21STCV29442    Hearing Date: December 12, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Jizela Embrahimian (“Plaintiff”) filed this action against Defendant B & V Enterprises, Inc. (“Defendant”), erroneously sued as Super King Markets, for damages relating to Plaintiff’s slip and fall in Defendant’s store.  The complaint alleges causes of action for premises liability and general negligence against Defendant. 

At this time, Defendant moves for summary judgment as to Plaintiff’s complaint.  No opposition has been received. 

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).]

Here, Defendant served its motion for summary judgment by mail and electronic service on Plaintiff on August 31, 2022, initially setting it for hearing for August 18, 2023.  This initially complied with the 75-day notice requirement for a summary judgment motion.  However, on October 10, 2022, Defendant filed and electronically served notice on Plaintiff that Defendant was advancing the hearing date on its motion for summary judgment to December 12, 2022.   75 days prior to December 12, 2022, was September 28, 2022, with two additional court days to account for electronic service being September 26, 2022.  (CCP § 12c(a)-(b) [“Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the date of the hearing as provided by Section 12.”].)  Accordingly, Defendant’s notice that the motion for summary judgment had been advanced for hearing did not give Plaintiff 75 days’ notice of the hearing date when Defendant filed the notice on October 10, 2022. 

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.)  While Defendant originally served its motion on August 31, 2022, the 75-day notice period is measured from the date notice of the subject hearing is served until the date of the actual hearing.  (Id. at 1209.)  When Defendant advanced the hearing date and gave notice of such to Plaintiff on October 10, 2022, Defendant reduced Plaintiff’s statutory notice period by 12 days, not including the additional time required for electronic service.  Until notice was served that the motion for summary judgment was being advanced, Plaintiff need not have started preparing for it to be heard by December 12, 2022.  Defendant, therefore, failed to preserve the strict 75-day notice requirement set forth in CCP § 437c(a) when it advanced the hearing date to December 12, 2022, and served electronic notice of such on October 10, 2022. 

            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.”].)  Further, there is otherwise no evidence showing Plaintiff has waived the statutory notice requirement. 

            The hearing on the motion is continued 90 days to _________________.  Defendant must file and serve notice of the continuance.  Any opposition and reply are due pursuant to Code.  The Final Status Conference and Trial in this matter are continued for at least 30 days after the hearing on the motion for summary judgment, with the discovery and motion cutoffs following the new trial date.  The new FSC Date is ___________ at 10:00 a.m., and the new trial date is _________ at 8:30 a.m. 

Defendant 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 12^th day of December 2022