Judge: Audra Mori, Case: 21STCV43666, Date: 2023-02-28 Tentative Ruling

Case Number: 21STCV43666    Hearing Date: February 28, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff Sandy Marchand (“Plaintiff”) filed this action against Defendants State of California (the “State”) and City of Santa Monica (the “City”) alleging a single cause of action for dangerous condition of public property.  Plaintiff alleges that she came into contact with a “cracked and misleveled” pavement on the sidewalk that caused Plaintiff to trip and fall. 

On December 15, 2022, the City filed the instant motion seeking an order granting summary judgment in the City’s and the State’s favor against Plaintiff.[1]  Any opposition to the motion was due on or before February 14, 2023.  To date, no opposition has been filed. 

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 Court of Appeal 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].)

Additionally, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”  (CCP § 1010.6(a)(4)(B).) 

In this case, the City filed and electronically served the moving papers on the parties on December 15, 2022.   However, this was not timely.  75 days prior to the hearing was December 15, 2022, with an additional two court days to account for electronic service being December 13, 2022.  Accordingly, the City did not provide the required notice to Plaintiff before the instant hearing. 

A party opposing a motion for summary judgment is entitled to the full statutory notice period to prepare for the hearing.  (CCP § 437c(a)(2); Lackner, 135 Cal.App.4th at 1208.)  There is no evidence of any stipulation between the parties to shorten time, and it would be an abuse of discretion, for example, to 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 Plaintiff 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 cannot consider the motion, as sufficient statutory notice was not given.  The motion for summary judgment is taken off calendar. 

The City 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 28^th day of February 2023