Judge: Cherol J. Nellon, Case: 21STCV41999, Date: 2023-04-07 Tentative Ruling

Case Number: 21STCV41999    Hearing Date: April 7, 2023    Dept: 28

Defendant Mak Management, LLC’s Motion to Specially Set the Hearing Date on the Motion for Summary Judgment or to Continue the Trial Date.

Having considered the moving and responding papers, the Court rules as follows. 

BACKGROUND

On November 10, 2021, Plaintiff Rudy Pina (“Plaintiff”) filed this action against Defendants Mak Management, LLC (“Mak” or “Defendant”) and LAR Construction & Remodeling (“LAR”) for negligence and premises liability.

On January 5, 2022, Mak filed an answer and a Cross-Complaint against Cross-Defendant LAR for indemnity and contribution. On January 21, 2022, Mak filed the FACC. On November 2, 2022, LAR filed an answer.

On February 25, 2022, the Court dismissed LAR, without prejudice, pursuant to Plaintiff’s request.

On March 24, 2023, Mak filed the SACC.

On March 1, 2023, Mak filed a Motion to Specially Set the Hearing Date on the Motion for Summary Judgment or to Continue the Trial Date to be heard on March 29, 2023. The Court continued the hearing on the motion to April 7, 2023. On March 16, 2023, Plaintiff filed a response.

Trial is currently set for May 10, 2023.

PARTY’S REQUESTS

Mak requests the Court specially set the Motion for Summary Judgment to be heard on April 10, 2023, or continue trial to at least 30 days after the current hearing date.

Plaintiff requests the Court continue trial to September or October 2023.

LEGAL STANDARD

CRC rule 3.1332(b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Under CRC 3.1332(c), The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. CRC 3.1332(d).

CCP § 437c requires a Motion for Summary Judgment be made any time after 60 days have elapsed since the general appearance in the action. The motion shall be heard no later than 30 days before trial, unless the Court, for good cause, orders otherwise. Parties must serve notice of the motion and all supporting papers at least 75 days before the time appointed for hearing.

“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Wells Fargo Bank v. Superior Court (1989) 206 Cal.App.3d 918 [254 Cal.Rptr. 68].) Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion. (Ibid.)” Sentry Insurance Co. v. Superior Court (1989) 207 Cal.App.3rd 526, 529.

DISCUSSION

Trial is scheduled for May 10, 2023; in order for the MSJ or MSA to be heard prior to the current trial date, the MSA must be heard by April 10, 2023. In order for the MSA to be heard by that date, it needed to be served by January 25, 2023. January 25, 2023, was not a holiday or weekend, and thus the date stands as the required date of service. Mak did not serve the MSA until January 26, 2023. Additionally, Mak served the motion via electronic service—meaning that, under CCP § 1016(3)(b), the notice period is extended by two court days. Mak would have had to serve the motion by January 23, 2023. Mak failed to file a timely MSA. The Court will not grant a continuance or specially set a MSA based on an untimely MSA.

Plaintiff makes a separate request, based on Mak’s alleged failure to respond to discovery in a timely fashion. The Court notes that there are two upcoming Motions to Compel Further on calendar for April 17, 2023, approximately 20 days before the trial date. The Court grants a brief continuance so that parties may complete discovery prior to trial.

CONCLUSION

Defendant Mak Management, LLC’s Motion to Specially Set the Hearing Date on the Motion for Summary Judgment or to Continue the Trial Date is GRANTED. Trial is continued to June 12, 2023, at 1:30 p.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is May 30, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All discovery and related dates are set to trail the new trial date.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.