Judge: Craig Griffin, Case: "Buchanan v. Charter Communications, Inc.", Date: 2022-10-10 Tentative Ruling
Defendant Charter Communications, LLC’s, erroneously sued as Charter Communications, Inc., motion for summary judgment or, in the alternative, summary adjudication against Plaintiff Debra Buchanan is DENIED.
The court notes the following procedural history:
On January 19, 2021, Plaintiff filed a complaint against Defendant Charter Communications, Inc. for (1) sexual battery; (2) violations of the Ralph Act; (3) violations of the Bane Act; (4) sexual harassment in a defined relationship; (5) gender violence; (6) violations of the unfair competition law; (7) negligent hiring, training, supervision, and retention; (8) negligence; and (9) intentional infliction of emotional distress. [ROA 106]
On January 19, 2021, Plaintiff filed an amendment to the complaint to name Mario Perez in place of Doe 1. [ROA 9]
On March 11, 2021, Defendant Charter demurred to the 1st-5th, 7th, and 9th causes of action, and moved to strike certain portions of the complaint. [ROA 30, 35] Defendant Perez separately demurred to the 3rd, 4th, and 6th causes of action. [ROA 34]
On April 26, 2021, the court sustained, with leave to amend, Defendant Charter’s demurrer to the 1st-3rd, 7th, and 9th causes of action. It sustained, without leave to amend, the demurrer to the 4th and 5th causes of action. [ROA 91] It granted portions of Defendant Charter’s motion to strike, with leave to amend. [Id.] It sustained, with leave to amend, Defendant Perez’s demurrer to the 3rd and 6th causes of action, and sustained, without leave to amend, his demurrer to the 4th cause of action. [Id.]
On May 11, 2021, Plaintiff filed a First Amended Complaint (“FAC”) for: (1) sexual battery; (2) violations of the Ralph Act; (3) violations of the Bane Act; (4) gender violence; (5) violations of the unfair competition law; (6) negligent hiring, training, supervision, and retention; (7) negligence; and (8) intentional infliction of emotional distress. [ROA 106]
On June 8, 2021, Defendants filed an ex parte application for an extension of time to file and serve its answer to the FAC. [ROA 114] Defendants stated that the parties met and conferred regarding the FAC’s deficiencies and Plaintiff expressed an intent to prepare a Second Amended Complaint (“SAC”). [Id.] The court granted the extension of time on June 14, 2021. [ROA 118]
Thereafter, Defendants filed three more ex parte applications for an extension of time to file and serve its answer based on the same ground as the first ex parte application. [ROA 122, 126, 130] The court granted all the applications. [ROA 124, 128, 132]
On November 17, 2021, the parties submitted a proposed stipulation and order to grant Plaintiff leave to file a SAC. [ROA 140] On November 19, 2021, the court signed the order and wrote that Plaintiff had to file the SAC “within 5 days of this order.” [ROA 142] That same day, at the case management conference, the court set the trial date for November 14, 2022. [ROA 146]
There is nothing on the docket to show that Plaintiff filed the SAC. However, it appears Plaintiff attempted to file a SAC on July 27, 2022, some eight months after the deadline imposed by the Court. The Clerk of the Court property rejected the attempted filing.
Neither Defendant has filed an answer to the FAC.
On July 27, 2022, Defendant Charter filed the instant motion for summary judgment/adjudication. [ROA 204]
The motion is denied for the following reasons:
One, Defendant Charter’s proof of service of the notice of motion and motion [ROA 202] is insufficient.
A party moving for summary judgment must give 75 days’ notice of the motion. (Code Civ. Proc., § 437c, subd. (a)(2).) The instant summary judgment motion is set exactly 75 days from July 27, 2022. In order to give sufficient notice, Defendant Charter was required to personally serve the motion on Plaintiff.
Code of Civil Procedure section 1101 permits personal service of notices and papers. The Judicial Council proof of service – civil form, which references Code of Civil Procedure section 1011, sets forth two ways to personally serve documents. (Cal. Jud. Council Form POS-040 [Rev. January 1, 2020].) One is personal service, in which the signator of the proof of service attests to personally delivering the documents. (Ibid.) The other is by messenger service, which requires a signature of the person delivering the documents to the messenger service and a declaration signed by the messenger. (Ibid; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 9:85.1-9:85.2 [use a messenger to personally serve documents on opposing counsel or parties requires proof of service by the messenger; a declaration signed by a secretary who gave the papers to the messenger is hearsay and not sufficient].)
Here, the proof of service does not demonstrate proof of personal service or service on July 27, 2022, on Plaintiff. It only shows that the “Susan Marriott” gave the notice of motion and supporting papers to a messenger service on July 27, 2022. There is no declaration of personal service by the messenger.
Two, even if the notice of motion and motion were properly served, the motion is procedurally defective.
Defendant Charter’s notice of motion for its summary judgment motion seeks summary judgment in its favor “on the Complaint.” [ROA 204, p. 1] However, the points and authorities argue that Plaintiff cannot establish the elements of those causes of action in “the Second Amended Complaint.” [Id., p. 9] Defendant Charter later refers to the stipulation for Plaintiff to file the Second Amended Complaint and states that its are: “(1) sexual battery; (2) violation of the Ralph Act; (4) violation of Unfair Competition Law; (5) negligent hiring, training, supervision, and retention; (6) negligence; and (7) intentional infliction of emotional distress.” [Id., p. 12-13] The conclusion of the points and authorities reverts back to granting the motion on “the Complaint.” [Id., p. 28]
The notice of motion must state “the grounds upon which it will be made, and the papers, if any, upon which it is to be based.” (Code Civ. Proc., § 1010; Rules of Court, rule 3.110(a) [notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order].) Defendant Charter’s notice of motion seeks summary judgment or summary adjudication on either the complaint or the Second Amended Complaint, neither of which are the operative complaint in the action, which is the FAC.
Lastly, because neither Defendant has answered the FAC, this matter is not at issue. As such, the trial date of November 14, 2022 is VACATED. The parties are ordered to appear at a case management conference on January 5, 2022, at 9:30 a.m. at which time a new trial date will be given if the matter is then at issue.
Clerk to give notice of ruling.