Judge Daniel M. Crowley, Case Number: 19STCV11404, Date: 2025-01-27 Tentative Ruling

All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter.  If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SMCDEPT71@lacourt.org. Do not click on the email address, either copy and paste it or type it into your email. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.

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Defendant Gregory Alan Foster (“Foster”) (“Defendant”) moves for summary judgment against Plaintiff Big Baller Brand LLC’s (“BBB LLC”) complaint. (Notice Motion, pgs. 1-2; C.C.P. §437c.)

Defendant filed the instant motion on November 14, 2024. Plaintiff filed its opposition on January 14, 2025. As of the date of this hearing no reply has been filed.

C.C.P. §437c(a)(2) provides, in part, “[n]otice 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 hearing.” (C.C.P. §437c(a)(2).) [1] Further, C.C.P. §437c(a)(3) provides, in part, “[t]he motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (C.C.P. §437c(a)(3), emphasis added.)

A motion that is not timely served is barred from consideration by the court. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 299.) A trial court has no power to change the notice and filing periods of section 437(c), and if a trial court shortens the time for notice to which a plaintiff is entitled, it commits a “due process violation and abuse of discretion.” (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) These minimum notice requirements are mandatory and cannot be shortened by the Court. (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764-765 & n.5 [noting the lack of discretionary language for the trial court to shorten the notice period for summary judgment or adjudication motions when compared to the general motion notice provision of C.C.P. §1005, which allows trial courts discretion to hear motions on shortened notice].)

A summary judgment or summary adjudication motion which is not properly noticed pursuant to C.C.P. §437c(a)(2) is properly disregarded. (Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 596.)

First, Defendant failed to serve Defendant in the manner required by C.C.P. §437c(a)(2). As evidenced by the Declaration of Kayla Lathan (“Lathan”), on November 15, 2024, at approximately 4:32 pm, an unnamed process server entered into Plaintiff’s counsel’s office and served the instant Motion on Plaintiff. (Decl. of Lathan ¶6, Exh. A.) Lathan’s declaration is supported by Plaintiff’s law firm’s visitor log. (Decl. of Lathan ¶6, Exh. A.) Plaintiff’s opposition objects to such shortened notice, and therefore, Plaintiff did not consent to the shortened period of service. (Opposition, pg. 6.) Plaintiff was only served 74 days prior to the hearing in violation of the 75-day minimum notice requirement set forth in C.C.P. §437c(a)(2); this Court cannot consider Defendant’s motion. (Hernandez, 112 Cal.App.4th at pg. 299.) Therefore, Defendant’s motion is procedurally defective under C.C.P. §437c(a)(2) and must be denied.

Second, Defendant failed to demonstrate good cause for hearing the instant motion less than 30 days before trial, which is set for February 3, 2025. Defendant did not obtain an order form this Court permitting him to be heard on this motion less than 30 days before trial. (C.C.P. §437c(a)(3); see also Robinson, 168 Cal.App.4th at pg. 1268 [stating court must find good cause before hearing on motion for summary judgment can be validly set within 30 days of trial].) Therefore, Defendant’s motion is procedurally defective under C.C.P. §437c(a)(3) and must be denied.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] The Court notes Defendant’s motion was filed before the amendment to C.C.P. §437c went into effect on January 1, 2025, which changed C.C.P. §437c(a)(2) to require “[n]otice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing.” (C.C.P. §437c(a)(2), emphasis added.) For the purposes of this motion, the Court refers to the language of the statute that was in effect when Defendant’s motion was filed on November 14, 2024.