Judge David A. Rosen, Case 21GDCV00925 2023-03-17 Tentative Ruling

Judge: David A. Rosen, Case: 21GDCV00925, Date: 2023-03-17 Tentative Ruling

Case Number: 21GDCV00925 Hearing Date: March 17, 2023 Dept: E

Hearing Date: 03/17/2023 – 2:00pm

Case No: 21GDCV00925
Trial Date: 04/24/2023

Case Name: JOANNE KIM, indiv; v. FOREST LAWN MEMORIAL-PARK ASSOCIATION, a California corporation

TENTATIVE RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Moving Party: Defendant, Forest Lawn

Responding Party: Plaintiff, Joanne Kim

Oppo and Reply submitted.

Moving Papers: Motion; Melkonian Declaration; Separate Statement; Yaralian Declaration

Opposition Papers: Opposition; Kim Declaration; Separate Statement; Kim’s Objections to Declarations of Melkonian, Yaralian, and Byrge; Myung Declaration

Reply Papers: Reply; Proposed Order; Defendant’s Evidentiary Objections to Plaintiff’s Opposition; Response to Plaintiff’s Separate Statement

RELIEF REQUESTED
Defendant, Forest Lawn Memorial-Park Association, moves the Court for an order granting its motion for summary judgment as to Plaintiff’s Second Amended Complaint (SAC) as follows:

1. Plaintiff’s causes of action for breach of contract and negligence are time barred by the applicable statute of limitations.

2. Plaintiff’s declaratory relief claim is barred by the doctrine of laches.

3. Plaintiff cannot raise any triable issue of material facts as to breach of contract.

The motion is made pursuant to CCP §437c.

ANALYSIS

75/80 Days

Under 437c(2), 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 hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days. (CCP §437c(a)(2).)

Here, the instant motion was served by email on February 13, 2023, and the hearing on the instant motion is set for March 17, 2023. Clearly, this motion is not timely based on the 75-day requirement.

However, Defendant believes this motion to be timely based on the “Stipulation to Shorten the Statutory Notice Period for Filling and Service of Defendant’s Motion for Summary Judgment/Adjudication” that was filed with the Court on January 11, 2023.

In relevant part, this Stipulation states:

3. In exchange for the accommodation, Plaintiff hereby stipulates to shorten the 75-day statutory notice of the motion and supporting papers to accommodate the delay in Plaintiff’s deposition. The deadline to file and serve the motion is now February 13, 2023.

4. The parties further agree that Plaintiff’s counsel will accept electronic service on February 13, 2023, in lieu of personal service for purposes of the MSJ only.

(Stipulation filed 1/11/2023.)

Here, the instant motion was served timely on February 13, 2023 via email as allowed by number 4 in the stipulation. However, the instant motion was not filed timely according to number 3 in the stipulation. The instant motion appears to be timely served, but it was not timely filed, as the file stamp noted by the Court on Defendant’s motion indicates the motion was filed on 02/14/2023. Therefore, this motion was not timely filed pursuant to the parties’ stipulation.

Defendant’s Reply arguments as to the motion being timely are unavailing.

Defendant argues that this motion is timely pursuant to CCP §2016.060. CCP §2016.060 states, “When the last day to perform or complete any act provided for in this title falls on a Saturday, Sunday, or holiday as specified in Section 10, the time limit is extended until the next court day closer to the trial date.” (Ibid.)

Defendant’s citation is inapposite, and its argument pertaining to CCP §2016.060 is thus unavailing. “This title may be cited as the “Civil Discovery Act.”” (CCP §2016.010.) “Sections 1011 and 1013 apply to any method of discovery or service of a motion provided for in this title.” (CCP §2016.050.) This motion for summary judgment is not a discovery motion. The citation provided by Defendant is not on point.

Defendant also cites CCP §1005(b) to argue that the 16 court day requirement of notice is applicable here. Defendant’s argument is unavailing. CCP §1005(a) explains the motions that are subject to the notice requirements of CCP §1005(b). A motion for summary judgment is not one of the motions listed under CCP §1005(a). The notice requirement for a motion for summary judgment is stated in CCP §437c(a)(2). However, Defendant does not rely on CCP §437c(a)(2) because the instant motion is clearly not served timely under that requirement as the instant motion was served on February 13, 2023. The stipulation provided for a manner and specific timing by which Defendant could shorten the 75-day requirement. However, Defendant did not comply with the stipulation that was signed by both parties. The stipulation provided that “[t]he deadline to file and serve the motion is now February 13, 2023.” Here, the motion was served on February 13, 2023; however, it was not filed on February 13, 2023. The motion was filed on February 14, 2023. Defendant’s motion is untimely according to the parties’ stipulation.

TENTATIVE RULING
Defendant’s motion for summary judgment is thus DENIED.

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (CCP §437c(q).) Here, the Court is not ruling on any objections.