Judge: Deborah C. Servino, Case: 30-2019-01104167, Date: 2022-09-16 Tentative Ruling
On September 14, 2022, Plaintiff belatedly filed an opposition to the motion. Plaintiff asserts that on September 9, 2022, she received the instant motion in an envelope addressed to her. (Ostrowski Decl., at ¶ 3.) Defendant filed a proof of service indicating that the motion was served by U.S. mail on Plaintiff’s address of record with the Court, on August 8, 2022, the same date that the instant motion was filed. Filing a proof of service that complies with statutory standards creates a rebuttable presumption that service was proper. (Floveyor Internat. Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Plaintiff has not adequately rebutted that presumption.
Plaintiff also states that defense counsel did not send a courtesy copy by email. (Ostrowski Decl., at ¶ 5.) However, as Plaintiff recognizes, defense counsel is not required to send her a copy by email and would only be doing so as a courtesy. Plaintiff is a self-represented litigant and has not affirmatively consented to electronic service. (Cal. Rules of Court, rule 2.251(c)(3); Orange County Superior Court Local Rule 352.) Because the opposition was served by mail on September 13, 2022 and no reply has been filed, the court exercises its discretion and declines to consider the opposition.
Defendant moves for judgment on the pleadings pursuant to Code of Civil Procedure section 438. (See Mot., at p. 1.) The motion is untimely. Unless the court orders otherwise, the statutory motion for judgment on the pleadings cannot be made after entry of a pretrial conference order or 30 days before the initial trial date (“the date the action is initially set for trial”), whichever is later. (Code Civ. Proc., § 438, subd. (e); Tung v. Chicago Title Co. (2021) 63 Cal.App.5th 734, 757.) Here, the initial jury trial was scheduled for December 7, 2020. (See 2/14/2020 Minute Order.) Even if the court construed the initial trial date as June 1, 2021 (the date the trial was continued due to the COVID-19 pandemic), the motion is still untimely. (See Not. of Continuance [ROA 28].)
Defendant shall give notice of the ruling.