Judge: Deirdre Hill, Case: 22TRCV00147, Date: 2023-01-12 Tentative Ruling

Case Number: 22TRCV00147    Hearing Date: January 12, 2023    Dept: M

Hearing Date:                         January 12, 2023

Moving Parties:                      Plaintiffs Martin B. Canter, et al.

Responding Party:                  None

Motion for Summary Judgment

            The court considered the moving papers.

RULING

            The motion for summary judgment is DENIED WITHOUT PREJUDICE.

BACKGROUND

On March 1, 2022, plaintiffs Martin B. Canter, aka Matador Professional Services and Roselle Maria Clark, aka Rnqueen Nursing Consultants, Inc. (self-represented) filed a complaint against Ketan Patel, Jayshree Patel, aka Purview Hospice & Palliative Care, and aka Total Home Health, Inc. for (1) collection of monies, (2) deceptive business practices, and (3) fraud.

            On May 19, 2022, the court overruled defendants Ketan Patel and Jayshree Patel’s demurrer to the complaint.

            On June 27, 2022, defendants Ketan Patel and Jayshree Patel filed an answer.

LEGAL AUTHORITY

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843.  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal. App. 4th 1510, 1519.  A plaintiff moving for summary judgment or summary adjudication “has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. . . .”  CCP § 437c(p)(1).  “Once the plaintiff . . . has met that burden, the burden shifts to the defendant . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” CCP § 437c(p)(1).

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

DISCUSSION

            Plaintiffs Martin B. Canter and Roselle Maria Clark (self-represented) request that the court enter summary judgment against defendants.

Plaintiffs failed to comply with the notice requirements under CCP §437c(a)(2), which states that “[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.  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 . . . .”

Here, the motion was served on December 12, 2022 for a hearing on January 12, 2024, which is only 31 days.

Also, the motion is procedurally defective.  Plaintiffs’ declarations do not comply with CCP §2015.5 as they fail to state that they are “under penalty of perjury” and if executed in California, the place of execution.  Further, the exhibits were not properly authenticated.  It also appears that the exhibits exceed 25 pages and thus do not comply with Cal. Rules of Court Rule 3.1350(g).  There is also no separate statement in compliance with CCP §437c(b)(1) and Cal. Rules of Court Rule 3.1350(c), (d), and (h).  “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.” CCP §437c(b)(1).

The motion is thus DENIED WITHOUT PREJUDICE.

            The clerk is ordered to give notice of the ruling.