Judge: Deirdre Hill, Case: 22TRCV00213, Date: 2022-09-22 Tentative Ruling

Case Number: 22TRCV00213    Hearing Date: September 22, 2022    Dept: M

Hearing Date:                          September 22, 2022

Moving Parties:                      Plaintiff Mike Harsini

Responding Party:                  Defendant Marcello Curko

Motion for Summary Judgment

            The court considered the moving, opposition, and reply papers.

RULING

            The motion is DENIED WITHOUT PREJUDICE.

BACKGROUND

On March 22, 2022, plaintiff Mike Harsini (self-represented) filed a complaint against Deputy Sheriff Marcello Curko for slander/libel and IIED.  Plaintiff alleges that on November 9, 2021, defendant rudely called plaintiff and said that “there is an outstanding warrant for your arrest which he has filed it with Torrance District Attorney’s Office on behalf of attorney Marsh for eavesdropping and illegal tape recording conversation.”  Plaintiff asked defendant what actual tape recording evidence he had.  On November 15, 2021, plaintiff attended a criminal court hearing and the judge dismissed Deputy Sheriff Curko’s “bogus charges against me due to the lack of any actual evidence.”  Plaintiff filed a civil case against attorney Marsh for libel/slander for falsely filing a criminal case against plaintiff.  On March 21, 2022, Judge Mackey in Dept. 55 granted defendant Marsh’s anti-SLAPP motion and awarded her attorney’s fees against plaintiff.

On August 19, 2022, the court denied plaintiff’s anti-SLAPP motion.

On August 22, 2022, plaintiff filed a motion for summary judgment.

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 or cross-complainant 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.  Once the plaintiff or cross-complainant has met that burden, the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The defendant or cross-defendant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact 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

            Plaintiff Mike Harsini (self-represented) requests summary judgment.

            In opposition, defendant points out that the motion was not filed and served in compliance with the time requirements under CCP §437c(a)(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 the hearing . . . . [T]he required 75-day period shall be increased by 5 days if the place of address is within the States of California.”).  Defendant was served on August 22, 2022 for a hearing on September 22, 2022, only 30 days prior to the hearing.

Also, as defendant contends, the motion was not filed in compliance with CRC Rule 3.1350(c) and (d) and CCP §437c(b)(1) as plaintiff did not file a separate statement.  “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).  Further, “[t]he motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.”  CCP §437c(b)(1).  Plaintiff failed to comply.

The motion for summary judgment is therefore DENIED WITHOUT PREJUDICE

Defendant is ordered to give notice of the ruling.