Judge Elaine Lu, Case Number: 21STCV24026, Date: 2023-08-15 Tentative Ruling

Judge: Elaine Lu, Case: 21STCV24026, Date: 2023-08-15 Tentative Ruling

1. If you wish to submit on the tentative ruling,
please email the clerk at SMCdept26@lacourt.org (and “cc” all
other parties in the same email) no later than 7:30 am on
the day of the hearing, and please notify all other parties in advance that you
will not be appearing at the hearing. Include the word "SUBMISSION" in all caps in the
subject line and include your name, contact information, the case number, and
the party you represent in the body of the email. If you submit on the
tentative and elect not to appear at the hearing, the opposing party may
nevertheless appear at the hearing and argue the motion, and the Court may
decide not to adopt the tentative ruling.

2.
For any motion where no parties submit to the tentative ruling in
advance, and no parties appear at the motion hearing, the Court may elect to
either adopt the tentative ruling or take the motion off calendar, in its
discretion.

3. PLEASE DO NOT USE THIS
EMAIL (SMCdept26@lacourt.org) FOR ANY PURPOSE OTHER THAN TO SUBMIT TO A TENTATIVE
RULING. The Court will not read or
respond to emails sent to this address for any other purpose.

4. IN ORDER TO IMPLEMENT
PHYSICAL DISTANCING GOING FORWARD AND UNTIL FURTHER NOTICE, THE COURT STRONGLY
ENCOURAGES ALL COUNSEL AND ALL PARTIES TO APPEAR TELEPHONICALLY FOR NON-TRIAL
AND NON-EVIDENTIARY MATTERS. Thus, until further
notice, Department 26 strongly encourages telephonic appearances for motion
hearings that do not require the presentation of live testimony.

Case Number: 21STCV24026 Hearing Date: September 15, 2023 Dept: 26

A trial court may not refuse to hear a summary judgment motion filed within the time limits of California Code of Civil Procedure § 437c. (See Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918.)

Courts applying Wells Fargo have made it clear that the rule requiring that trial courts accommodate motions for summary judgment, expressly assume that the moving party act with the requisite diligence. For example, in Fair Political Practices Com. v. American Civil Rights Coalition, Inc., 121 Cal.App.4th 1171, 1177 (2004), the court held that parties should implement the strategy of reserving a hearing date and delaying service of the motion to obtain a timely hearing date: “This strategy of reserving a hearing date and delaying service of the motion is more desirable than obtaining [a] . . . hearing date by ex parte motion because the ex parte motion requires a more significant amount of time and resources on the part of the attorney and the court.”

In the instant case, Defendants s Townsgate Wealth Management, Larry A. Bernstein, and Abby E. Dinkins have failed to file a timely motion for summary judgment. To date, Defendant have thus failed to demonstrate that they have pursued a motion for summary judgment with diligence. Nor have Defendants established their right to require the Court to hear a timely filed motion for summary judgment because they have not yet filed any motion for summary judgment. Accordingly, Defendants’ ex parte application to specially set a summary judgment motion is denied without prejudice for Defendants to bring a renewed ex parte application after filing a timely motion for summary judgment and/or adjudication.

If Defendants wish to trigger Defendants’ right to require the court to hear Defendants’ summary judgment motion pursuant to Wells Fargo Bank, Defendants must timely file and serve a summary judgment motion within the time limits of California Code of Civil Procedure section 437c, calculated based on the current trial date. If no reservation is available on CRS for a motion for summary judgment at least 30 days before the current trial date, Defendants should file their timely summary judgment motion using the soonest available CRS reservation date even if that reservation is for a hearing date that is less than 30 days before trial or even after trial. Immediately after filing a timely summary judgment motion, Defendants should bring a renewed ex parte application to advance the summary judgment motion to a date that is at least 75 days after the ex parte hearing and at least 30 days before trial.

Moving parties to give notice.