Judge Gregory Keosian, Case 18STCV09778 2022-08-23 Tentative Ruling

Defendant La Brea Collection, LLC’s Motion to Strike Plaintiff’s Motion for Summary Judgment is DENIED.

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Defendants La Brea Collection LLC and Manochem Nazarian (Defendants) move to strike Plaintiffs Mehrdad Eshaghian and Info Lighting, Inc.’s (Plaintiffs) motion for summary judgment, filed on July 7, 2022, on the grounds that it was untimely served in relation to its scheduled hearing date of September 20, 2022, and on the grounds that it is set to be heard after one phase of trial has already been commenced and completed, in violation of applicable summary judgment rules. (Motion at p. 2.)

Motions for summary judgment must be served “at least 75 days before the time appointed for hearing.” (Code Civ. Proc. § 437c, subd. (a)(2).) The statute does not give courts the power to shorten the notice period, and where that 75-day notice period is not honored, the only proper response is to restart the notice period anew and reschedule the hearing. (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 [where notice was untimely given, “the notice period had to begin anew, and 75 days is mandatory where notice is given personally”].)

Plaintiffs’ motion was served personally upon Defendants’ counsel and by email on July 7, 2022, which is 75 days before the scheduled September 20, 2022 hearing date. However, Defendants point to the statute governing personal service upon an attorney, Code of Civil Procedure § 1011: “If upon an attorney, service may be made at the attorney's office, by leaving the notice or other papers in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or with a person having charge thereof.” (Code Civ. Proc. § 1011, subd. (a).) If no receptionist or person having charge thereof is present in the office to receive the papers, then “service may be made by leaving them between the hours of 9 a.m. and 5 p.m., in a conspicuous place in the office.” (Ibid.)

Plaintiffs previously moved ex parte to specially set a new hearing on their motion in order to obviate Defendants’ potential service objections, noting that personal service was accomplished at 5:30 p.m. at the office of Defendants’ counsel. Plaintiffs’ counsel declared that upon delivering the papers, he was met by “an individual who represented himself as being employed” at Defendants’ firm, who “advised that the office had . . . closed at 5:00 p.m.,” but who “accepted the moving papers” and “further advised that he would leave the papers in a conspicuous place in the office, with a note for the receptionist,” which he did in the presence of Plaintiffs’ counsel. (7/13/2022 Lesches Dec. ¶ 8.)[1]

Defendants argue that no service was accomplished upon Defendants’ attorney or upon the receptionist as described in Code of Civil Procedure § 1011. As such, service had to have been made between the hours of 9 a.m. and 5 p.m., but service was actually made at 5:30 p.m., as provided in the motion’s proof of service. Therefore, service was actually made on July 8, 2022, when the papers were actually presented to Defendants’ counsel, i.e. 74 days before the scheduled hearing, and thus untimely. (Motion at p. 9.)

Defendants’ argument is unpersuasive. Code of Civil Procedure § 1011 does not require service upon an office’s receptionist, but allows papers to be left with the office’s receptionist “or with a person having charge thereof,” i.e. with a person “having charge of the office.” (National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 618_619; People v. Perris Irr. Dist. (1904) 142 Cal. 601, 604.) The declaration of Plaintiffs’ counsel upon which Defendants rely — that he arrived at the office and met an individual who identified himself as an employee of Defendants’ counsel, who advised that the office was closed but who accepted the moving papers, who indicated that he would leave them in a conspicuous place with an accompanying note, and who then proceeded to do so in front of Plaintiffs’ counsel — is sufficient to establish service upon a person having charge of the office on July 7, 2022, under Code of Civil Procedure § 1011. (See King v. Wilson (1950) 101 Cal.App.2d 242, 244–245 [holding that personal service was accomplished under Code of Civil Procedure § 1011 when papers were left with a firm’s switchboard operator].) This argument is thus founded on a misunderstanding of the law, and is undermined by the very facts it relies upon.

Defendants further argue that the motion’s hearing is untimely under Code of Civil Procedure § 437c, subd. (a)(3). (Motion at pp. 6–8.) That provision states: “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” Although the motion is scheduled to be heard on September 20, 2022 — and thus more than 30 days before trial is currently set to begin on October 25, 2022 — Defendants argue that the motion is untimely because a bench trial has already been completed on the issue of whether a stipulated judgment governs this dispute. (Motion at p. 7.) The trial on this issue therefore precludes any motion for summary adjudication brought thereafter.

This argument is also unpersuasive. “[T]he 30–day time limit on summary judgment hearings should be calculated based on the trial date in existence when the motion is noticed regardless of whether that date is the original trial date or not.” (Green v. Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609.) When the motion was filed here, the trial date was October 25, 2022, and thus the motion was timely in relation to the applicable “date of trial.” Defendants present no authority for the proposition that an earlier bench trial on a different issue forever precludes any motions for summary adjudication brought thereafter. There are good reasons to avoid such an interpretation, as it would promote the waste of judicial resources by requiring courts to try baseless claims for which no triable issues of fact exist. Plaintiffs’ motion is therefore timely under Code of Civil Procedure § 437c, subd. (a)(3).[2]

[1] The ex parte application was denied on July 18, 2022.

[2] The present circumstances — trial bifurcated into two sections, on different issues, which are so remote from one another in time as to allow a full summary judgment notice period between them — also support a finding of “good cause” for scheduling the motion’s hearing date before the second phase of trial, as permitted under Code of Civil Procedure § 437, subd. (a)(3).

[3] Plaintiffs argue in opposition that the motion fails because a failure of service goes to the merits of the motion, and cannot be addressed by a motion to strike. (Opposition at p. 5.) They also argue that unlawful detainer cases are subject to expedited hearings on summary judgment motions, and thus the notice provisions of Code of Civil Procedure § 437c do not apply. (Opposition at p. 7.) Defendants in turn argue that the opposition is untimely and should not be considered. (Objection at pp. 2–3.) Because the motion fails upon its own terms, it is unnecessary to consider the opposition.