Judge: Holly J. Fujie, Case: 21STCV37542, Date: 2023-02-08 Tentative Ruling

Case Number: 21STCV37542    Hearing Date: February 8, 2023    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Defendants Shelley Cheung and Nelson Cheung (collectively, “Moving Defendants”) 

RESPONDING PARTY: Plaintiff

The Court has considered the moving and opposition papers.  No reply papers were filed.  Any reply papers were required to have been filed and served at least five days before the hearing under California Code of Civil Procedure (“CCP”) section 437c, subdivision (b)(4).

BACKGROUND

This action arises out of a landlord/tenant relationship.  On December 23, 2022, Moving Defendants filed a motion for summary judgment (the “Motion”) which argues that Plaintiff waived her rights to pursue this action pursuant to the terms of a settlement agreement she and Moving Defendants entered into to resolve an unlawful detainer proceeding in the case entitled Nelson Cheung v. Yvonne Duran, LASC Case No. 21PDUD00798.

DISCUSSION

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  CCP 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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.  (CCP § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) 

Timeliness of the Motion

Notice of a summary judgment 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.  (CCP § 437c, subd. (a)(2).)  If the notice is served by facsimile transmission, express mail or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.  (Id.)  A trial court does not have the discretion to continue the hearing in order to make the notice period the statutorily required length.  (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-68.)  The statutory notice requirement of CCP section 437c, subdivision (a)(2) was not satisfied when Moving Defendants served the Motion electronically on December 23, 2022.  If Moving Defendants wish to proceed with the Motion, they must refile to restart the notice period.  (See Robinson v. Woods, supra, 168 Cal.App.4th at 1269.)  The Court therefore DENIES the Motion without prejudice.  

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing. 

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar. 

  Dated this 8th day of February 2023