Judge: Holly J. Fujie, Case: 21STCV37542, Date: 2023-07-12 Tentative Ruling

Case Number: 21STCV37542    Hearing Date: July 12, 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.  The currently operative first amended complaint (the “FAC”) alleges: (1) violation of Civil Code section 1942.4; (2) tortious breach of the warranty of habitability; (3) private nuisance; (4) violation of Business and Professions Code section 17200, et seq.; (5) negligence; (6) breach of covenant of quiet enjoyment; (7) intentional influence to vacate; and (8) intentional infliction of emotional distress.[1]  On June 12, 2023, Moving Defendants filed a motion for summary judgment (the “Motion”) on the grounds that there are no triable issues of material fact as to Plaintiff’s claims because Plaintiff waived her rights to pursue this action when she and Moving Defendants entered into a settlement agreement to resolve an unlawful detainer proceeding in the case entitled Nelson Cheung v. Yvonne Duran, LASC Case No. 21PDUD00798.

REQUEST FOR JUDICIAL NOTICE

            Moving Defendants’ Request for Judicial Notice is GRANTED as to the existence of the documents, but not to the truth of the matters stated therein.

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 Court notes that the Motion represents Moving Defendants’ third attempt to obtain summary judgment of Plaintiff’s claims.  On February 8, 2023, the Court denied Moving Defendants’ first summary judgment motion due to Moving Defendants’ lack of compliance with the statutory notice requirements.  On June 7, 2023, the Court denied Moving Defendants’ second summary judgment motion due to Moving Defendants’ failure to file supporting papers such as a Separate Statement of Undisputed Material Facts.  The current Motion was filed on June 12, 2023 – less than thirty days before the scheduled hearing.  It therefore suffers from the procedural deficiency of Moving Defendants’ first motion—Moving Defendants did not satisfy the notice requirement of CCP section 437c, subdivision (a)(2).  Further, the current Motion does not comply with CCP section 437c, subdivision (a)(3), which requires that a summary judgment motion be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.  (See CCP § 437c, subd. (a)(3).)  Trial of this matter is scheduled for July 31, 2023 – less than thirty days before the date of the hearing on the Motion.  The Court therefore DENIES the Motion.

Moving party is ordered to give notice of this ruling.

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 12th day of July 2023