Judge: Joel R Wohlfeil, Case: 37-2021-00016590-CU-BT-CTL, Date: 2024-05-30 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 07, 2024

05/10/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Business Tort Summary Judgment / Summary Adjudication (Civil) 37-2021-00016590-CU-BT-CTL MILLER VS DYCK-O'NEAL INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/27/2024

The Motion (ROA # 307) of Defendants DYCK-O'NEAL, INC. ('DONI') and RADIAN LENDER SERVICES LLC erroneously sued as RADIAN CLAYTON SERVICES, LLC formerly known as RADIAN SERVICES LLC ('Radian') (DONI and Radian may be referred to collectively as 'Defendants') for summary judgment of the Second Amended Complaint ('SAC') or, alternatively, summary adjudication of each cause of action against Plaintiffs DAVID A MILLER AND CANDACE LYNETTE MILLER ('Plaintiffs'), is DENIED.

Defendants' Request (ROA # 313) for judicial notice is GRANTED except as noted. The Court takes judicial notice only of the dates on which Exh's 'I, J, N, O, P, Q, S, U, V, X, Y, Z and DD' were filed with the Court; otherwise, the Request is DENIED.

Plaintiffs' evidentiary objections (ROA # 326) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are OVERRULED except as noted. The objections to the declarations of Joseph Reccione and Cade Menger are SUSTAINED.

Defendants' evidentiary objections (ROA # 339) are SUSTAINED IN PART and OVERRULED IN PART.

The objections are OVERRULED except as noted. Nos. 4, 5, 9, 10, 13, 14, 16, 19, 24, 27 and 30 are SUSTAINED.

Defendants' evidentiary objections (ROA # 340) are SUSTAINED IN PART and OVERRULED IN PART.

The objections are OVERRULED except as noted. Nos. 4, 5, 6, 7, 9 - 12, 21, 22, 25 and 27 are SUSTAINED.

Plaintiff contends service of this Motion was not timely. This contention is correct.

'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 hearing .... 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.' Code Civ. Proc. 437c(a)(2).

Two court days are added to the notice period where electronic service is employed. Code Civ. Proc.

1010.6(a)(3).

The applicable notice period is computed by counting backwards from the hearing date, excluding the day of the hearing. Code Civ. Proc. 12c.

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3094737 CASE NUMBER: CASE TITLE:  MILLER VS DYCK-O'NEAL INC [IMAGED]  37-2021-00016590-CU-BT-CTL 'In sum, we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.' McMahon v. Superior Court (2003) 106 Cal. App. 4th 112, 118.

'In sum, the statutory language and existing case law lead us to the conclusion a trial court does not have authority to shorten the minimum notice period for summary judgment hearings absent the express consent of the parties.' Urshan v. Musicians' Credit Union (2004) 120 Cal. App. 4th 758, 768.

The proofs of service for the Motion papers indicate service via electronic transmission. Counting backward from the hearing date, Defendants were required to serve the Motion papers on February 22, 2024 (-75 days was a Sunday, +2 court days). However, the initial motion papers were served on February 26, 2024. The supplemental papers filed with the 'Notice of Errata' (ROA # 314) were not served until March 6, 2024.

The Notice period is defective. As a result, the Court does not have the authority to entertain this Motion. The Motion is denied on this basis and the Court does not address the substantive merits.

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