Judge: Joseph Lipner, Case: 22STCV30758, Date: 2025-02-27 Tentative Ruling

Case Number: 22STCV30758    Hearing Date: February 27, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendant Temple Akiba of Culver City dba Temple Akiba early Childhood Center (“Defendant”) moves for summary judgment against Plaintiff Lida Yousefzadeh (“Plaintiff”)

The motion for summary judgment was not timely served. The Court therefore has the options of either continuing trial to allow the motion to be heard, or denying the motion. The Court will confer with the parties at the hearing regarding the possibility of continuing trial so that the motion may be heard.

Background

This is an employment case.

Plaintiff was employed by Defendant and alleges that she was wrongfully terminated.

Plaintiff filed this action on September 20, 2022. The operative complaint is now the First Amended Complaint (“FAC”), filed on November 6, 2023 pursuant to the parties’ stipulation. The FAC raises claims for (1) retaliation under Labor Code, Section 1102.5; (2) wrongful termination in violation of public policy (race discrimination); and (3) wrongful termination in violation of public policy (age discrimination).

On December 16, 2024, Defendant moved for summary judgment. Plaintiff filed an opposition and Defendant filed a reply.

Discussion

Code of Civil Procedure, section 437c, subd. (2) sets out certain notice requirements for a motion for summary judgment. Effective January 1, 2025, a motion for summary judgment must be served on all other parties a minimum of 81 days prior to the hearing. (Code Civ. Proc., § 437c, subd. (2).) Prior to this date, the notice requirement was 75 days. (Former Code Civ. Proc., § 437c, subd. (a)(2), effective until January 1, 2025.)

The motion for summary judgment was served in 2024 and is therefore subject to the 75-day period. (Former Code Civ. Proc., § 437c, subd. (a)(2), effective until January 1, 2025.) Electronic service adds 2 court days. (Former Code Civ. Proc., § 437c, subd. (a)(2), effective until January 1, 2025.)

The motion hearing date for this motion is February 27, 2025. Seventy-five days before that date is Saturday, December 14, 2024. The deadline to serve the motion electronically was December 12, 2024.

Defendant contends that the motion was personally served on Friday, December 13, 2024. Plaintiff contends that the motion was served on Friday, December 13, 2024, but only electronically, and not by personal service. No party contends that service was effected on an earlier date.

The motion was not personally served. Defendant’s proof of personal service, filed on December 23, 2024, indicates that the papers were “Left at Door”. (Proof of Personal Service filed December 23, 2024.) This is not a valid way to effect personal service. Personal service requires “personal delivery of a copy of the summons and of the complaint to the person to be served.” (Code Civ. Proc., § 415.10 [emphasis added].)

What remains is electronic service. The deadline to serve Plaintiff electronically was December 12, 2024. Defendant did not serve Plaintiff by that date. The motion was thus served late.

A trial court has no authority to continue an MSJ hearing for a few days to cure late notice. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268.) “At that point, the notice period had to begin anew, and 75 days is mandatory where notice is given personally. (See § 437c, subd. (a).) If the trial court did not want to continue the impending trial date for the necessary amount of time, it could have taken the motion off calendar. [A] four-day continuance was a violation of due process and an abuse of discretion.” (Id. at p. 1268.)

The Court therefore has the options of either continuing trial to allow the motion to be heard, or denying the motion. The Court will confer with the parties at the hearing regarding the possibility of continuing trial so that the motion may be heard.