Judge: Katherine Chilton, Case: 21STLC05003, Date: 2022-12-27 Tentative Ruling

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Case Number: 21STLC05003    Hearing Date: December 27, 2022    Dept: 25

PROCEEDINGS:      MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Plaintiff Laboratory Corporation of America

RESP. PARTY:         Defendant Pagiel Schecter, M.D.

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING:

Plaintiff Laboratory Corporation of America’s Motion for Summary Judgment is DENIED.

SERVICE: 

[X] Proof of Service Timely Filed (CRC 3.1300)             OK

[X] Correct Address (CCP 1013, 1013a)                                     OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b))                     OK

OPPOSITION:          Filed on December 12, 2022.                           [   ] Late                      [   ] None

REPLY:                     None filed as of December 21, 2022.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

On July 8, 2021, Plaintiff Laboratory Corporation of America (“Plaintiff”) filed an action against Defendant Pagiel Schceter (“Defendant”) for 1) breach of contract, 2) open book account, and 3) account stated.  On September 20, 2021, Defendant filed a General Denial.

On March 25, 2022, Plaintiff filed an Amendment to the Complaint, correcting Defendant’s name to “Pagiel Shechter, M.D.”  (3-25-22 Amendment.)

On July 6, 2022, Defendant, in pro per, filed an initial Motion to Compel Responses to Requests for Production of Documents, Set One, and Request for Monetary Sanctions in the amount of $2,000.  On August 16, 2022, the Court denied Defendant’s Motion.  (8-16-22 Minute Order.)

On October 6, 2022, Plaintiff filed the instant Motion for Summary Judgment (“Motion”).  Defendant, in propria persona, filed an Opposition to the Motion (“Opposition”) on December 12, 2022. The Court notes that the Opposition does not comply with California Rule of Court 3.1113 and the evidence submitted therewith is not in admissible form.  No reply has been filed.

On December 19, 2022, Defendant filed a Motion or Application to Seal Records.  No reservation has been made and Defendant has not complied with Rule of Court 3.1113 regarding the Memorandum in support of the motion.  Accordingly, the Court will not address that motion.

II.              Legal Standard

A party seeking summary judgment has the burden of producing evidentiary facts sufficient to entitle him/her to judgment as a matter of law.  (Code Civ. Proc. § 437c(c).)  The moving party must make an affirmative showing that he/she is entitled to judgment irrespective of whether or not the opposing party files an opposition.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 742-743.)  Thus, “the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519 (citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

When a plaintiff seeks summary judgment, he/she must produce admissible evidence on each element of each cause of action on which judgment is sought.  (Code Civ. Proc., § 437c(p)(1).)  When a defendant seeks summary judgment, he/she has the “burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.”  (Code of Civ. Proc. § 437c(p)(2).)

The opposing party on a motion for summary judgment is under no evidentiary burden to produce rebuttal evidence until the moving party meets his or her initial movant’s burden.  (Binder v. Aetna Life Insurance Company (1999) 75 Cal.App.4th 832, 840.)  Once the initial movant’s burden is met, then the burden shifts to the opposing party to show, with admissible evidence, that there is a triable issue requiring the weighing procedures of trial.  (Code Civ. Proc. § 437c(p).)  The opposing party may not simply rely on his/her allegations to show a triable issue but must present evidentiary facts that are substantial in nature and rise beyond mere speculation.  (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162.)  Summary judgment must be granted “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 any alternative request for summary adjudication of issues, such alternative relief must be clearly set forth in the Notice of Motion and the general burden-shifting rules apply but the issues upon which summary adjudication may be sought are limited by statute.  (Code Civ. Proc., § 437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)

III.            Discussion

As a preliminary matter, the Court notes that Plaintiff has filed and served a defective Notice of Motion which contains the wrong address for the courthouse where hearing on the Motion will take place.  The Notice of Motion must list the correct address for the courthouse in order to provide notice to all parties.  (California Rules of Court, rule 3.1110(b).)

            Furthermore, Code of Civil Procedure § 437c(a)(3) requires a motion for summary judgment to “be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.”  Here, the trial is scheduled for January 5, 2023, and the hearing on the Motion is scheduled for December 27, 2022, which is nine (9) days before the trial date.  (7-8-21 Third Amended Standing Order.)  Plaintiff has not presented any arguments as to why the hearing on the Motion should be held nine (9) days before the trial date.

            For these reason, Plaintiff’s Motion for Summary Judgment is DENIED.

IV.           Conclusion & Order

For the foregoing reasons:

Plaintiff Laboratory Corporation of America’s Motion for Summary Judgment is DENIED.

Moving party to give notice.