Judge Kerry Bensinger, Case Number: 23STCV29577, Date: 2025-03-06 Tentative Ruling

On December 4, 2023, plaintiff Eduardo Villanueva (Plaintiff) commenced this FEHA action against defendants Commonspirit Health and David Werner (collectively, Defendants). Trial was scheduled for May 27, 2025.

On February 5, 2025, Defendants filed their motion for summary judgment or summary adjudication. Plaintiff was served with the motion by personal service on the same day. The motion is scheduled for hearing on April 28, 2025.

On February 25, 2025, Defendants filed an ex parte application to continue the trial date so that Defendants’ motion for summary judgment may be heard in compliance with Code of Civil Procedure (CCP) § 437c. Alternatively, Defendants request an order finding good cause to hear Defendants’ motion less than thirty days before trial pursuant to CCP § 437c(a)(3).

On February 25, 2025, Plaintiff filed an opposition to Defendants’ ex parte application.

On February 26, 2025, the court issued an order denying in part the ex parte application. The court specially set a hearing for Defendants’ Motion for Leave to Continue the Trial Date for March 6, 2025. Defendants were directed to file a reply by March 3, 2025.

Trial is currently scheduled for May 27, 2025. This is the first request for a trial continuance.

Defendants move the court for an order continuing the trial date by one week or to a date convenient to the court so that its motion for summary judgment may be heard at least 30 days before trial. In the alternative, Defendants request an order finding good cause to hear the motion less than 30 days before trial pursuant to CCP § 437c(a)(3).

“Numerous courts of appeal have held that a trial court cannot refuse to consider a motion for summary judgment that is timely filed.” (Cole v. Superior Ct. (2022) 87 Cal.App.5th 84, 88.) “A trial court may not refuse to hear a summary judgment motion filed within the time limits of [Code of Civil Procedure] section 437c. [Citation.] Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.)

Here, Defendants filed and served timely their motion for summary judgment. “Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing.” (Code Civ. Proc., § 437c(a).) Defendants served their motion on February 5, 2025 by personal service—82 days before the hearing date of April 28, 2025.[1] Further, February 5 is exactly 111 days[2] before the trial date.[3]

Plaintiff challenges personal service. In support, Plaintiff points to the Proof of Personal Service which indicates Defendants’ process server left Defendants’ motion at the doorstep of Plaintiff’s counsel’s office. Plaintiff’s counsel also states that she was not at her office on the day in question and that her office was closed. (Rand-Lewis Decl., ¶¶ 7-8.) The argument is not well taken.

CCP § 1101 provides, in pertinent part, “[t]he service may be personal, by delivery to the party or attorney on whom the service is required to be made, or it may be as follows: (a) If upon an attorney, service may be made at the attorney’s office, …. If there is no person in the office with whom the notice or papers may be left for purposes of this subdivision at the time service is to be effected, service may be made by leaving them between the hours of 9 a.m. and 5 p.m., in a conspicuous place in the office ….” (Emphasis added.) Defendants’ process server states that he served the papers “by placing [them] at the door” at 12:51 p.m. (See Proof of Personal Service, dated 2/6/25.) The process server left the papers in conspicuous place between the hours of 9 a.m. and 5 p.m. at Plaintiff’s counsel’s office. The court finds personal service was proper.

Given that Defendants served and filed timely their motion for summary judgment, the court cannot refuse to hear the motion. For this reason, Plaintiff’s arguments regarding Defendants’ purported delay in reserving a hearing date for its motion for summary judgment or seeking ex parte relief rather than filing a noticed motion are unavailing. The court will continue the trial date a short period so that Defendants’ motion for summary judgment may be heard at least 30 days before the trial date. Plaintiff does not demonstrate prejudice will result from a short trial continuance.

Based on the foregoing, Defendants’ motion/ex parte is GRANTED. The Final Status Conference scheduled for May 12, 2025 is CONTINUED to May 19, 2025 at 9:00 AM.¿ The Jury Trial scheduled for May 27, 2025 is CONTINUED to June 2, 2025 at 10:00 AM.¿ All discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates remain set to the previous trial date of May 27, 2025. The hearing date on the motion for summary judgment remains April 28, 2025, which is more than 30 days before the trial dae.

Kerry Bensinger

Judge of the Superior Court

[1] Defendants also served the motion by email and regular mail on February 5, 2025. There is no dispute these methods of service did not provide the statutory notice.

[2] 81 days per CCP § 437c(a)(2) plus 30 days per

[3] Plaintiff contends the deadline to hear Defendants’ motion is April 25, 2025 because the thirtieth day before trial—April 27, 2025—falls on a Sunday. Perhaps so. “The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (CCP § 437c(a)(3).) Thus, calculating 81 days from April 25, 2025, Defendants should have filed and served their motion no later than February 3, 2025. At the ex parte hearing, Plaintiff argued without any supporting authority that this is a jurisdictional defect which prohibits the court to consider Defendants’ motion for summary judgment. The case law and indeed, the statute itself, undermines Plaintiff’s position. As Defendants point out, a motion for summary judgment may be heard closer to the trial date upon a finding of good cause. (CCP § 437c(a)(3).) Further, the court has discretion to continue the trial date so that the motion may be heard at least 30 days before trial. Plaintiff may be correct that the court cannot shorten the notice period, but Plaintiff received the required notice. The issue is whether the hearing date falls too close to the trial. Hence, the court will continue the trial date to ensure the hearing takes place more than 30 days before the trial date.