Judge Kevin A. Enright, Case 37-2017-00046602-CU-PO-NC 2023-10-06 Tentative Ruling

Judge: Kevin A. Enright, Case: 37-2017-00046602-CU-PO-NC, Date: 2023-10-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 06, 2023

10/06/2023 10:30:00 AM 2103 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Kevin A. Enright

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2017-00046602-CU-PO-NC AMBUUL VS BAYWA RE EPC LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendant GM Engineering, Inc.'s motion for summary judgment/summary adjudication is DENIED.

DISCUSSION Background This action arises from flood damage that Defendants' solar farm allegedly caused to Plaintiffs' properties. Plaintiffs' Second Amended Complaint alleges causes of action for: (1) negligence; (2) trespass; and (3) nuisance.

Defendant/Cross-Complainant BayWa R.E. EPC, LLC (BayWa) filed a Cross-Complaint against Cross-Defendants GM Engineering, Inc. (GM) and Michael Baker International, Inc. (MBI). BayWa's Cross-Complaint alleges causes of action against GM for: (1) equitable indemnity; (2) contribution; (3) declaratory relief; (4) apportionment of fault; (5) express contractual indemnity; and (6) breach of contract. (ROA 31.) On July 14, 2023, GM filed the instant motion for summary judgment/summary adjudication as to all six causes of action against GM in BayWa's Cross-Complaint. (ROA 615.) The motion was initially set for hearing on October 20, 2023 before Judge Bowman in Department N-31. (ROA 620.) On August 17, 2023, the hearing on this motion was scheduled for September 29, 2023 before this Court, and GM electronically served notice of the September 29th hearing date. (ROA 624, 625.) On September 14, 2023, the Court rescheduled the hearing to October 6, 2023. The Clerk of the Court mail served notice of the rescheduled October 6th hearing date on GM. (ROA 633, 634.) On September 15, 2023, BayWa filed its opposition to the motion. (ROA 637.) The caption of BayWa's opposition identified the hearing date as September 29th. (Id., at p. 1.) On September 15, 2023, GM also electronically served notice of the new October 6th hearing date. (ROA 643.) Analysis BayWa objects to GM's motion for summary judgment/adjudication on the ground that BayWa was not given the minimum statutory notice based on the September 29, 2023 hearing date. (ROA 637, Calendar No.: Event ID: TENTATIVE RULINGS

3020533 CASE NUMBER: CASE TITLE: AMBUUL VS BAYWA RE EPC LLC [IMAGED] 37-2017-00046602-CU-PO-NC Opposition, p. 3: 23-4: 2.) A motion for summary judgment and/or summary adjudication must be served 'at least 75 days' before the hearing. (C.C.P., §§ 437c(a)(2), 437c(f)(2).) The summary judgment procedure is statutory, and technical compliance with the procedures of C.C.P. section 437c is required.

(See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.) The Court lacks the power to shorten the required minimum notice of the hearing without the parties' consent. (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764; McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118.) The deadline is calculated by counting backward from the hearing date, excluding the day of the hearing. (C.C.P., § 12c(a).) Seventy-five days from the hearing date of September 29, 2023 was Sunday, July 16, 2023. GM thus needed to serve its motion no later than Friday, July 14, 2023. (C.C.P., §§ 12, 12a.) Additionally, because GM chose to serve the motion by electronic service, the required 75-day period was increased by two additional court days, such that GM needed to serve the motion no later than July 12, 2023. (C.C.P., §§ 12c(b), 1010.6(a)(4)(B), 437c(a)(2).) Here, the proof of service indicates GM electronically served the motion on July 13, 2023. (ROA 615, Notice of Motion, at p. 17.) In opposition, BayWa submitted evidence that electronic service was not effectuated until July 14, 2023. (ROA 639, Marking Dec., at ¶ 4 and Exh. 1, pp. 1-2.) In reply, GM acknowledges the motion was filed and served on July 14, 2023. (ROA 651, Reply, p. 3: 4-5.) GM's motion is untimely, and the Court has no authority to rule on this motion.

GM's arguments the motion was timely filed and served lack merit. GM contends the Court advanced the hearing date to September 29th to accommodate the November 3rd date for the Phase 2 trial. (ROA 651, p. 3: 6-8.) As previously stated, the Court lacks the power to shorten the required minimum 75-days' notice of the hearing without the parties' consent. (Urshan, supra, 120 Cal.App.4th at p. 764.) There is no evidence of a stipulation by the parties to shorten the notice period or a waiver by BayWa of statutory notice. GM also argues the motion is timely based on the original October 20, 2023 hearing date. (ROA 651, p. 3: 4-5.) However, the hearing date was shortened to September 29th without the consent of the parties. Where the notice of the hearing on the motion is provided for less than the required time, notice must begin anew. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268; see also Cal Judges Benchbook: Civil Proceedings-Before Trial (CJER March 2022) Summary Judgment and Summary Adjudication Motions § 13.15 ['When the opposing party does not stipulate to a shorter notice period or waive any objection to the untimely notice, a new, timely notice must be given'].) Finally, although GM contends the notice issue is moot given the Court continued the hearing on this motion to October 6, 2023 (ROA 651, p. 3: 11-13), the Court is precluded from continuing the hearing on the motion to provide the requisite 75-day period after the notice was given. (See Robinson, supra, 168 Cal.App.4th at pp. 1262-68 [trial court abused its direction by continuing the noticed hearing for four days in an effort to provide 75 days of notice].) Based on the foregoing, Cross-Defendant GM Engineering, Inc.'s motion for summary judgment/summary adjudication is DENIED.

If this tentative ruling is confirmed, the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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