Judge: Kevin C. Brazile, Case: 21STCV35747, Date: 2023-04-07 Tentative Ruling

Hearing Date: April 7, 2023

Case Name: Regal Medical Group, Inc., et al. v. Nissanoff, M.D., et al.

Case No.: 20STCV41811 

Matter: Motion for Summary Adjudication 

Moving Party: Regal Medical Group, Inc. and Lakeside Medical Organization, A Medical 

Group, Inc.

Responding Party: Advanced Orthopedic Center, Inc. 

Notice: OK

Ruling: The Motion is denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On November 28, 2022, Regal Medical Group, Inc. (“Regal”) and Lakeside Medical Organization, A Medical Group, Inc. (“Lakeside”) filed the operative Second Amended Complaint (“2AC”) against Defendants Advanced Orthopedic Center, Inc. (“AOC”) and Jonathan Nissanoff for (1) violations of the UCL, (2) fraud, (3) unjust enrichment, and (4) declaratory relief.  “This action arises out of Dr. Nissanoff’s ongoing and unlawful efforts to game California’s managed care system as a means for reaping unjust and excessive profits at the expense of patients and health care payers like Plaintiffs Regal and Lakeside.”  (2AC ¶ 1.)

In consolidated case no. 21SMCV01411, AOC filed a Second Amended Complaint (“SAC”) against Regal for quantum meruit, breach of implied contract, unfair competition, and declaratory relief, arising from unpaid medical bills.

Regal and Lakeside now move for summary adjudication on six issues.

Code Civ. Proc. § 437c(a)(2) provides that “Notice of the motion [for summary adjudication] and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.”  “[T]he statutory language regarding minimum notice is mandatory, not directive.”  (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764.)   Where, as here, service is via email, two additional court days of time is required.  (Code Civ. Proc. § 1010.6.)

Regal and Lakeside failed to give proper notice for the Motion.  That is, the Motion should have been served by January 18, 2023, but instead it was served late on January 20, 2023.  Regal and Lakeside do not dispute this.  Instead, as the last argument in their Reply brief, they argue the Motion should be heard anyway because the Court must have approved the notice when it advanced the Motion hearing date.

The Court does not calculate notice times when granting applications for advancements or continuances.  That’s counsel’s duty.  The Court did not implicitly approve of the notice for the Motion.

Next, Regal and Lakeside argue that because an opposition was filed, the notice defect has been waived by AOC.  That contention is, in the summary judgment context, questionable.  However, as discussed, it’s the contention of Regal and Lakeside that it was this Court that allowed the shortened notice period.  Under that logic, “a full-blown opposition on the merits, in writing and at the hearing, does not appear to waive a timeliness objection.”  (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267.)

Lastly, Regal and Lakeside argue that there is no notice defect because it was AOC that wanted service by email.  This argument is not worthy of acknowledgement.  Either comply with the notice requirements or forfeit your dispositive motion.  

As a final note, the Court lacks authority to continue a motion for summary adjudication so as to rectify the notice requirement.  (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268; Cal. Judges Benchbook Civ. Proc. Before Trial § 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. The judge may not merely continue the hearing on the motion to a date 75 days after the original notice was given.”].)

The Motion for Summary Adjudication is, therefore, denied.  The objections are overruled.  The Requests for Judicial Notice are denied.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.