Judge: Laura A. Seigle, Case: 23GDCV00516, Date: 2023-08-15 Tentative Ruling

Case Number: 23GDCV00516    Hearing Date: December 8, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY ADJUDICATION

            On September 25, 2023, Defendant Autozone West LLC filed and served a motion for summary adjudication with a hearing date of December 8, 2023.  Plaintiffs Lorenzo Ruiz and Linda Ruiz filed objections to the motion arguing it is untimely.

            Code of Civil Procedure section 437c, subdivision (a) requires a party filing a motion for summary adjudication to give “at least” 75 days’ notice.  The August 15, 2023 trial setting order in this case set December 8, 2023 as the deadline for hearing motions for summary judgment and set trial on December 11, 2023.  (Trial Setting Order, ¶¶ 2, 26.)  (Because the court is dark on December 11, 2023, the trial date was recently continued to December 12, 2023.)  While the trial setting order allows the parties to stipulate to shorten the time for summary adjudication motions (ibid.), Plaintiffs and Defendant did not stipulate to shorten the time on Defendant’s motion.

            Plaintiffs argue that 75 days before December 8 was September 24, a Sunday.  (Objections at p. 3.)  To ensure that Plaintiffs had at least 75 days’ notice, Defendant needed to serve Plaintiffs by September 22.  By serving Plaintiffs on September 25, Defendants gave Plaintiffs only 74 days’ notice.  Also, Defendant accomplished service on September 25 at 6:08 p.m. (Rosenthal Decl., Ex. 3 at p. 1), but the trial setting order requires electronic service by 5 p.m. for electronic service to be equivalent to personal service on that day.  (Trial Setting Order, ¶ 7.)  Therefore Plaintiffs were technically served on September 26.

            Defendant argues Plaintiffs failed to meet and confer on a stipulation to shorten the notice period even though Plaintiffs gave other defendants shorter notice periods.  However, Defendant cites no law obligating Plaintiffs to consider giving Defendant a shorter notice period.  Further, Defendant states it did not ask for a shorter notice period until September 25, 2023, when the deadline to file the motion had already passed.  (Reply at p. 2.)

            Defendant suggests the court has the authority to shorten the 75-day period, citing Carlton v. Quint (2000) 77 Cal.App.4th 690.  In that case, the plaintiff filed an opposition to the motion for summary judgment on the merits and thereby waived any alleged defect in the service of the motion.  (Carlton, supra, 77 Cal.App.4th at p. 697.)  Here Plaintiffs did not file an opposition on the merits; they only filed objections to the motion based on untimely service.  Further, the law is clear that “trial courts do not have the authority to shorten the minimum notice period for summary judgment hearings.”  (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118.)

            Defendants argue that because Plaintiffs have violated the trial setting order, Defendant does not need to comply with the 75-day notice requirement.  (Reply at p. 5.)  Defendant cites no law that because Plaintiffs served late deposition notices, Defendant can give less than 75 days’ notice.

            Finally, Defendant contends the court can move the hearing date to late December to give Plaintiffs time to file an opposition.  (Reply at p. 6.)  This is not possible for at least two reasons.  First, trial is on December 12, 2023, and this is a preference case.  Defendant does not cite any law that a preference trial date can be continued because a defendant failed to give adequate notice on a summary adjudication motion.  Second, when a court continues a summary adjudication motion hearing date so that the moving party can give 75 days’ notice, the notice period must “begin anew.”  (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.)  The court cannot merely continue the hearing date a few days to account for the few days missing from the notice period.  Rather, it must continue the hearing date 75 days or take the motion off calendar.  (Ibid.) 

            The motion was served late.  The court cannot start the 75-day notice period all over again because that would require continuing the trial date for two and a half months, which the court cannot do in a preference case.  Therefore, the court takes the motion OFF CALENDAR.

            The moving party is to give notice.