Judge: Lee S. Arian, Case: 23STCV14713, Date: 2024-03-28 Tentative Ruling

Case Number: 23STCV14713    Hearing Date: March 28, 2024    Dept: 27

 Hon. Lee S. Arian

Department 27

Tentative Ruling

Hearing Date:                3/28/2024 at 1:30 p.m.

Case No./Name.:         23STCV14713 REGINALD WILSON vs JIYEON CHOI

Motion Name:                MOTION TO COMPEL FURTHER

Moving Party:                 Plaintiff

Responding Party:      Defendant Ji Yeon Choi

Notice:                                Insufficient

Ruling:                               MOTION TO COMPEL FURTHER IS DENIED

Legal Standard

CCP § 1005(b) provides “all moving and supporting papers shall be served and filed at least 16 court days before the hearing. … if the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.”  

CCP § 1010.6(a)(3)(B) Provides “Any period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”¿  

Cole v. Superior Court (2022) 87 Cal.App.5th 84, 87 is on point. In Cole, the appellate court faced the same issue in relation to a summary judgment motion and, since CCP Section 437c does not expressly state any extension of the notice period for electronic service, it looked to CCP Section 1010.6, which addresses service by electronic transmission, to determine if any extension applies to such service. And, in fact, as noted above, Section 1010.6(a)(3)(B) provides for a two-day notice extension for electronic service. Here, too, Section 1005(b) does not expressly state an extended notice period, so we look to Section 1010.6. Accordingly, Plaintiff needed to serve the motion 18 court days before the hearing.

Factual Background and Analysis

It is undisputed that Plaintiff's motion was served electronically on March 5, 2024. The hearing must be scheduled for no earlier than March 29, 2024, 18 court days from the date of electronic service. However, the hearing is currently set for March 28, 2024, and is therefore untimely. Plaintiff’s contention that the Court can ignore the untimely nature of the motion is without merit.  The case to which it cites for the proposition that the Court has discretion to consider a noticed motion that provides less than the required notice relates to an opposition, not a noticed motion.  Consequently, Plaintiff's motion is DENIED.

PLEASE TAKE NOTICE:

If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept27@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.

Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.