Judge Lee W. Tsao, Case Number: 22NWCV01253, Date: 2024-07-18 Tentative Ruling

Judge: Lee W. Tsao, Case: 22NWCV01253, Date: 2024-07-18 Tentative Ruling

Case Number: 22NWCV01253 Hearing Date: July 18, 2024 Dept: C

PEHRSSON v. DOE SCHOOL DISTRICT

CASE NO.: 22NWCV01253

HEARING: 07/18/24

Defendant EAST WHITTIER CITY SCHOOL DISTRICT’s Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication is CONTINUED to Thursday, October 17, 2024 at 9:30 a.m. in Dept. SE-C.

Opposing Party to give notice.

This action was filed by Plaintiff JOHN PEHRSSON (“Plaintiff”) against Defendant EAST WHITTER CITY SCHOOL DISTRICT (“Defendant”) on November 8, 2022.

On December 5, 2022, the operative First Amended Complaint (“FAC”) was filed.

Trial is currently scheduled for December 6, 2024.

Timeliness

On April 11, 2024, Defendant filed the subject Motion for Summary Judgment/Adjudication (“Motion”). The Proof of Service filed in conjunction with the Moving Papers indicates that the Motion was served by personal service and electronic service on April 11, 2024. The Notice of Motion indicates that the hearing on this Motion was originally scheduled for June 25, 2024. On June 20, 2024, Defendant continued the hearing on this Motion to July 16, 2024. On June 21, 2024, this Court continued the hearing on the Motion once more to July 18, 2024.

In Opposition, Plaintiff argues that the Motion must be denied on procedural grounds as it was not brought on sufficient notice. Plaintiff argues that the Motion was improperly electronically served on the last day that the Motion could be personally served. (Drake Decl., ¶3., Ex. A.) Plaintiff’s Counsel further maintains that on April 11, 2024 (the last day to personally serve the Motion) Plaintiff’s Counsel was only hand-served with the “Evidence and Exhibit List in Support of the Motion for Summary Judgment, or in the Alternative, Summary Adjudication by East Whitter City School District.” (Drake Decl., ¶4.) Plaintiff’s Counsel contends that she was not personally served with the Notice of Motion, Motion, Memorandum of Points and Authorities, and Sepeparte Statement. (Id.)

CCP §437c(a)(2) requires that a motion for summary judgment be brought on 75 days’ notice: “Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for the hearing.” (Id.) The 75 day notice requirement is increased by two court days if service is by e-mail. (CCP §1010.6(a)(3).)

Here, the Court finds that the Motion was untimely electronically served by two days.

However, the separate Proofs of Service attached to the following documents: Notice of Summary Judgment/Adjudication; Separate Statement; and Evidence and Exhibit List, are all signed under penalty of perjury by Heather A. Kee, and state that all Moving Papers were served by personal service and electronic service on April 11, 2024. Based on the evidence presented, the Court finds that the Motion was timely served by personal service 75 days prior to the noticed hearing date.

The Motion is not untimely.

CCP §437c(h)

Plaintiff additionally argues in Opposition that there is good cause for a continuance because additional discovery is needed to oppose the Motion. (Drake Decl., ¶¶5, 11-14, Ex. B.)

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (CCP §437c(h).)

The subject Motion is potentially dispositive against the moving party. Counsel for Plaintiff states that on June 3, 2024, during the deposition of Defendant’s PMK, Plaintiff learned the names of additional teachers, faculty, and administrators who may have knowledge about perpetrator Jim Wiggins’s misconduct and assaults on Plaintiff. (Drake Decl., ¶¶ 12-14.) The Court finds that the information to be derived from the outstanding discovery is important to Plaintiff’s Opposition. In the interests of justice, and in favor of adjudicating this matter on the merits, the Motion is CONTINUED as indicated above.

A Supplemental Opposition and Supplemental Reply may be filed and served per Code in accordance with the new hearing date.