Judge: Lisa R. Jaskol, Case: 23STCV05268, Date: 2024-08-01 Tentative Ruling

Case Number: 23STCV05268    Hearing Date: August 1, 2024    Dept: 28

Having considered the moving, opposition, and reply papers, the Court rules as follows. 

BACKGROUND 

A.   Prior proceedings 

On March 9, 2023, Plaintiff Luis Alvarado Flores (“Plaintiff”) filed this action against Defendants Amigo’s Building Materials & Hardware, Inc. (“Amigo’s”), Joel Artega Govea (“Govea”), It Is What It Was Smoke Shop and Mini Mart (“Smoke”), Darrell Anthony Jones (“Jones”), Guadalupe Zamudio (“Zamudio”), and Does 1-50 for negligence, negligence per se, strict liability based on statute, strict liability based on common law, negligent infliction of emotional distress, and premises liability. 

On April 25, 2023, the clerk entered the defaults of Smoke and Jones. 

On May 1, 2023, Amigo’s and Govea filed an answer and a cross-complaint against Cross-Defendants Roes 1-20 for indemnification, apportionment of fault, and declaratory relief. 

On May 8, 2023, the clerk entered Zamudio’s default. 

On October 24, 2023, Plaintiff amended the complaint to include Defendant Ural Gamble as Doe 1 (“Gamble”). 

The trial is currently scheduled for February 20, 2025. 

A.   This motion 

On April 22, 2024, Amigo’s and Govea (“Moving Defendants”) filed and electronically served a motion for summary judgment or, alternatively, summary adjudication.  The motion was set for hearing on July 3, 2024.  On June 18, 2024, Plaintiff filed an opposition.  On June 28, 2024, Moving Defendants filed a reply.  The Court continued the hearing to August 1, 2024. 

PARTIES’ REQUESTS 

Moving Defendants ask the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion.

DISCUSSION 

Under Code of Civil Procedure section 437c, subdivision (a), notice of a motion for summary judgment and supporting papers “shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.”  (Code Civ. Proc., § 437c, subd. (a)(2).) 

Code of Civil Procedure section 1010.6, subdivision (a)(3), requires that two court days be added to the notice period when the moving party electronically serves a summary judgment motion.  (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 10:77, p. 10-34 (Cal. Practice Guide); see Code Civ. Proc., § 1010.6, subd. (a)(3)(B) [“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” with exceptions that do not apply here].) 

Moving Defendants’ motion was set for hearing on July 3, 2024.  75 days before July 3, 2024 was April 19, 2024.  Adding two Court days to the notice period for electronic service made the last day for service April 17, 2024.  Moving Defendants’ proof of service states that Moving Defendants electronically served the motion on April 22, 2024. 

“Where the moving party notices the hearing in less than the required time, notice must begin anew.  The court cannot cure this defect by continuing the hearing for the missing number of days.”  (Cal. Practice Guide, supra, ¶ 10:80.6, p. 10-35, emphasis omitted.)  Therefore, the Court's continuance of the hearing to August 1, 2024 did not cure the defective notice. 

The Court denies the motion because Moving Defendants did not provide the statutorily mandated notice. 

CONCLUSION 

          The Court DENIES the motion for summary judgment or, alternatively, summary adjudication filed by Defendants Amigo’s Building Materials & Hardware, Inc. and Joel Artega Govea. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.