Judge: Mark E. Windham, Case: 21STLC02968, Date: 2022-09-12 Tentative Ruling

Case Number: 21STLC02968    Hearing Date: September 12, 2022    Dept: 26

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING: 

Defendant Wilshire Manning Homeowners Association’s Motion for Summary Judgment is CONTINUED TO SEPTEMBER 14, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE..

SERVICE:

[X] Proof of Service Timely Filed (CRC 3.1300) OK

[X] Correct Address (CCP 1013, 1013a) OK

[X] 75/80 Day Lapse (CCP 12c and 1005 (b)) OK

SUMMARY OF COMPLAINT: Action for money had and received, and unjust enrichment.

REQUEST FOR RELIEF: Grant Defendant summary judgment on the grounds that Plaintiff has not alleged any cause of action. The Complaint is based on Defendant’s alleged violation of the statute of limitations, which is only a defense to an action.

OPPOSITION: The fines should not have been levied against Plaintiff back in October 2013. Plaintiff contends “in my view, the fees were not due” and that he was under the impression that the fines were dismissed.

REPLY: None filed as of September 7, 2022.

ANALYSIS:

Plaintiff Daryoush Javaheri (“Plaintiff”), in pro per, filed the instant action for money had and received, and unjust enrichment against Defendant Wilshire Manning Homeowners Association (“Defendant”) on April 13, 2021. Defendant filed its Answer on July 15, 2021.

Defendant filed the instant Motion for Summary Judgment on June 28, 2022. Plaintiff filed an opposition on August 23, 2022. Plaintiff’s Motion for Leave to File First Amended Complaint is set for hearing on September 14, 2022.

Discussion

As an initial matter, the Court notes that the Motion for Summary Judgment was served on Plaintiff on June 28, 2022 by electronic mail and overnight delivery. (Motion, p. 9.) Electronic mail adds two court days to the notice period; overnight delivery adds two calendar days. (Code Civ. Proc., § 1010.6, subd. (a)(4)(B); Code Civ. Proc., § 1005, subd. (b).) The minimum notice period for a Motion for Summary Judgment is 75 days. (Code Civ. Proc., § 437c, subd. (a)(2).) June 28, 2022 is only 76 calendar days prior to the September 12, 2022, making service of the Motion for Summary Judgment one day untimely. The Court has no discretion to shorten the notice period since it relates to due process to the non-moving party.  (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-16.) However, if an opposing party files an opposition on merits and makes no objection to the shortened notice, the defective service or shortened notice is waived. (Yanez v. Vasquez (2021) 65 Cal.App.5th Supp. 1, 6 [citing Carlton v. Quint (2000) 77 Cal.App.4th 690, 697].) Here, Plaintiff has filed a substantive opposition to the Motion, with no mention of the defective notice period. Therefore, the defective notice period is waived.

Also, in light of Plaintiff’s pending Motion for Leave to File First Amended Complaint, the Court is inclined the continue the hearing on the Motion for Summary Judgment. Amendment is permitted even while a motion for summary judgment is pending and Plaintiff filed the Motion for Leave to File First Amended Complaint more than a month before the instant Motion for Summary Judgment. (See Willemsen v. Mitrosilis (2014) 230 Cal.App.4th 622, 634 [“If we see a reasonable possibility that the plaintiff could cure the defect by amendment, then we conclude that the trial court abused its discretion in denying leave to amend.”].)

Conclusion

Defendant Wilshire Manning Homeowners Association’s Motion for Summary Judgment is CONTINUED TO SEPTEMBER 14, 2022 AT 10:00 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE.

Moving party to give notice.