Judge: Mark E. Windham, Case: 21STLC04486, Date: 2022-09-27 Tentative Ruling

Case Number: 21STLC04486    Hearing Date: September 27, 2022    Dept: 26

TENTATIVE RULING: 

Plaintiff Life Family Law Group’s Motion for Summary Adjudication is DENIED.

TRIAL IN THIS MATTER IS SET FOR MARCH 14, 2023 AT 8:30 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)) NO

SUMMARY OF COMPLAINT: Action for breach of retainer agreement.

REQUEST FOR RELIEF: Grant Plaintiff summary adjudication on all causes of action. Defendant has not paid the balance of the attorney’s fees owed to Plaintiff.

OPPOSITION: The Motion was not timely filed or served, and fails to show that Plaintiff can prevail on the entire action.

REPLY: None filed as of September 22, 2022.    

ANALYSIS:

Plaintiff Life Family Law Group (“Plaintiff”) filed the instant action for breach of retainer agreement against Defendant Laura Matheu (“Defendant”) on June 15, 2021. Plaintiff filed proof of personal service of the Summons and Complaint on July 16, 2021. Due to Defendant’s failure to file a responsive pleading, the Court entered default on November 16, 2021 and default judgment on January 31, 2022. On June 16, 2022, the Court granted Defendant’s Motion to Vacate Default and Default Judgment. (Minute Order, 06/16/22.) In accordance with the June 16, 2022 order, Defendant filed an Answer on June 17, 2022. On June 18, 2022, Plaintiff sought to file an Amended Complaint.

Plaintiff filed the instant Motion for Summary Adjudication on August 31, 2022. Defendant filed an opposition on September 6, 2022.

Discussion

The minimum notice period for a Motion for Summary Adjudication or Judgment is 75 days. (Code Civ. Proc., § 437c, subd. (a)(2).) If the motion papers are served by mail, an additional five calendar days must be added to the notice period. (Code Civ. Proc., § 1005, subd. (b).) Nor does the Court have 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.) The defective service or shortened notice can be waived if an opposing party files an opposition on merits and makes no objection to the shortened notice. (Yanez v. Vasquez (2021) 65 Cal.App.5th Supp. 1, 6 [citing Carlton v. Quint (2000) 77 Cal.App.4th 690, 697].)

The instant Motion was served on Defendant, by mail, on September 6, 2022. (Proof of Service, filed 09/06/22.) The papers were required to have been served by July 10, 2022 in order to comply with the statutory mandated notice. The Motion was served more than two months late and Defendant filed an opposition specifically objecting to the non-compliant notice period. Therefore, the Motion for Summary Adjudication must be denied.

Conclusion

Plaintiff Life Family Law Group’s Motion for Summary Adjudication is DENIED.

TRIAL IN THIS MATTER IS SET FOR MARCH 14, 2023 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. 

Court clerk to give notice.