Judge: Mark E. Windham, Case: 22STLC01941, Date: 2022-10-20 Tentative Ruling

Case Number: 22STLC01941    Hearing Date: October 20, 2022    Dept: 26

MOTION FOR SUMMARY JUDGMENT

(CCP § 437c)

TENTATIVE RULING: 

Plaintiff Lux Life’s Motion for Summary Judgment is DENIED.

ANALYSIS:

Plaintiff Lux Life (“Plaintiff”) filed the instant action for breach of contract against Defendant Avus Autosport (“Defendant”) on March 24, 2022. Following Defendant’s failure to file a responsive pleading, the Court entered default on May 31, 2022 and default judgment on June 16, 2022.

On August 31, 2022, the Court granted Defendant’s Motion to Vacate Default and Default Judgment and ordered Defendant to file and serve its Answer within 20 days. (Minute Order, 08/31/22.) Defendant filed its Answer on September 8, 2022 and First Amended Answer on September 21, 2022.

Plaintiff filed the instant Motion for Summary Judgment on September 26, 2022. Defendant filed an opposition on October 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 only be waived if an opposing party files an opposition on the 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 26, 2022. (Proof of Service, filed 09/26/22.) This was less than 75 calendar days, plus five court days, before the October 20, 2022 hearing date. In fact, the papers were required to have been served by August 1, 2022 in order to comply with the statutorily mandated notice period. The Motion was served almost two months late and Defendant filed an opposition specifically objecting to the non-compliant notice period. Therefore, the Motion for Summary Judgment must be denied.

Conclusion

Plaintiff Lux Life’s Motion for Summary Judgment is DENIED.

Court clerk to give notice.