Judge: Mark H. Epstein, Case: 19SMCV02145, Date: 2025-03-25 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 19SMCV02145    Hearing Date: March 25, 2025    Dept: I

This is a motion for summary judgment, but it will need to be CONTINUED.  That is really a gift to the moving party, but the motion is such that it is necessary. 

The gist of the motion is that the moving party had a limited scope in the construction project.  Weitzman (the moving party) was not the architect or the contractor.  What he did (he says) was review drawings done by others and attend a pre-contract observation meeting.  He made comments as to the drawings and made proposals.  He and plaintiff entered into a contract and the contract limited his potential liability.  The liability was limited to areas that Weitzman actually reviewed or upon which he reported, according to the defense.  In all other respects, he argues, he is not liable for anything and the contract says so.  He contends that the contractual language was such that he would be released for problems relating to all work done before he was hired unless he reviewed and approved it, and that he was also released for all work he did not review.  He also contends that there is no such thing as a cause of action for gross negligence.  In opposition, plaintiff contends that Weitzman was to do the waterproofing.  According to the opposition, Weitzman made recommendations to the contractor and the contractor accepted those recommendations, but plaintiff states that Weitzman’s work was deficient and untimely.  Plaintiff also questions whether defendant is relying on the right language in the contract, and that extrinsic evidence can be introduced such that plaintiff will be able to undermine defendant’s interpretation of the contract.  In reply, Weitzman seeks to strike the opposition as untimely filed.  Weitzman made no attempt to address any of the arguments in the opposition.

Weitzman is wrong as to timing.  Weitzman notes that the opposition to a summary judgment motion must be filed 20 calendar days before the hearing.  That is indeed the law—now.  However, it is not the law that applies to this motion.  The timing aspects of a summary judgment motion were amended effective January 1, 2025.  The new law essentially adds six days to each brief.  The motion must be filed 81 days before the hearing, the opposition must be filed 20 days before the hearing, and the reply is due 11 days before the hearing.  But the prior law required the motion to be filed 75 days before the hearing, the opposition to be filed 14 days before the hearing, and the reply 5 days before the hearing.  The new law applies to motions filed on or after January 1, 2025.  This motion was filed on December 10, 2024, and therefore is governed by the old time line.  The opposition was filed on March 11, 2025, which is 14 days before the hearing, and therefore is timely. 

Normally the court would view this as a waiver of the reply.  But significant issues were raised in the opposition, and the court believes that a reply is in order.  Therefore, the moving party will have 3 court days to file a reply.  The court will discuss a new hearing date with the parties.