Judge: Matthew C. Braner, Case: 37-2020-00028758-CU-CR-CTL, Date: 2024-06-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - June 13, 2024

06/14/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Civil Rights Summary Judgment / Summary Adjudication (Civil) 37-2020-00028758-CU-CR-CTL MAYSTRENKO VS 6TH & ISLAND INVESTMENTS LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Defendant Madison Square Garden Entertainment Corp.'s motion for summary judgment is DENIED without prejudice.

Defendant's motion to seal is OFF CALENDAR, as it was filed without its own hearing reservation. (See San Diego Superior Court Local Rules, Rule 2.1.19.A ['Failure to reserve a date for hearing will result in the demurrer, motion, ex parte application, or order to show cause hearing not being heard.'].) The court notes that it in any case, it did not receive unredacted copies of the documents filed conditionally under seal pursuant to Rule 2.551 of the California Rules of Court, thereby mooting the motion.

As to Defendant's motion for summary judgment, Defendant did not file and serve the motion within the required time limit set forth in Code of Civil Procedure section 437c, subdivision (a)(2), which is a jurisdictional requirement the court has no authority to disregard. (See, e.g., McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118 ['[I]n light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.'].) Defendant served its motion by electronic service on March 28, 2024. (ROA #241, p. 4.) The motion was noticed for a hearing on June 14, 2024. (ROA #239, p. 1.) The last day to serve the motion is calculated by 'counting backward from the hearing date, excluding the day of the hearing as provided by Section 12.' (Code Civ. Proc., § 12c, subd. (a), underlining added.) Counting 75 days backwards from the June 14, 2024 hearing date results in a date of March 31, 2024, which is a holiday (a Sunday). If the last day to serve a motion is a holiday, that day is also excluded from the calculation. (Code Civ. Proc., § 12.) As the court understands the interaction of Code of Civil Procedure sections 12 and 12c, in counting backwards from the hearing date, if the last day to serve the motion falls on a holiday, exclusion of that day from the calculation means the last day to serve the motion is the next non-holiday counting backward. In other words, if the last day falls on a Sunday, the last day to serve the motion is the Friday before that Sunday, and not the Monday following that Sunday. As such, here the last day to serve the motion pursuant to the 75-day limit was March 29, 2024.

Had Defendant served its moving papers via personal service, its motion filed on (Thursday) March 28, 2024 would have been timely. But because Defendant used electronic service, the statutorily prescribed 75-day notice period 'shall be extended after service by electronic means by two court days . . . .' (Code Civ. Proc., § 1010.6, subd. (a)(3)(B); see also Code Civ. Proc., § 437c, subd. (a)(2) ['If the notice is served by . . . another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.'].) Thus, for a motion for summary judgment with a noticed Calendar No.: Event ID:  TENTATIVE RULINGS

3089692  23 CASE NUMBER: CASE TITLE:  MAYSTRENKO VS 6TH & ISLAND INVESTMENTS LLC [E-FILE]  37-2020-00028758-CU-CR-CTL hearing date of June 14, 2024 to be timely served by electronic means, it needed to be served no later than March 27, 2024. By filing and serving their motion on March 28, 2024, Defendant provided less than the statutorily required notice period, rendering the motion untimely.

Accordingly, Defendants' motion for summary judgment is denied without prejudice.

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3089692  23