Judge: Matthew C. Braner, Case: 37-2022-00001826-CU-PN-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 11, 2024

04/12/2024  09:00:00 AM  C-60 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Matthew C. Braner

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Civil - Unlimited  Professional Negligence Summary Judgment / Summary Adjudication (Civil) 37-2022-00001826-CU-PN-CTL MISSION HILLS HEALTH CARE INC VS SANDERS REHASTE STERNSHEIN & HARVEY LLP [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants Jennifer Sternshein, Jai Chung, Sternshein Legal Group LLP, and Sanders, Rehaste, Sternshein & Harvey, LLP's motion for summary judgment, or in the alternative summary adjudication, is DENIED as untimely.

Defendants did not file and serve their motion within the required 75-day 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.'].) Here, Defendants served their motion by electronic service on January 26, 2024. (See, e.g., ROA #159, p. 5.) The motion was noticed for a hearing on April 12, 2024. (ROA #159, 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 April 12, 2024 hearing date results in a date of January 28, 2024, which is a holiday.

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.

Had Defendants served their moving papers via personal service, their motion filed on (Friday) January 26, 2024 would have been timely. But because Defendants 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 hearing date of April 12, 2024 to be timely served by electronic means, it needed to be served no later than January 24, 2024. By filing and serving their motion on January 26, 2024, Defendants provided less than the statutorily required notice period, rendering their motion untimely.

Accordingly, Defendants' motion is denied without prejudice.

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