Judge: Michael E. Whitaker, Case: 19STCV07579, Date: 2022-07-25 Tentative Ruling

Case Number: 19STCV07579    Hearing Date: July 25, 2022    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Declaration of Susan L. Mason in Support of Motion for Summary Judgment
3. Declaration of Jack Qun Fang in Support of Motion for Summary Judgment
4. Declaration of Bo O Han in Support of Motion for Summary Judgment
5. Amended Notice of Motion and Motion for Summary Judgment
6. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment

BACKGROUND

Plaintiff Keishawn Simmons, a minor, by and through his Guardian ad Litem, Virginia Stephens sued defendants Bo O Han and Jack Qun Fang (collectively, “Moving Defendants”) based on injuries Plaintiffs alleges he sustained when he was bitten by a dog owned by defendant April Jenkins (“Jenkins”) while on property owned and controlled by Moving Defendants.  At the time of the incident, Jenkins leased the subject premises from Moving Defendants.  Moving Defendants move for summary judgment on Plaintiff’s complaint.  Plaintiff opposes the motion. 

The Court notes that the proof of service filed in connection with Plaintiff’s opposition is not signed by the person purporting to have effected service, and further fails to comply with any of the requirements of Code of Civil Procedure section 1013b.  (See Code Civ. Proc., § 1013b; Cal. Rules of Court, rule 2.251, subd. (j).) The Court is therefore unable to determine the date and manner of service of Plaintiff’s opposition upon Moving Defendants.  (See Code Civ. Proc., § 473c, subd. (b)(2) [all opposition papers must be served on the moving party and filed with the court at least 14 days before the date set for hearing on the motion]; see also Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765 [court has discretion to refuse to consider papers served and filed beyond the deadline with prior order finding good cause for late submission].) 

Based on Moving Defendants’ argument in their reply that Plaintiff failed to oppose the motion, the Court finds that the circumstances lead to the reasonable inference that Plaintiff did not timely serve his opposition.  To provide Moving Defendants an opportunity to review and respond to Plaintiff’s opposition, the Court continues the hearing on the motion.  (See Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 623 (dictum) (disapproved on other grounds by Colmentares v. Braemar Country Club, Inc. (2003) 29 Cal.4th 1019, 1031) [where the court decides to consider late-filed papers, circumstances may require a continuance of the hearing to allow the moving party an opportunity to reply to the matters raised therein].)

Accordingly, the Court continues the hearing on the motion to September 7, 2022 at 1:30 PM to permit Moving Defendants an opportunity to respond to the maters raised in Plaintiff’s opposition. 

Plaintiff is ordered to re-serve Moving Defendants with Plaintiff’s opposition papers on or before August 5, 2022 by personal delivery or overnight mail, and is ordered file a proof of service regarding the same on or before August 12, 2022. 

Moving Defendants’ supplemental reply, if any, shall be served and filed on or before August 19, 2022.  The Court authorizes no further argument beyond the issues raised in Plaintiff’s opposition filed on July 11, 2022. 

Moving Defendants shall provide notice of the Court’s ruling and to file a proof of service of same.