Judge: Michael E. Whitaker, Case: 24SMCV00906, Date: 2025-04-01 Tentative Ruling

Case Number: 24SMCV00906    Hearing Date: April 1, 2025    Dept: 207

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities

BACKGROUND

On February 28, 2024, Plaintiff Jay Scott Cohen (“Plaintiff”) brought suit against Defendants Panayotis Manas, individually and as Co-Trustee of the Panayotis P. Manads Family Trust; Anastasia Mandas, individually and as Co-Trustee of the Panayotis P. Mandas Family Trust; Louie Mandas; and the Panayotis P. Mandas Family Trust (“Defendants”) alleging two causes of action for (1) private nuisance and (2) intentional infliction of emotional distress.

Plaintiff moves for summary judgment and Defendants oppose the motion. 

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

            Notice of a motion for summary judgment and supporting papers “shall be served on all other parties to the action at least 81 days before the time appointed for hearing.  If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California [….]  If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.”  (Code Civ. Proc., § 437c, subd. (a)(2).)  For documents served electronically, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days[.]”  (Code Civ. Proc., § 1010.6, subd. (a)(3)(B).)

            Further, a motion for summary judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.  The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.  Each of the material facts stated shall be followed by a reference to the supporting evidence.  The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion.”  (Code Civ. Proc., § 437c, subd. (b)(1).)

            Here, Plaintiff has not provided any proof of service, demonstrating the motion was served in accordance with the requirements of Code of Civil Procedure section 437c, subd. (a)(2).  Further, the motion was filed on March 6, 2025, with hearing scheduled for April 1, 2025, suggesting that Plaintiff did not provide adequate notice of the motion.

            Moreover, Plaintiff has not provided a separate statement in support of the motion, which is an independent ground for denying the motion.[1]  The Court also notes that the Declaration of Jay Cohen does not provide any evidentiary facts other than to indicate Jay Cohen is the “Defendant” in Pro Per, which is demonstrably false, as Mr. Cohen is the Plaintiff in this action.

            Notwithstanding, “Providing access to justice for self-represented litigants is a priority for California courts.”  (California Rules of Court, rule 10.960, subdivision (b).)  “[W]hen a litigant is self-represented, a judge has the discretion to take reasonable steps, appropriate under the circumstances and consistent with the law and the canons, to enable the litigant to be heard.” (See also ABA Model Code of Jud. Conduct, canon 2, rule 2.2, com. 4 [“[i]t is not a violation of this Rule [regarding impartiality and fairness] for a judge to make reasonable accommodations to ensure pro se litigants the opportunity to have their matters fairly heard”].)  The canons and commentary thus provide a path to ensure a self-represented litigant can be fairly heard on the merits while the court maintains its impartiality and does not assume (or appear to assume) the role of advocate or partisan. (See Cal. Code Jud. Ethics, canon 3 [“a judge shall perform the duties of judicial office impartially, competently, and diligently”].)”  (Holloway v. Quetel (2015) 242 Cal.App.4th 1425, 1434.)

            Therefore, the Court’s denial of Plaintiff’s motion will be without prejudice to provide Plaintiff a second opportunity to correct the procedural deficiencies the Court has identified.

CONCLUSION AND ORDER

Therefore, the Court denies Plaintiff’s motion for summary judgment on procedural grounds without prejudice.  Plaintiff may re-file the motion in accordance with the provisions of Code of Civil Procedure section 437c and the California Rules of Court, and in particular, correcting the procedural errors identified by the Court above. 

Plaintiff shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.   

DATED:  April 1, 2025                                                          ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court