Judge: Michael P. Linfield, Case: 23STCV24638, Date: 2024-04-16 Tentative Ruling

Case Number: 23STCV24638    Hearing Date: April 16, 2024    Dept: 34

SUBJECT:        Motion for Interlocutory Summary Judgment

Moving Party: Plaintiff Abraham Carmona

Resp. Party:    None

The Motion for Interlocutory Summary Judgment is DENIED without prejudice.  

BACKGROUND:

        On October 10, 2023, Plaintiff Abraham Carmona filed his Verified Complaint for Partition by Sale of Real Property against Defendant Hilda Mendoza.

On November 29, 2023, Defendant, in propria persona, filed her Answer to the Complaint.

        On March 12, 2024, Plaintiff filed his Motion for Interlocutory Summary Judgment. In support of his Motion, Plaintiff concurrently filed: (1) Declaration of Abraham Carmona; (2) Separate Statement; (3) Proposed Order; and (4) Proof of Service.

        No opposition or other response has been filed to the Motion.

ANALYSIS:

I.          Legal Standard

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court’s action in his favor bears the burden of persuasion thereon. 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. Atl. Richfield Co. (2001) 25 Cal.4th 826, 850, citation omitted.)

“[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.” (Aguilar, supra, at p. 850; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474, [applying the summary judgment standards in Aguilar to motions for summary adjudication].)

“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, citation omitted.)

“The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder, supra, at p. 840, citations omitted; see also Weiss v. People ex rel. Dep’t of Transp. (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”].)

“On a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Super. Ct. (2003) 114 Cal.App.4th 309, 320, citation omitted.)

II.       Discussion

Plaintiff moves the Court for summary adjudication in this matter, which would include an order to partition the real property by sale and to split the proceeds equally. (Motion, p. 5:19–24.)

Defendant has not opposed or otherwise responded to the Motion.

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c, subd. (a)(2).)

        Here, Plaintiff filed the Motion for Interlocutory Summary Judgment on March 12, 2024. The hearing on the Motion is April 16, 2024. That is only 31 days — far less than the amount required by statute. Plaintiff has not made the Court aware of any authority that would allow for a shortened period in which to hear the Motion. Thus, this Motion is unripe.

III.     Conclusion

The Motion for Interlocutory Summary Judgment is DENIED without prejudice.  

        If Plaintiff wishes to refile a Motion for Summary Judgment that is properly filed and served pursuant to the Code of Civil Procedure, he may do so.