Judge: Michael Shultz, Case: 21STCV45537, Date: 2023-12-19 Tentative Ruling

Case Number: 21STCV45537    Hearing Date: February 27, 2024    Dept: A

21STCV45537 Grace Rodriguez, et al. v. Paramount Convalescent Group

Tuesday, February 27, 2024, at 8:30 a.m.

 

[TENTATIVE] ORDER TAKING OFF CALENDAR DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, FOR SUMMARY ADJUDICATION

 

I.        BACKGROUND

       The first amended complaint filed January 8, 2024, alleges that Plaintiff, Grace Rodriguez is a sister and heir of Evangeline Rodriguez (“Decedent”), who was a resident of Defendant’s skilled nursing facility. Plaintiff alleges that Defendant failed to establish mandated safety protocols due to the COVID-19 pandemic. As a result, Decedent died on December 17, 2020, after contracting the virus. Plaintiff alleges claims for elder abuse, violation of residents’ rights, negligence, and wrongful death.

       On December 19, 2023, the Court granted defendant’s motion to abate the action until Plaintiff joined an omitted heir, Ralph Rodriguez. (M.O. 12/19/23.) The Court denied Defendant’s request to continue the March 13, 2024, trial date.  (Id.) Plaintiff added two omitted heirs to the first amended complaint on January 8, 2024. On February 2, 2024, the court denied Defendant’s ex parte application to continue trial. (M.O. 2/2/24.)             

II.      ARGUMENTS

       Defendant seeks judgment or alternatively, adjudication of all causes of action in favor of Defendant because Plaintiff cannot produce clear and convincing evidence to support her claims. Defendant did not breach a duty of care based on Defendant’s expert declaration, nor did Defendant cause Plaintiff’s injuries.

       Plaintiff argues the hearing was set for less than 30 days before trial, without a court order. Previously omitted heirs were not served with adequate notice of the motion. Plaintiff’s evidence controverts the material facts asserted.

       In reply, Defendant argues that Plaintiff agreed to accept an amended Motion for Summary Judgment which included omitted heirs, Ralph Rodriguez (Decedent’s brother) and Moriah Contreras (Decedent’s niece) and represented to the court that the addition of the new plaintiffs would not proffer new facts for the case. Plaintiffs’ evidence does not controvert the issues.

 

III.    DISCUSSION

       The motion cannot be heard later than 30 days before the date set for trial, unless the court orders otherwise, based on a showing of good cause. (Code Civ. Proc., § 437c(a).)     The court twice denied Defendant’s request to continue the March 13, 2024, trial date. Therefore, the motion was required to be heard by February 12, 2024 (30th day before trial). Defendant did not obtain an order permitting the motion to be heard closer to the trial date.

       Defendant’s contention that Plaintiff agreed in open court to accept service of this motion on behalf of the new plaintiffs misses the point. The issue is the statutory time required for hearing the motion, not Plaintiffs’ agreement to accept service for all plaintiffs. (Code Civ. Proc., § 437c.)

       Plaintiff contends that Defendant served a notice of Motion for Summary Judgment, or Alternatively, for Summary Adjudication on November 27, 2023, then served a second notice for a hearing scheduled for February 26, 2024, then served this motion on January 18, 2024, for hearing set February 27, 2024. (Opp., 5:9-16.) Defendant refers to an “amended notice of motion,” however, the court’s file reflects that the present Motion for Summary Judgment/Adjudication is the only motion Defendant filed. It does not amend another notice with another hearing date that was filed earlier.  

       The motion is also defective because Defendant gave all Plaintiffs less than 75 days’ notice, increased by two court days for service by electronic mail. (Cole v. Superior Court (2022) 87 Cal.App.5th 84.) Defendant filed and electronically served the motion on January 18, 2024, and set it for hearing on February 27, 2024. The motion should have been filed and served by December 12, 2023. (Cole v. Superior Court (2022) 87 Cal.App.5th 84.) The case was not abated until December 19, 2023.

       The court is without authority to shorten the minimum notice period absent the consent of the parties. (McMahon v. Superior Court (2003) 106 Cal.App.4th 112.) There is no evidence that any of the Plaintiffs consented to less than statutory notice of the motion presently filed with the court.

       Accordingly, the Motion for Summary Judgment, or Alternatively, for Summary Adjudication is TAKEN OFF CALENDAR for these procedural defects.