SUPERIOR COURT OF THE STATE OF CALIFORNIA  

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT 

 

 

I. Background 

Plaintiff Alba De Los Angeles Diaz (“Plaintiff”) filed a Second Amended Complaint (“SAC”) against defendants City of Los Angeles (“City”), Jacob Jahan and Simon Djahanbani for injuries arising from a trip and fall on the sidewalk. Trial in this matter is currently set for March 27, 2024. 

On September 26, 2023, Jacob Jahan and Simon Djahanbani (“Moving Party”) filed the instant motion for summary judgment against Plaintiff’s Complaint and City’s Cross-Complaint for indemnity.  

Plaintiff opposes the motion. 

 

II. Motion for Summary Judgment 

CCP § 437c(a)(2) requires that a motion for summary judgment be brought on 75 days' notice: “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 the 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.” 

With respect to the 75 days' notice requirement, the requirement is held mandatory in the absence of a stipulation between the parties. The Second District has considered whether trial courts may shorten this time and concluded: “we hold that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.”  (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118; See Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764 [“the Legislature did not…authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute.”]; see also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596 [75 days’ notice language “is mandatory and the court has no discretion to shorten the time …”].)   

Moreover, “the notice requirement is measured from the date notice is served to the date of the actual hearing, and not the originally scheduled hearing.”  (Lackner v. North (2006) 135 Cal.App.4th 1188, 1209.)  “The purpose of the 75–day service requirement is to allow the parties time to prepare their opposition and replies and to prepare for the hearing.”  (Id. at 1208; see Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 169-70 [moving party must file a notice of hearing on the motion for summary judgment at least 75 days before the time appointed for hearing).] 

In this case, Moving Parties filed and served the instant motion on September 26, 2023 by electronic service. With respect to the Notice requirement, 77 days (75 + 2 days for electronic service) before the December 14, 2023 hearing date was September 28, 2023. Therefore, the motion was timely served. However, Moving Parties’ moving papers did not include any expert witness declarations. On October 26, 2023, Moving Parties served Plaintiff via electronic mail an Amended Separate Statement and Notice of Lodgment, which included other exhibits and the declarations of expert witnesses Guy Stivers and Chris Nelson. Plaintiff, in opposition, contends this late service only allowed Plaintiff 49 days prior to motion being heard to prepare an opposition, and the untimely service of the supporting papers will severely prejudice Plaintiff because she is left without sufficient time to hire her own experts to contest the motion.    

A party opposing a motion for summary judgment is entitled to 75 days’ notice to prepare for the hearing.  (CCP § 437c(a)(2); Lackner, 135 Cal.App.4th at 1208.)  As stated above, Moving Parties are seeking summary judgment against Plaintiff’s complaint and the City’s cross-complaint, but it appears that neither Plaintiff nor the City were given 75 days’ notice of the hearing due to the subsequent and late filing of the Exhibits in support of the motion and the amended Separate Statement.  

There is no evidence of any stipulation between the parties to shorten time, and it would be an abuse of discretion to, for example, continue the hearing date for less than 75 days to cure this defect.  (See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268 [Holding, in a case decided after Lackner, that 76-day notice given on mailed motion was invalid, such that at the noticed motion hearing, “the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew…The four-day continuance was a violation of due process and an abuse of discretion.”].)  There is otherwise no evidence showing either Plaintiff or the City has waived the statutory notice requirement.  (See Urshan, 120 Cal.App.4th at 768 [“[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.”].)   

 

Based on the foregoing, the Court will not consider the motion at this time, as sufficient statutory notice was not given. Moving Parties’ motion for summary judgment will be taken off-calendar.