Judge: Ralph C. Hofer, Case: 22GDCV00480, Date: 2024-07-19 Tentative Ruling
Case Number: 22GDCV00480 Hearing Date: July 19, 2024 Dept: D
TENTATIVE RULING
Calendar: 1
Date: 7/19/2024
Case No: 22 GDCV00480 Trial Date: None Set
Case Name: Conn v. Hudson Insurance Company
MOTION FOR SUMMARY JUDGMENT
Moving Party: Defendant Hudson Insurance Company
Responding Party: Plaintiff Shannon Conn
RELIEF REQUESTED:
Summary judgment in favor of defendant Hudson Insurance Company and against plaintiff Shannon L. Conn as to Conn’s First Amended Complaint.
75 Day Lapse: No
Separate Statements: Yes
CAUSES OF ACTION: from First Amended Complaint
1) Recovery Against a Contractor’s License Bond
2) Breach of Covenant of Good Faith and Fair Dealing
3) Intentional Interference with Contract
4) Declaratory Relief
SUMMARY OF FACTS:
Plaintiff Shannon Conn alleges that in January of 2016, plaintiff entered into a Residential Purchase/Sale Agreement for the purchase of real property in Magalia, California, and that in February of 2016, the sellers agreed to make repairs to the subject property, including repairing the sinks and windows. Plaintiff was assured that no leaks were found in the master bathroom, but in April of 2016, shortly after plaintiff moved into the subject property, plaintiff discovered leaks and water intrusion.
Plaintiff alleges that in May of 2016 she hired Jim E. Hale dba Jim E. Hale B General Contractor and Plumbing Contractor to inspect and resolve the defects in the subject property. Hale represented that he had repaired the leak, but the leak in fact remained unrepaired, and caused water intrusion and mold growth.
Plaintiff alleges that plaintiff hired numerous contractors to repair and abate the leaks, and became ill.
In May of 2017, plaintiff filed a complaint for damages against Hale in the Superior Court of California, County of Butte. On May 23, 2022, the court entered judgment against Hall and in favor of plaintiff in the sum of $15,000.00.
The FAC alleges that at all times mentioned, Hale, as a licensed contractor, was required to be bonded, and was bonded through defendant Hudson Insurance Company. Plaintiff alleges that in July of 2022 plaintiff contacted defendant Hudson Insurance to recover against Hale’s contractor bond, but on July 20, 2022, defendant denied any claim by plaintiff. Plaintiff alleges that she has been harmed by defendant’s unjustified refusal to recognize and pay plaintiff’s asserted claim.
The file shows that on March 17, 2023, at a hearing on a demurrer and motion to strike with respect to defendant’s first amended answer, the court issued a stay in this case. The minute order states, “The Court hereby stays the case in its entirety, with the exception of filing a Responsive Pleading as ordered in today’s tentative ruling.”
The subject responsive pleading, the Second Amended Answer, was filed on March 24, 2023.
On October 3, 2023, at a Case Management Conference and Status Conference Re: Stay, the court indicated that it had read and considered the Declaration filed by counsel re: status of case in Butte County, and, after conferring with counsel, ordered, “The Stay issued in this case remains in effect.”
On March 6, 2024, at a Case Management Conference, the court ordered, “Stay remains in place.”
On May 7, 2024, at a Case Management Conference, the court lifted the stay in the case, and ordered plaintiff to give notice. On May 7, 2024, plaintiff filed and served a Notice of Ruling at Case Management Conference, reflecting that “the Court lifts the stay in the case.”
ANALYSIS:
Procedural
Stay
Plaintiff in opposition argues that the court cannot consider the motion because it was improperly filed and served while this action had been ordered stayed.
As noted above, this matter has been subject to a stay since the court ordered the matter stayed on March 17, 2023, with a narrow exception permitting the filing of a responsive pleading, which was filed on March 24, 2023. Since that time, the stay had been a complete stay, and no activity had occurred in this case at all except appearances at and declarations submitted in advance of a Case Management Conference which was continued several times for updates, and heard and continued along with a Status Conference Re: Stay, and variously a Status Conference Re: Appeal on Butte County Casse, and an OSC Re: Why Walker Motion Has Not Been Filed.
The stay was requested and granted, and maintained as a complete stay while a similar case, if not identical, was pending in Butte County.
On October 3, 2023, the court indicated that it had read and considered the Declaration filed by counsel re: status of case in Butte County, and, after conferring with counsel, ordered, “The Stay issued in this case remains in effect.”
On March 6, 2024, at a Case Management Conference, the court ordered, “Stay remains in place.”
On May 7, 2024, at the continued Case Management Conference, Status Conference and OSC, the court lifted the stay in the case, and ordered plaintiff to give notice. On May 7, 2024, plaintiff filed and served a “Notice of Ruling at Case Management Conference,” reflecting that “the Court lifts the stay in the case.” The court recalls that the stay was lifted based on representations at the hearing that the court in the Butte County case had entered a judgment in that matter based on the statute of limitations and sent out a notice of judgment, and that the time for appeal in the Butte County case had expired, and plaintiff had not filed an appeal.
As noted above, following the filing of the responsive pleading on March 24, 2023 until May 7, 2023, the stay was a complete stay, in place until this court determined there had been a final resolution of the Butte County case.
This motion, however, was filed and served on May 6, 2024, before the stay had been lifted on May 7, 2024.
The opposition has objected on this ground, and the court agrees that the motion was improperly filed and served while the stay was pending. The proper procedure would have been for defendant to have obtained a lifting of the stay prior to filing and serving the motion.
The court accordingly does not consider the motion. Such a motion must be properly filed and served when the filing and service would not violate the court’s order staying this matter.
Insufficient Notice
Plaintiff also argues in the opposition that the court lacks jurisdiction to hear this motion because the motion was served on insufficient notice.
The moving papers here were filed and served by electronic service on May 6, 2024 for a July 19, 2026 hearing date, only 74 days before the hearing, not the 75 required, and when, due to the use of electronic service, plaintiff was also entitled to two additional court days’ notice.
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.”
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 also 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. Moreover, the statutory language regarding minimum notice is mandatory, not directive.”) See also Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596.
Here, the motion noticed a hearing date of July 19, 2024. Seventy-five days prior to this date was May 5, 2024, computing the time by counting backward from the hearing date, excluding the date of the hearing, as required under CCP § 12c (a) (“Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the date of the hearing as provided by Section 12.”), was May 5, 2024, a Sunday.
The summary judgment statute provides at CCP § 437c(a):
(2) 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.
(Emphasis added).
Under CCP section 1010.6, governing the electronic service of documents:
“(4) Electronic service of a document is complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent. However, any 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…”
CCP § 1010.6(a)(4).
The statute sets forth exceptions that do not apply here, and also states, “(C) This extension applies in the absence of a specific exception provided by any other statute or rule of court.” CCP § 1010.6 (a)(4)(C).
The summary judgment statute does not provide a specific exception with respect to electronic filing, so the time period is extended by two court days under CCP § 1010.6, and so the motion was required to have been filed two court days prior to May 5, 2024, (a Sunday, so that two court days were the preceding Friday and Thursday), by May 2, 2024. The service here on May 6, 2024 was accordingly four days late.
Defendant in the reply acknowledges that due to a clerical error, defendant’s motion for summary judgment did not provide timely notice to plaintiff, but provided only 74 days’ notice. Defendant also acknowledges that because the motion was served electronically, the motion and supporting papers should have provided 77 days’ notice.
The papers concede that there was no stipulation between the parties to shorten time, and that defendant has attempted to obtain a stipulation from plaintiff to continue the hearing date, but plaintiff has not agreed to stipulate.
The court has no authority to continue the hearing date to cure this defect. See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268 (the Second District holding 76-day notice given on mailed motion was invalid, so 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.”).
The court accordingly declines to consider the motion on the additional ground that it was not brought on sufficient notice.
RULING:
Motion for Summary Judgment is NOT CONSIDERED BY THE COURT.
The motion was improperly filed while a complete stay of the action in its entirety was in place. Specifically, on March 6, 2024, the court ordered, “Stay remains in place.” The motion and supporting papers were then served and filed on May 6, 2024. It was not until a day later, on May 7, 2024, that the court ordered the stay lifted. [See “Notice of Ruling at Case Management Conference,” filed May 7, 2024]. This filing is in violation of the court’s stay order, and the motion will not be considered by the court.
In addition, defendant has acknowledged that the motion was not served on sufficient notice, but was served only 74 days prior to the time appointed for the hearing, and without permitting the additional two court days required for service by electronic service. Under CCP § 437c(a)(2) “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.” This requirement is mandatory in the absence of a stipulation between the parties, and trial courts do not have authority to shorten the minimum notice period for summary judgment hearings. McMahon v. Superior Court (2003, 2nd Dist.) 106 Cal.App.4th 112, 118; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764; Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 595-596. There has been no stipulation by the parties for the motion to be heard on shortened notice, and defendant has failed to obtain plaintiff’s stipulation prior to the hearing. The motion accordingly is not considered by the Court. The Court will inquire at the hearing if the parties are willing to stipulate to a shortened period of notice for the motion, and if the parties are amenable, will permit the hearing of the motion to proceed on its merits on shortened notice, at a future date to which the parties agreed.
The Court orders the reimposition of the complete stay of this matter, effective this date. The stay will stay all discovery propounded during the period the stay had been lifted, from May 7, 2024 to July 18, 2024, and the stay will also stay all other matters served, exchanged or noticed during that period, with the limited exception of the statutorily permitted briefing and the hearing on Plaintiff Shannon Conn’s Motion for Sanctions filed and served on July 3, 2024 and set to be heard on August 16, 2024. The limited exception to the stay order will expire at the hearing on August 16, 2024.
If defendant intends to file a motion for summary judgment, defendant must file an ex parte application seeking relief from the stay for the limited purpose of filing and pursuing a properly noticed motion for summary judgment. Such relief must be sought within 60 days. If defendant does not seek leave to file a motion for summary judgment, defendant risks waiving such a motion.
If limited relief is sought from the stay and granted, the motion for summary judgment will be required to be served and filed on the statutorily required notice.
If, after being served with the new motion, plaintiff determines that plaintiff needs further discovery to oppose the motion, plaintiff must promptly file an ex parte application seeking relief from the stay for the limited purpose of propounding and pursuing specified discovery pursuant to CCP section 437c(h). Such an ex parte application must make the proper showing for the propounding of specified specific discovery under CCP section 437c(h), that is, must by affidavit show “that facts essential to justify opposition may exist but cannot, for reasons stated, be presented.”
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
AUDIO OR VIDEO APPEARANCES
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