Judge Randolph M. Hammock, Case Number: 22STCV13204, Date: 2024-06-06 Tentative Ruling

Plaintiffs Ganeva Carroll, Karla Curry, Genesis Carroll, Edgar Pierce, and Lamar Edwards are residents of an apartment building owned by Defendant Marcia Frater. Plaintiffs allege Defendant failed to maintain the property in a habitable condition and retaliated against Plaintiffs for their complaints about the condition of the property. Plaintiffs assert causes of action for (1) breach of implied warranty of habitability, (2) breach of statutory warranty of habitability, (3) breach of covenant of quiet enjoyment, (4) negligence, (5) violation of Civil Code section 1942.4, (6) private nuisance, (7) violation of anti-harassment ordinance, and (8) violation of Civil Code section 1942.5.

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In analyzing motions for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). Thus, summary judgment is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.)

As to each claim as framed by the Complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.) A defendant has met its burden of showing that a cause of action has no merit if it demonstrates the absence of any single essential element of plaintiff’s case or a complete defense to plaintiff’s action. (Code Civ. Proc. § 437c(o)(2); Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858.) Once the defendant moving party has met the burden, the burden shifts to the plaintiff to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. (§ 437c(o)(2).)

As a preliminary and dispositive matter, Plaintiffs object to Defendant’s motion for lack of sufficient notice. A motion for summary judgment requires 75 days’ notice. (See CCP § 437c(a) [“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”]; see also Frazee v. Seely (2002) 95 Cal.4th 627, 636-637.) The applicable notice period is computed by counting backwards from the hearing date, excluding the day of the hearing. (CCP § 12c.) Importantly, courts may not shorten the 75–day notice period. (McMahon v. Superior Ct. (2003) 106 Cal. App. 4th 112, 115.) CCP § 437c(a) does not expressly provide for electronic service. However, it is widely accepted that this form of service, available on motions generally, is permitted. Thus, § 1010.6(a)(4)(B) requires that two court days be added to the notice period—accordingly, 77 days for electronic service. Electronic service is complete at the time of transmission or electronic notification of service.

Here, Defendant filed and electronically served her motion and supporting papers on May 16, 2024, for a hearing date of June 06, 2024. (See Proof of Service.) This means Plaintiff provided only 21-days of notice before the hearing date. Therefore, the motion is procedurally improper and must be denied. (First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 958, fn. 1) [“the in propria persona litigant is held to the same restrictive rules of procedure as an attorney”].)

Defendant may refile and re-serve the motion consistent with the mandatory procedural requirements of Code of Civil Procedure 437c, including the need for a minimum of 75-days of notice from the time of service to the date of the hearing. Defendant must also file and serve a mandatory Separate Statement “setting forth plainly and concisely all material facts that the moving party contends are undisputed.” (See § 437c(b)(1).)

Last, but not least, the Defendant is forewarned that her MSA appears to be borderline frivolous, as her motion, as currently presented, lacks any procedural and/or substantive merit. She would be well advised to ensure that any future MSA or MSJ follows all of the mandatory procedural requirements, as well as contains competent and admissible evidence that demonstrates that there are no triable issues of material fact which would thus warrant such requested relief. Otherwise, she should merely attempt to utilize any defenses she may have at the actual trial of this case.

(a) Any cause of action he has against any of the parties who filed the complaint or cross-complaint against him. Nothing in this subdivision authorizes the filing of a cross-complaint against the plaintiff in an action commenced under Title 7 (commencing with Section 1230.010) of Part 3.

(b) Any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.

After the trial date has been set, a party seeking to file a cross-complaint must obtain leave of court. (Code Civ. Proc., § 428.50(b).) Leave may be granted in the interest of justice at any time during the course of the action. (Id., § 428.50(c).) Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier. “The legislative mandate is clear. A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court. A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.” (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.)

Defendant Frater moves for leave to file a Cross-Complaint. By the Cross-Complaint, Defendant will add as Cross-Defendants Sherri Vanessa Williams (seller), Kay Wachuku (listing agent, selling agent, and property manager), and WFG Title Company, all involved in Frater’s purchase of the underlying property in this dispute.

Defendant Frater will allege that the Seller, Sherri Vanessa Williams, and title company, WFG, “did not provide [her] with Valid contracts/leases” when she purchased the property, resulting in her being named in this lawsuit. (Mtn. p. 2, ¶ 2.) Defendant Frater will further allege that Kay Wachuku, as selling agent, breached her fiduciary duties to Defendant by “withholding information from [Defendant] that there were a number of Code Violations filed against the property,” among other things. (Mtn. p. 2, ¶ 3.)

Judge of the Superior Court

FN 1 - The Cross-Complaint will add Sherri Vanessa Williams, Kay Wachuku, and WFG Title Company as Cross-Defendants. Williams was formerly a Defendant in this action but was dismissed on April 25, 2024, and is not named in the Supplemental Complaint. Wachuku and WFG Title are not parties at this time. The Proof of Service indicates that Plaintiff served Williams with notice of the motion electronically on May 16, 2024. (See 05/16/2024 Proof of Service.) However, the signature block on the proof of service, which must be executed under penalty of perjury, was left blank. (Id.) The court suspects this was merely done in error and Cross-Defendant was, in fact, properly served with the motion. Cross-Defendant also received notice of Plaintiffs’ “Non-opposition” to the motion. (See 05/21/2024 Proof of Service.) Finally, because Cross-Defendant was previously dismissed from the action, service on her is arguably not required. Accordingly, the court considers the service requirements to have been satisfied.