Judge Serena R. Murillo, Case 19STCV30424 2023-04-18 Tentative Ruling

Judge: Serena R. Murillo, Case: 19STCV30424, Date: 2023-04-18 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE. 4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020)

IMPORTANT: In light of the COVID-19 emergency, the Court encourages all parties to appear remotely. The capacity in the courtroom is extremely limited. The Court appreciates the cooperation of counsel and the litigants.

ALSO NOTE: If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar. THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 19STCV30424 Hearing Date: April 18, 2023 Dept: 29

TENTATIVE

Defendants Whitehouse Construction, Inc. and Matthew Whitehouse’s motion to specially set the MSJ hearing or continue trial is GRANTED. The MSJ is advanced to July 7, 2023. Trial is continued to August 21, 2023. Discovery and motion cutoff dates shall be based on the new trial date.

Legal Standard

Although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial. (Id., Rule 3.1332(c).)

Other relevant considerations may include: “(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] (3) The length of the continuance requested; [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; [¶] (7) The court's calendar and the impact of granting a continuance on other pending trials; [¶] (8) Whether trial counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a continuance; [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and [¶] (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Id., Rule 3.1332(d).)

Evidentiary Objections

Plaintiff’s objections to Defendants’ evidence in reply.

Defendants attached a declaration with some exhibits from their counsel, to their reply. While new evidence is generally not permitted on a reply, the additional information provided by Defendants do not appear to be new, but rather appear to be in direct response to issues raised by Plaintiff’s opposition. Thus, the Court may consider this additional information and the objections are OVERRULED.

Discussion

Defendants move to continue trial or specially set the hearing on their Motion for Summary Judgment (MSJ). Defendants argue that due to the Court’s congested calendar, the earliest available date for Defendant’s timely served MSJ to be heard is July 5, 2024, after the current trial date of June 21, 2023.

It is well established that a court may not refuse to hear a summary judgment motion that is timely filed.¿ (Wells Fargo Bank v. Superior Court¿(1988) 206 Cal.App.3d 918, 919¿[“We are asked to determine whether the trial court may refuse to hear a summary judgment motion filed within the time limits of Code of Civil Procedure section 437c.¿We determine it may not”]; Sentry Ins. Co. v. Superior Court¿(1989) 207 Cal.App.3d 526, 530¿[“We are sympathetic to the problems the trial courts experience in calendaring and hearing the many motions for summary judgment. However, the solution to these problems cannot rest in a refusal to hear timely motions.”].)¿¿¿¿

Here, Defendants served Plaintiffs with the motion for summary judgment on March 8, 2023, by personal service. As a result, Plaintiffs were given proper statutory notice 105 days before the date set for trial in this case. Notice of the motion and supporting papers must be served on all other parties at least 75 days before the time appointed for hearing. (CCP section 437c(a)(2).) The motion must be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. (Id., subd. (a)(3).) While Defendants had originally scheduled the motion for May 11, 2023, they realized that that hearing date did not provide Plaintiffs with enough notice. As a result, Defendants reserved July 5, 2024 instead. Nevertheless, this does not make the notice given to Plaintiffs defective. Plaintiffs were still provided 105 days’ notice in accordance with CCP section 437c subdivision (a)(2) and subdivision (a)(3).

In the case at hand, the MSJ hearing is currently set for July 5, 2024, whereas trial is scheduled on June 21, 2023. The latest date the MSJ could be heard, absent a court order, is May 22, 2023. “The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262 (Robinson).) “Because it is potentially case dispositive and usually requires considerable time and effort to prepare, a summary judgment motion is perhaps the most important pretrial motion in a civil case.” (Ibid.) “Therefore, the Legislature was entitled to conclude that parties should be afforded a minimum notice period for the hearing of summary judgment motions so that they have sufficient time to assemble the relevant evidence and prepare an adequate opposition.” (Ibid.) Thus, without the parties’ consent, “in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” (Ibid.)

The Court finds the MSJ set for July 5, 2024 should be advanced so that the trial is not delayed until next year. As a result, the Court will advance the MSJ to July 7, 2023. Moreover, the Court finds good cause to continue trial due to the Court’s unavailability to hear the motion before the trial date, and to ensure Plaintiffs have sufficient time to oppose the motion. Further, Plaintiffs have not argued that they would be prejudiced by a short continuance. Thus, Defendant’s motion is granted, and trial is continued to August 21, 2023.

Conclusion

Accordingly, the motion to specially set the MSJ hearing or continue trial is GRANTED. The MSJ is advanced to July 7, 2023. Trial is continued to August 21, 2023. Discovery and motion cutoff dates shall be based on the new trial date.

Moving party is ordered to give notice.