Judge Steven A. Ellis, Case Number: 22STCV32123, Date: 2023-10-09 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV32123, Date: 2023-10-09 Tentative Ruling

Case Number: 22STCV32123 Hearing Date: February 14, 2024 Dept: 29

Motion for Summary Judgment filed by Defendant Hasina Saleh.

Tentative

The motion is denied without prejudice.

Background

This action arises out of a vehicle accident that allegedly occurred on November 4, 2020, near the intersection of Las Virgenes Road and Agoura Road in Calabasas, California. On September 30, 2022, Plaintiffs Cesar Prado, Marcos D. Velasquez, Juan E. Ambrosio, and Daniel Morales, and Marvin Amilcar (collectively, “Plaintiffs”) filed a complaint against Defendants Hasina Saleh (“Defendant”) and Does 1 through 25 asserting causes of action for general negligence and motor vehicle negligence. Defendant filed an answer on March 1, 2023.

On May 17, 2023, the Court granted the motion of Plaintiffs’ attorney to be relieved as counsel. As set forth in the minute order, the order granting the motion was to be “effective upon filing proof of the signed orders on the clients.” That proof was filed on July 27, 2023 (and shows service on the clients by mail sent on July 27.)

On October 9 & 10, 2023, Defendant’s motions to deem the truth of the matters asserted in the Requests for Admissions propounded on Plaintiffs were GRANTED.

Defendant filed this motion for summary judgment on January 10, 2024 for hearing on February 14, 2024. No opposition has been filed.

Legal Standard

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.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)

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. (CCP § 437c(p)(2); 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.) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 849.) In ruling on a motion for summary judgment, “the court must consider all of the evidence and all of the inferences reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (LPP Mortgage, Ltd. v. Bizar (2005) 126 Cal.App.4th 773, 776.)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.) In the context of a motion for summary judgment, a cause of action has no merit if: (1) one or more of the elements of the cause of action cannot be separately established, even if that element is separately pleaded; or (2) a defendant establishes an affirmative defense to that cause of action. (Code Civ. Proc. § 437c(o)(1)-(2).) With respect to a motion for summary judgment “if it is not set forth in the separate statement, it does not exist.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 313.)

“Section 437c, subdivision (h) of the Code of Civil Procedure provides that a motion for summary judgment or adjudication shall be denied, or a continuance shall be granted, “[i]f it appears from the affidavits submitted in opposition ... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented....” The nonmoving party seeking a continuance “must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]” (Frazee v. Seely (2002) 95 Cal.App.4th 627, 633.)

Discussion

Defendant’s motion for summary judgment is untimely.

“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.” (Code Civ. Proc. § 437c(a)(2).)

Here, notice was served by mail to Plaintiffs, requiring notice to be served 80 days before the hearing. Defendant served notice only 35 days before the hearing on January 10, 2024. That is not timely. Therefore, the Court must deny Defendant’s motion for summary judgment without prejudice.

Conclusion

Moving Defendant’s motion for summary judgment is DENIED without prejudice.

Moving party to give notice.