Judge: Theresa M. Traber, Case: 21STCV41132, Date: 2024-10-03 Tentative Ruling



Case Number: 21STCV41132    Hearing Date: October 3, 2024    Dept: 47

Tentative Ruling

 

Judge Theresa M. Traber, Department 47

 

 

HEARING DATE:     October 3, 2024                     TRIAL DATE: January 21, 2025

                                                          

CASE:                         Dermot Damian Givens v. Formosa Gardens HOA et al..

 

CASE NO.:                 21STCV41132

 

MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION (x2)

 

MOVING PARTY:               (1) Defendants Formosa Gardens HOA, Alexsei Durack, & Kevin Khuat; (2) Plaintiff Dermot Damian Givens.

 

RESPONDING PARTY(S): (1) Plaintiff Dermot Damian Givens. (2) Defendants Formosa Gardens HOA, Alexsei Durack, & Kevin Khuat.

 

CASE HISTORY:

 

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

           

            This is an action for fraud and enforcement of governing documents for a homeowner’s association under the Davis-Stirling Act. Plaintiff sued Formosa Gardens HOA (“Defendant HOA”) and Alexsei Durack and Kevin Ngoc Khuat (“Individual Defendants”) alleging breach of governing documents, multiple violations of the Davis-Stirling Act (Civ. Code § 5200 et seq.), fraud, theft in violation of Penal Code section 496, conversion, intentional interference with contractual relations, and declaratory relief.

 

            The parties filed cross-motions for summary judgment or summary adjudication.  

           

TENTATIVE RULING:

 

            The parties in this action filed cross-motions for summary judgment or summary adjudication. Defendants’ motion, filed on May 30, 2024, states in its proof of service that it was served via electronic service on Plaintiff, who is a self-represented litigant. (Defendants’ POS.) Electronic service may only be made on a self-represented litigant who manifests affirmative consent to receive electronic service pursuant to Code of Civil Procedure section 1010.6 subdivision (c). No such manifestation is on file. While Defendants have submitted a reply to a putative opposition to the motion, Plaintiff’s opposition has not been filed with the Court. Moreover, Plaintiff’s putative opposition does not remove this defect, as any deficiency in notice of a motion for summary judgment or summary adjudication may only be cured by re-noticing the motion with 75 days’ notice from the new notice date, or by express consent of the parties. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.)

 

            Plaintiff’s motion faces similar issues. Plaintiff’s moving papers, according to the proof of service, were served by mail on Defendants on June 18, 2024, the date those papers were filed. (See Plaintiff’s POS.) Defendants’ counsel, Christopher G. Kerr, states under penalty of perjury that his office was never served with the moving papers and did not discover the motion was filed until August 2024. (Declaration of Christopher G. Kerr ISO Opp. ¶ 3.) Plaintiff’s reply papers do not address this contention. It therefore appears that Plaintiff’s motion was also not properly served on Defendants.

 

            As trial in this matter is currently set for January 21, 2025, it is not possible, in light of the Court’s calendar, to continue the hearing in such a manner as to satisfy both the 75-day notice period and the requirement that the hearing be at least 30 days before trial. (Code Civ. Proc. § 437c subd. (a).) Therefore, absent a stipulation by the parties to have the motions heard on an earlier date, both motions must be denied for improper notice.

 

            Accordingly, Defendants’ Motion for Summary Judgment or Summary Adjudication is DENIED.

 

            Plaintiff’s Motion for Summary Judgment or Summary Adjudication is DENIED.

           

Moving Parties to give notice.

 

IT IS SO ORDERED.

 

Dated:  October 3, 2024                                  ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

 


            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.