Cole v. Super. Ct. ( 2022 )

Filed 12/30/22
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GEOFF COLE et al., D081299
Petitioners, (San Diego County
Super. Ct. No. 37-2019-00001928-
v. CU-BC-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
MATT ZEINER et al.,
Real Parties in Interest.
ORIGINAL PROCEEDING in mandate. Richard S. Whitney, Judge.
Petition granted.
Vincent Paul Sorrentino, Attorney for Petitioners.
Roger S. Bonakdar, Attorney for Real Party in Interest, Matt Zeiner.
Petitioners Geoff Cole and Admiral’s Experience, Inc. seek a writ of
mandate to compel the trial court to calendar their timely motion for
summary judgment for a hearing before the start of trial. We notified the
parties we were considering issuing a peremptory writ in the first instance
(Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178–180), and
have read and considered the informal response and request for judicial
notice from real party in interest Matt Zeiner (Zeiner). Petitioners have also
field a reply brief, which Zeiner has requested to strike. We grant the
request for judicial notice, deny Zeiner’s request to strike the reply brief, and
conclude that petitioners are entitled to peremptory writ relief. We also
publish our decision to provide guidance on the deadline for filing a summary
judgment motion that is served electronically.
BACKGROUND
In 2018, a dispute arose between petitioners and Zeiner after a trailer
petitioners rented from Zeiner was destroyed. In January 2019, Zeiner
initiated the underlying lawsuit against petitioners seeking to recover for the
loss of the trailer.
Petitioners electronically filed and served a motion for summary
judgment on October 5, 2022. On October 5, 2022, petitioners’ counsel
contacted the trial court to reserve a hearing date for the motion, and the
earliest date available was January 27, 2023, which counsel reserved. Since
trial in the matter was already set for January 20, 2023, the summary
judgment motion would not take place until after trial had already begun.
On November 9, 2022, petitioners filed an ex parte application to
specially set a hearing date for the motion for summary judgment, or in the
alternative, to continue trial and expert discovery dates until after the motion
for summary judgment could be heard. On November 22, 2022, the court
denied petitioners’ ex parte request, stating that no earlier dates were
available to hear the motion. The court commented, “This is a 2019 case and
the moving party waited until right before scheduled trial . . . to schedule a
Motion for Summary Judgment.” Petitioners filed a motion for
reconsideration and again requested a trial continuance to allow the motion
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for summary judgment to be heard before the start of trial, which was also
denied.
Petitioners now pray for a writ of mandate directing the trial court to
continue trial until after the motion for summary judgment can be heard.
Petitioners contend that, despite any calendaring issues in the trial court, a
hearing for their timely motion for summary judgment must be set before the
start of trial. Zeiner contends that petitioners purposefully delayed filing the
motion for summary judgment to avoid going to trial, and the trial court was
therefore within its discretion to deny petitioners’ requests to continue the
trial date.
DISCUSSION
Code of Civil Procedure section 437c, subdivision (a)1 provides: “A
party may move for summary judgment in an action or proceeding if it is
contended that the action has no merit or that there is no defense to the
action or proceeding. The motion may be made at any time after 60 days
have elapsed since the general appearance in the action or proceeding of each
party against whom the motion is directed or at any earlier time after the
general appearance that the court, with or without notice and upon good
cause shown, may direct . . . [n]otice 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 . . . The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise.”
Petitioners contend that under section 437c, their motion for summary
judgment was due October 7, 2022, which was 105 days before the start of
1 All further undesignated statutory references are to the Code of Civil
Procedure.
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trial. However, section 437c extends the 75-day noticing period required for
motions for summary judgment based on the method of service. For instance,
if the notice is served by mail, the time is extended by 10 days for service in
the United States or 20 days for service outside the country. (Id. at subd.
(a)(2).) Additionally, section 437c, subdivision (a)(2) provides that “[i]f 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.” (Ibid.)
Here, trial was set to begin on January 20, 2023, and petitioners served
the notice for the motion for summary judgment electronically on October 5,
2022. Section 437c does not expressly reference any extension of the notice
period for electronic service. However, section 1010.6, which sets forth the
rules for electronic service generally, provides that: “If a document may be
served by mail, express mail, overnight delivery, or facsimile transmission,
electronic service of that document is deemed 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.” (Id. at subd. (a)(3).) The
statute further provides that “[a]ny period of notice . . . 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.” (Id. at subd. (a)(3)(B).) The statute
lists three exceptions to this general rule, but the list does not include
motions for summary judgment. (Ibid.) The statute also provides that “[t]his
extension applies in the absence of a specific exception provided any other
statute or rule of court.” (Id. at subd. (a)(3)(C).)
Petitioners are therefore incorrect that their motion for summary
judgment was due by October 7, since this calculation does not account for
the two-day extension of the noticing period that applies to motions for
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summary judgment that are served electronically. Nevertheless, applying
section 1010.6’s two-day extension to section 437c, petitioners were required
to serve their motion for summary judgment, at the latest, 107 days before
trial. Accordingly, their motion filed on October 5 was timely, but with no
time to spare.
Numerous courts of appeal have held that a trial court cannot refuse to
consider a motion for summary judgment that is timely filed. “A trial court
may not refuse to hear a summary judgment filed within the time limits of
[Code of Civil Procedure] section 437c. [Citation.] Local rules and practices
may not be applied so as to prevent the filing and hearing of such a
motion.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529
(Sentry); accord, First State Inc. Co. v. Superior Court (2000) 79 Cal.App.4th
324, 330 [invalidating case management order to the extent it precluded
filing motions pursuant to section 437c]; Wells Fargo Bank v. Superior Court
(1988) 206 Cal.App.3d 918, 923 [local court rule that “require a party filing a
complex summary judgment motion to file the motion six months before the
date set for trial is void and unenforceable because it is inconsistent with
section 437c”].) As the Sentry court explained: “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.” (Sentry, supra, at p. 530.)
Because petitioners’ motion for summary judgment was filed within the
time limits set by section 437c, they have a right to have their motion heard
before the start of trial. Zeiner asserts that petitioners purposefully delayed
filing the motion for summary judgment and then delayed asking for ex parte
relief so that they could avoid going to trial. But the fact remains that the
motion was timely filed, and calendaring issues are not a basis on which the
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trial court can refuse to hear a timely filed summary judgment motion,
absent an indication that it was defective under section 437c. (Sentry, supra,
207 Cal.App.3d at p. 530.) We also reject Zeiner’s suggestion that we should
deny writ relief because petitioners’ motion for summary judgment will
ultimately be unsuccessful. “Because [a summary judgment motion] is
potentially case dispositive and usually requires considerable time and effort
to prepare, [it] is perhaps the most important pretrial motion in a civil case.”
(MacMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117–118.) Lastly,
Zeiner’s contention that petitioners waived this issue in the trial court lacks
support in the record, as petitioners’ first ex parte request to specially set a
hearing date for the motion for summary judgment specifically alerted the
trial court that the motion was timely filed under section 437c, and that the
motion needed to be heard before the trial start date.
The trial court therefore erred by refusing to set a hearing for the
motion for summary judgment before the start of trial. To correct the error, a
peremptory writ in the first instance is appropriate. There are no material
facts in dispute, the applicable law is settled, petitioners are clearly entitled
to relief, the impending trial date requires prompt resolution, and no useful
purpose would be served by plenary consideration of the issue. (§ 1088; Lewis
v. Superior Court (1999) 19 Cal.4th 1232, 1240–1241.)
DISPOSITION
Let a writ issue commanding the trial court, immediately upon receipt
of the writ, to vacate the portion of its orders refusing to calendar petitioners’
motion for summary judgment for a hearing before the start of trial, and to
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enter a new order setting the motion for a hearing no later than the trial start
date. The parties are to bear their own costs of this writ proceeding. (Cal.
Rules of Court, rule 8.493(a)(1)(B).)
BUCHANAN, J.
WE CONCUR:
HUFFMAN, Acting P. J.
AARON, J.
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