Ora v. The Grand Sherman Oaks CA2/1 ( 2024 )

Filed 1/25/24 Ora v. The Grand Sherman Oaks CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SCOTT DOUGLAS ORA, B324622
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18STCV02815)
v.
THE GRAND SHERMAN OAKS,
LLC et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kevin C. Brazile, Judge. Affirmed.
Scott Douglas Ora, in pro. per., for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Lann G. McIntyre, Tracy
D. Forbath and Steven G. Gatley for Defendants and
Respondents.
______________________
MEMORANDUM OPINION1
Plaintiff Scott Douglas Ora appeals the trial court’s entry of
summary judgment against him. Ora’s sole contention is that the
trial court failed to find good cause to hear the summary
judgment motion less than 30 days before trial as required by
Code of Civil Procedure section 437c, subdivision (a)(3) (section
437c(a)(3)).2
The court denied an initial summary judgment motion by
The Grand Sherman Oaks, LLC and Alliance Communities, Inc.
(collectively Defendants) without prejudice due to service errors.
At a hearing on the record with all parties present, the court
impliedly found good cause under section 437c(a)(3) by stating it
would permit Defendants to re-file their motion for summary
judgment and set it for hearing on a date the court then
specifically calendared more than 80 days in the future, but less
than 30 days before trial.
We disagree with Ora’s formalistic argument that we must
reverse because the trial court did not specifically use the words
“good cause” when finding it appropriate to set the hearing for
less than 30 days before trial and affirm the judgment.
1 Pursuant to California Standards of Judicial
Administration, section 8.1(1), we address this matter by
memorandum opinion. Accordingly, we discuss only those facts
and procedural history necessary to our resolution.
2 All unspecified statutory references are to the Code of
Civil Procedure.
2
PROCEDURAL BACKGROUND
In October 2018, Ora filed a complaint asserting claims
related to Defendants’ alleged failure to accommodate his
disability during renovations of an apartment building in which
Ora resided.
On March 3, 2022, Defendants filed a motion for summary
judgment and set it for hearing on May 19, 2022. At the time
Defendants filed this motion, trial was set to begin July 11, 2022.
Due to a typographical error in the service address, a hard copy
of the motion was not delivered to Ora until March 10, 2022. Ora
objected that service was untimely, and asserted he was not
obligated to oppose the motion on the merits because of the
untimely service. At the May 19, 2022 hearing, the trial court
agreed that service was defective. Given Defendants’ service
flub, however, the court continued the summary judgment
hearing to June 28, 2022. It also gave Ora until June 10, 2022, to
file an opposition to the summary judgment motion.
The May 19, 2022 hearing was not transcribed, and the
parties disagreed over whether the court required Defendants to
re-serve the summary judgment motion in advance of the
June 28, 2022 hearing date. Defendants understood Ora
acknowledged receipt of the motion at the May 19, 2022 hearing,
such that Defendants did not need to re-serve him, and served a
notice of ruling to that effect. This meshed with the court’s
decision to continue the hearing to June 28, 2022, and give Ora
until June 10, 2022 to oppose the motion; if the court ordered Ora
be re-served on May 19, 2022, those dates made no sense because
they did not come close to providing the mandatory 75-day notice
period required by section 437c, subdivision (a)(2).
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Ora, on the other hand, understood the court ordered that
Defendants re-serve him with the summary judgment motion.
The court’s minute order from the May 19, 2022 hearing
corroborated Ora’s understanding, as it stated, “Defendants are
to re-serve the [m]otion on [Ora] at the correct address and with
sufficient time to comply with the mandatory statutory notice
requirement.” We further observe that this portion of the
May 19, 2022 minute order (as opposed to the filing and hearing
dates it actually set) complied with our decision in Robinson v.
Woods (2008) 168 Cal.App.4th 1258. In Robinson, we held that
where a moving party notices a summary judgment hearing in
less than the statutorily required time, the 75-day notice period
must begin anew; the court cannot cure the defect by continuing
the hearing some lesser amount of time. (Id. at p. 1268; see
generally Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2020) ¶¶ 10:80.5-10.80.6, p. 10-
34.)
On June 10, 2022, in accord with the court’s order, Ora
filed an opposition on the merits to the summary judgment
motion. Ora’s opposition also asserted Defendants had failed to
comply with the statutory notice requirements. On June 20,
2022, Ora filed an objection to Defendants’ notice of ruling and
averred he was never re-served with Defendants’ summary
judgment motion as the court had ordered.
On June 21, 2022, the court continued the trial date from
July 11, 2022 to October 3, 2022.
On June 28, 2022, the court heard the motion for summary
judgment. Prior to the hearing, the court issued a tentative
ruling denying the motion without prejudice because Defendants
had not re-served Ora. At the hearing, unpersuaded by
4
Defendants’ argument that Ora waived any objection to improper
notice by filing an opposition on the merits, the trial court
affirmed its tentative ruling and denied the summary judgment
motion without prejudice.
At the conclusion of the June 28, 2022 hearing, Defendants
asked for an opportunity to re-file their summary judgment
motion given the service-related issues. After being reminded
that it had continued the trial date to October 3, 2022, the court
agreed to “hear [the summary judgment motion] within 30 days
of trial, but you need to get it on file right away.” Defendants
agreed to do so. Ora argued the motion still needed “to be
submitted with adequate time based on the statutory period . . .
[w]hich is 75 days and 30 days.” The court stated it was not
shortening the 75-day notice but was going to “let [the motion] be
heard within 30 days before trial.” The court then set the
summary judgment hearing for September 22, 2022, explaining
to Ora that the date was more than 80 days in the future. Ora
initially objected this was incorrect, but then apologized for
having miscounted the number of days until the hearing. Ora did
not argue there was no good cause to set the hearing within 30
days of trial or that the court failed to adequately articulate such
good cause when setting the summary judgment hearing.
Defendants filed and served their summary judgment
motion by overnight delivery the following day, June 29, 2022.
The motion was substantively identical to the one Defendants
previously filed, and which Ora had previously opposed on the
merits. On August 5, 2022, the court on its own motion
continued the summary judgment hearing from September 22,
2022 to September 27, 2022.
5
On September 2, 2022, Ora filed an objection contending
the summary judgment motion was procedurally improper
because the court had not found good cause to hear the motion
within 30 days of trial. Ora filed no opposition on the merits.
Before the September 27, 2022 hearing, the trial court
issued an initial tentative ruling denying the summary judgment
motion because it did not believe Defendants had obtained an
order of good cause to hear the motion less than 30 days from the
trial date. It then revised that tentative before the hearing to
grant the summary judgment motion, recalling that “on June 28,
2022, the [c]ourt did find good cause for the current [m]otion
date,” and that Ora had failed to oppose the motion on any other
grounds including failing to file an opposing separate statement.
On September 27, 2022, after hearing argument from the
parties, the court adopted the revised tentative as its final ruling
and granted Defendants’ summary judgment motion. With
regard to Ora’s argument that the court had not found good cause
to hear the motion less than 30 days before the trial date, the
ruling stated that “on June 28, 2022, the [c]ourt did find good
cause for the current [m]otion date and did so before the [m]otion
was noticed. While the [c]ourt did not specifically use the words
‘good cause[,’] this was the ultimate finding as the [c]ourt stated,
‘I’ll let you hear it within 30 days of trial . . . . Thus, the notice of
[m]otion is not invalid.”
Ora timely appealed following entry of judgment.
DISCUSSION
Ora does not assert the court erred in refusing to continue
the September 27, 2022 hearing for him to file a substantive
opposition once it overruled his procedural objection. Nor does he
contend no good cause in fact existed for hearing the summary
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judgment motion less than 30 days before trial. Ora’s sole
appellate claim is that the court failed to make the required
finding of good cause under section 437c(a)(3).
We review whether the trial court sufficiently found “good
cause” under section 437c(a)(3) for abuse of discretion. (Lerma v.
County of Orange (2004) 120 Cal.App.4th 709, 717.) “We
approach a summary judgment appeal, as with any appeal, with
the presumption the appealed judgment is correct.” (Aton Center,
Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214,
1230.) Because we presume the judgment is correct, “ ‘ “all
intendments and presumptions are indulged in favor of its
correctness.” [Citation.]’ [Citation.]” (Association for Los Angeles
Deputy Sheriffs v. County of Los Angeles (2023) 94 Cal.App.5th
764, 776-777.) “Therefore, ‘ “ ‘[o]n review of a summary
judgment, the appellant has the burden of showing error, even if
he did not bear the burden in the trial court.’ ” ’ [Citation.]”
(Aton Center, Inc., supra, at p. 1230.)
We reject Ora’s contention that the trial court’s failure to
specifically use the words “good cause” when setting the
summary judgment hearing meant it failed to comply with
section 437c(a)(3). “Good cause” means a legally sufficient reason
for the court’s scheduling order and not an obligatory phrase
that, unless uttered by the court, mandates reversal. As our
Supreme Court has noted in another context, “The concept of
good cause should not be enshrined in legal formalism; it calls for
a factual exposition of a reasonable ground for the sought order.
The good cause may be equated to a good reason for a party’s
failure to perform that specific requirement,” here, the default
rule that a summary judgment hearing must occur more than 30
7
days before trial, “from which [it] seeks to be excused.” (Waters v.
Superior Court (1962) 58 Cal.2d 885, 893.)
A finding of good cause under section 437c(a)(3) need not be
express; it can be implied. (Armato v. Baden (1999) 71
Cal.App.4th 885, 899.) “ ‘ “[I]n determining the meaning of ‘good
cause’ in a particular context, the courts utilize common sense
based upon the totality of the circumstances,” which “include[s]
the purpose of the underlying statutory scheme.” ’ [Citation.]”
(Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 527.) Summary
judgment “is not a disfavored remedy. [Citation.] To the
contrary, summary judgment motions commonly benefit all sides,
no matter who wins: the process of summary judgment is more
economical than trial, and the ruling usually gives the parties
helpful information about the true value of the case, which can
facilitate settlement.” (Coast Hematology-Oncology Associates
Medical Group, Inc. v. Long Beach Memorial Medical Center
(2020) 58 Cal.App.5th 748, 753.)
The trial court was aware that it could not set the
summary judgment hearing for less than 30 days before trial
without good cause. “ ‘It is a basic presumption indulged in by
reviewing courts that the trial court is presumed to have known
and applied the correct statutory . . . law in the exercise of its
official duties.’ [Citation.]” (Keep Our Mountains Quiet v. County
of Santa Clara (2015) 236 Cal.App.4th 714, 741.) We likewise
deem Ora and Defendants to have known applicable procedural
rules such as section 437c(a)(3). (E.g., ViaView, Inc. v. Retzlaff
(2016) 1 Cal.App.5th 198, 208.) Even without such presumptions,
the record amply demonstrates both the court and the parties
understood section 437c(a)(3)’s requirements. Ora pointed out to
the trial court the code requirements regarding the hearing date.
8
The court then found it appropriate to set the hearing date more
than 75 days in the future, but less than 30 days before trial. In
doing so, it impliedly found good cause for setting that hearing
date because there was no way for the court to have set such a
date unless it believed there was good cause to do so.3
We reject Ora’s claim that he had no opportunity to object
to the court’s good cause finding. Ora was present when
Defendants made the scheduling request. Ora’s statements at
that scheduling hearing make clear he was aware that absent
good cause, the court could not set the hearing for less than 30
days before trial. Given this, when the court indicated its
intention to set the hearing less than 30 days before trial because
of the typographical error that led to Defendants’ summary
judgment motion not yet being heard on the merits, Ora was
aware the court believed good cause existed for granting that
scheduling request. Ora did initially object the hearing was not
at least 75 days in the future. He did not object to the hearing
date’s proximity to the trial date or argue a lack of good cause
after the court indicated it was going to set the hearing for late
3 Ora also argues section 437c, subdivision (g) required the
court to prepare either a written order or record its good cause
determination by court reporter. That subdivision requires the
recordation of certain determinations by court reporter or written
order when a court grants or denies summary judgment. (Ibid.)
Assuming without deciding that Ora is correct we should import
this requirement to an unrelated subdivision of section 437c, a
court reporter transcribed the proceeding at which the court
ordered the summary judgment hearing set for hearing less than
30 days before trial.
9
September 2022 despite having the opportunity to do so before
the hearing concluded.
Ora articulates no facts suggesting there was no good cause
for the court’s scheduling order. Nor does the record demonstrate
the court abused its discretion in finding good cause to set the
summary judgment hearing when it ultimately did. Ora received
Defendants’ summary judgment motion back in March 2022.
Due to a typographical error in Ora’s service address, the
summary judgment motion was denied without prejudice. When
the motion was denied, there was still more than 75 days before
trial for the court to hear the motion. Defendants had been
seeking a summary judgment hearing since March 2022 and had
yet to have one on the merits before any trial began. Ora
articulated no prejudice to the trial court (or in his opening brief)
from the setting of the date less than 30 days before trial.4 The
4 Ora’s reply brief does assert prejudice, but “[w]e do not
consider arguments raised for the first time in a reply brief.”
(Committee to Relocate Marilyn v. City of Palm Springs (2023) 88
Cal.App.5th 607, 636 fn. 8.) Considering such arguments is
particularly inappropriate here not only because Ora waiting
until his reply brief deprived Defendants of an ability to respond.
Ora never articulated any alleged prejudice to the trial court
when it specially set the summary judgment hearing, and the
court thus had no opportunity to consider Ora’s claims. Even if
we considered Ora’s tardy claims of prejudice, we find them
unpersuasive. Ora asserts prejudice because he had limited time
to prepare an opposition given trial preparation obligations and
claims he could not simply re-file his prior opposition because
allegedly “substantial” updates to it, which Ora entirely declines
to specify, were necessary to account for (again) unspecified case
developments. “[P]rejudice is not presumed and the burden is on
the appealing party to demonstrate that prejudice has occurred.”
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totality of circumstances thus supports that the trial court did
not abuse its discretion in concluding there was good cause to set
the summary judgment hearing when it did.
Because the court implicitly found good cause before
permitting Defendants to notice their summary judgment motion
for less than 30 days before trial, we find Ora’s reliance on
Robinson inapposite. In Robinson, the defendants noticed their
summary judgment motion within 30 days of the trial date
without first obtaining permission from the trial court. (Robinson
v. Woods, supra, 168 Cal.App.4th at p. 1259.) The defendants
also failed to give the requisite 75-day notice prior to the hearing.
(Id. at p. 1260.) Because the motion was procedurally improper,
the plaintiffs filed an opposition objecting only to the improper
notice and not arguing the merits. (Id. at p. 1267.) The trial
court moved the hearing date back a few days to attempt
addressing the 75-day issue. (Id. at p. 1261.) The trial court
waited until that continued hearing to find good cause for
hearing the motion less than 30 days before trial, which meant
the plaintiffs “had no time to prepare an opposition on the merits
after the court granted the defendants’ request.” (Id. at p. 1268.)
The court then granted summary judgment based on the lack of
opposition on the merits—a sequence of events we held was a
“due process violation and abuse of discretion.” (Ibid.)
Such concerns are simply not present here. There is no
dispute Defendants complied with the 75-day notice requirement
(Adams v. MHC Colony Park, L.P. (2014) 224 Cal.App.4th 610,
614.) Ora’s conclusory statements lack both specifics and record
support, and thus do not demonstrate prejudice, much less the
degree of prejudice necessary to establish the court’s scheduling
of the summary judgment hearing was an abuse of discretion.
11
in section 437c, subdivision (a)(2) including required additional
days for Ora being served by overnight delivery. As explained
above, the trial court implicitly found good cause under section
437c(a)(3) and specially set the hearing date before it permitted
Defendants to re-file their summary judgment motion. Despite
proper notice, Ora objected only to the purported lack of a good
cause finding and did not oppose the motion on the merits. Ora
had in excess of the full statutory 75-day period to prepare an
opposition on the merits; indeed, he had previously prepared one
to a substantively identical defense motion. The denial of due
process and abuse of discretion that occurred in Robinson did not
occur here.5 Ora was not deprived of an opportunity to respond;
he made a tactical decision not to do so despite a summary
judgment scheduling order that complied with section 437c(a)(3).
5 Ora’s reference to an April 2, 2021 unpublished superior
court minute order in Exact Staff, Inv. v. Peking Noodle Co., case
No. 19STCV38680, is not citable authority we consider. (Cal.
Rules of Court, rule 8.1115.) In any event, it is factually
distinguishable for the same reason as Robinson, namely that the
party moving for summary judgment in Exact Staff did not seek
court permission before setting its summary judgment motion for
hearing less than 30 days before trial.
12
DISPOSTION
The judgment is affirmed. Defendants are awarded their
costs on appeal.
NOT TO BE PUBLISHED.
WEINGART, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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