Aframian v. Superior Court CA4/1

Filed 8/18/20 Aframian v. Superior Court CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HOUSHANG AFRAMIAN et al., D077736
Petitioners, (San Diego County
Super. Ct. No. 37-2013-00078078-
v. CU-BT-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
OVERLAND DIRECT, INC.,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Joel R. Wohlfeil, Judge.
Petition granted.
Epport, Richman & Robbins, LLP, Stephen C. Huskey, and Christopher
R. Nelson, for petitioners.
No appearance for respondent.
Blanchard, Krasner & French and John F. Whittemore for real party in
interest.
Houshang, Maria, and Amir Aframian petition for a writ of mandate to
compel the superior court to calendar their timely motion for summary
judgment for a hearing. We grant the petition.
BACKGROUND
The Aframians are defendants in one of several consolidated actions
pending in the superior court that were commenced by Overland Direct, Inc.
(Overland), to recover real property it alleges the Aframians and others
obtained by a fraudulent scheme. Trial was initially set for March 20, 2020,
but had to be continued due to the COVID-19 pandemic. At a hearing on
June 22, the superior court set trial for October 23 and took all motions off
calendar based on the motion cutoff date that had been set for the original
trial date.
On July 6, another defendant in the underlying actions applied ex parte
to recalendar the motion for summary judgment that it had filed earlier and
that the court had taken off calendar at the June 22 hearing. The court
granted the application and reset the hearing and also advised the parties
they could seek leave to file new motions on a showing of good cause. On July
8, the Aframians applied ex parte for leave to file a motion for summary
judgment and have it heard before trial. Finding the Aframians had not been
so diligent as the other defendant who was given a hearing date, the superior
court denied the application. The Aframians nevertheless filed the motion
and personally served it on Overland on July 10 with a tentative hearing date
of September 23.
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Two weeks later the Aframians petitioned this court for a writ of
mandate directing the superior court to vacate its order denying their
application and to schedule a hearing on their summary judgment motion.
We notified the parties we were considering issuing a peremptory writ in the
first instance and obtained a response from Overland. (Palma v. U.S.
Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.)
DISCUSSION
A party may move for summary judgment by serving the motion “at
least 75 days before the time appointed for hearing,” and the “motion shall be
heard no later than 30 days before the date of trial, unless the court for good
cause orders otherwise.” (Code Civ. Proc., § 437c, subds. (a)(2), (3).) “[T]he
30-day time limit on summary judgment hearings should be calculated based
on the trial date in existence when the motion is noticed regardless of
whether that date is the original trial date or not.” (Green v. Bristol Myers Co
(1988) 206 Cal.App.3d 604, 609.)
The applicable trial date here is October 23, 2020. Unless the superior
court for good cause orders otherwise any motion for summary judgment
must be heard by September 23, the date tentatively calendared by the
Aframians. With that hearing date and with personal service, the motion
had to be served by July 10, the date they personally served their motion on
Overland. The Aframians therefore satisfied the time requirements of Code
of Civil Procedures section 437c, albeit with no time to spare.
“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
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Cal.App.4th 324, 330; Wells Fargo Bank v. Superior Court (1988) 206
Cal.App.3d 918, 923.) The superior court therefore erred by refusing to
calendar the Aframians’ motion for a hearing.
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, the Aframians 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. (Code Civ. Proc., § 1088; Lewis v. Superior
Court (1999) 19 Cal.4th 1232, 1240-1241.)
DISPOSITION
Let a writ issue commanding respondent, immediately upon receipt of
the writ, to vacate its July 9, 2020 order refusing to calendar petitioners’
motion for summary judgment for hearing and to enter a new order setting
the motion for hearing on September 23, 2020, or as soon thereafter as the
motion may be heard, but no later than the date set for trial. The parties are
to bear their own costs of this writ proceeding. (Cal. Rules of Court, rule
8.493(a)(1)(B).)
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BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
AARON, J.
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