Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. BC385458, Kenneth R. Freeman, Judge.
Ahsan Mohiuddin, in pro. per., for Plaintiff and Appellant.
Wolflick & Simpson, David B. Simpson and Christina A. Mitchell for Defendants and Respondents.
CROSKEY, J.
Plaintiff Ahsan Mohiuddin (plaintiff) appeals from a judgment of dismissal entered in favor of his former employer after the employer’s motion for summary judgment was granted. The defendants in this case have been identified by the parties using various titles, including Raytheon Company, Raytheon Electronic Systems, Raytheon Space & Airborne Systems, and Raytheon Systems Support Company. For the sake of simplicity, we will identify them in this opinion simply as defendants.
In this appeal, plaintiff contends he was not afforded statutory timely notice when defendant served its motion for summary judgment on him. Plaintiff also contends his peremptory challenge to the trial judge was timely and the judge erred when he ruled it was not timely made. Our review of the appellate record convinces us that these challenges to the judgment of dismissal are not well taken. We will therefore affirm the judgment.
Unless otherwise indicated, all references herein to statutes are to the Code of Civil Procedure. Section 437c, subdivision (a) states that notice of a summary judgment motion and the moving party’s supporting papers “shall be served on all other parties to the action at least 75 days before the time appointed for hearing.” However, unless personal service of the notice and supporting papers is made, the 75 days is extended, with the number of additional days dependent on how and to where the papers are sent. Thus, when service is by mail the number of additional days depends on whether the mail is sent to an address inside of California, outside of California but inside the United States, or outside the United States; and when service is 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.)
BACKGROUND OF THE CASE
Plaintiff’s initial complaint was filed on February 13, 2008. The court filing clerk placed a notice on the face of the complaint stating that the case was assigned to Judge Kenneth Freeman in Department 64 of the superior court. Thereafter, plaintiff filed amended complaints as successive demurrers by defendants were sustained. The third amended complaint is operative one. It was filed on November 24, 2008.
Except for a period of approximately three weeks, plaintiff represented himself during the trial court proceedings. He also represents himself in this appeal.
In the meantime, pursuant to notice sent by the court to plaintiff on March 17, 2008, a case management conference was held on May 20, 2008, in Department 64 with Judge Freeman. On June 30, 2008, plaintiff filed a Code of Civil Procedure section 170.6 peremptory challenge to the judge. Defendants filed opposition to the challenge, asserting it was not timely filed. The challenge was denied by the court on that ground.
Trial was set for June 3, 2009. Defendants filed a motion for summary judgment on February 18, 2009. Hearing on the motion was originally scheduled by the court for May 4, 2009. On February 23, 2009, defendants filed an ex parte application asking that the summary judgment motion be set within 30 days of trial so that defendant could be in compliance with the 75 day service rule (fn. 1, ante), for summary judgment motions. Plaintiff filed opposition to the ex parte application, asserting that service on him of the summary judgment moving papers was not timely. The court granted defendants’ ex parte application and the hearing on the summary judgment motion was changed from May 4 to May 7, 2009. Plaintiff filed a motion for reconsideration of the court’s decision to set the case for hearing within 30 days of trial. He again asserted improper service of the summary judgment papers. Then plaintiff noticed a motion to strike defendants’ summary judgment papers on grounds of improper service. Defendants opposed both motions. The motions were denied, as was plaintiff’s motion for renewal of the order denying his motion for reconsideration.
Section 437c, subdivision (a) states that motions for summary judgment “shall be heard no later than 30 days before the date of trial unless the court for good cause orders otherwise.” At the hearing on defendants’ ex parte application to change the summary judgment hearing date to a date that was within 30 days before trial, the court indicated that it routinely grants relief from that 30-day rule. When plaintiff objected saying that section 437c requires a showing of good cause for such relief and defendant had not demonstrated good cause in its ex parte application papers, the court stated that it would read those papers and if it found good cause it would make a specific order to that effect. The court’s minute orders shows that the court took the matter under submission and found good cause for granting the ex parte application for relief from the 30-day rule.
On April 13, 2009, plaintiff filed a motion seeking to amend his third amended complaint by adding five causes of action. Four days later he filed an ex parte application to have the summary judgment motion hearing changed to May 25, 2009 or thereafter. He asserted that if the hearing on defendants’ summary judgment motion were held on its scheduled day then he would have to file his opposition to the summary judgment motion before he had “the fruits of his pending discovery.” The ex parte application was denied. Regarding plaintiff’s outstanding discovery, defendants moved for a protective order respecting plaintiff’s having scheduled eight depositions to be taken on April 30, 2009. Seven of the deponents were current or former employees of defendants. Noting that plaintiff’s opposition to the motion for summary judgment had to be filed on or before April 23 and thus plaintiff would not be able to use the deposition testimony in support of that opposition, defendants asked that the depositions be re-set for a date after the summary judgment motion was decided and if such motion was denied then defendants would not object to scheduling the depositions after the usual discovery cut-off date, May 4. The protective order motion was accompanied by an ex parte application for an order shortening time to hear the motion. Plaintiff opposed both the motion and the ex parte application. The ex parte application was granted on April 21 and the motion for a protective order was set for hearing on April 29. The trial court granted the protective order in part, ruling that the parties would determine which depositions they could realistically take by April 30, 2009 and the others would be scheduled for another day. Plaintiff’s motion for leave to amend his third amended complaint to add new causes of action was heard and denied on May 4, 2009. Plaintiff did not appear for that hearing.
Plaintiff contends the trial court abused its discretion when it denied his several requests to have the hearing on the summary judgment motion continued so that he could complete his discovery prior to the day when his opposition to the summary judgment motion had to be filed and served. However, plaintiff had over a year to take the depositions. Moreover, as defendants explained in their opposition to having the hearing date of the summary judgment motion continued: by statute the last day to hear a summary judgment motion is 30 days before trial absent good cause for it to be heard later, and by statute 30 days before the date initially set for trial is also the day on which discovery is to be completed, and thus opposition to a summary judgment motion is statutorily due before the discovery cutoff date.
On May 7, 2009, at the hearing on the motion for summary judgment, the trial court took under submission evidentiary objections made by plaintiff in connection with his opposition to that motion, and granted the summary judgment motion subject to the court’s decision on the evidentiary objections. The evidentiary objections were overruled on June 1, 2009, and a judgment dismissing the case was signed and filed on June 11, 2009. On June 26, 2009, plaintiff filed a motion for reconsideration of the judgment or alternatively to have the judgment vacated and the case set for a new trial. The motion was denied on August 17, 2009. In the meantime, plaintiff had filed a petition for review with the California Supreme Court. That petition was denied. Plaintiff filed this appeal from the summary judgment on September 15, 2009.
DISCUSSION
1. Defendants’ Summary Judgment Moving Papers Were Timely Served
As noted in footnote one, section 437c, subdivision (a) provides that moving papers for a summary judgment motion must be served “at least 75 days before the time appointed for hearing, ” and unless personal service of the papers is made, the 75 day requirement is extended. In the instant case, when defendant submitted its ex parte application papers seeking to have the hearing on the summary judgment motion changed to a later date, defendants’ attorney, David Simpson, stated in a declaration that defendants were seeking that change of hearing date as a cautionary measure in case the trial court or an appellate court would find that when defendants first served their summary judgment moving papers on plaintiff they had not provided timely service of those papers.
According to Simpson’s declaration, it was plaintiff’s failure to cooperate with respect to defendants’ attempts at discovery that caused a delay in their preparation of the summary judgment moving papers. Specifically, on January 27, 2009, which was the day of the hearing on defendants’ demurrer to plaintiff’s third amended complaint, plaintiff informed Simpson that he would not appear for his deposition which was scheduled for the following day, January 28. Then, plaintiff failed to bring to the rescheduled deposition any of the documents listed in the deposition notice. On the third scheduled date of his deposition, plaintiff brought only some of such documents and he failed to bring his long overdue responses to discovery propounded on him by defendant. Despite plaintiff’s failings, Simpson had the summary judgment moving papers completed by the 75th day before the hearing date of the summary judgment motion. That 75th day was February 18, 2009, and under section 437c, subdivision (a), personal service on plaintiff of the moving papers was therefore required to be made on that day.
Simpson states in his declaration that on the morning of February 18, plaintiff sent a facsimile message to attorney Simpson and informed the attorney that he had lost the interrogatories and request for production of documents that the attorney had served on him in December 2008. Plaintiff asked that Simpson send him duplicates. Simpson replied with his own facsimile message that a messenger would drop the duplicates off at plaintiff’s home. Plaintiff replied by facsimile that he would be taking his car for repairs and would be gone for the day but the duplicate discovery requests could be left inside the screen door of his apartment. Simpson followed up with a facsimile request that plaintiff agree to have the messenger leave the summary judgment papers inside the screen door too, but plaintiff did not reply to that request. Therefore Simpson sent the messenger to plaintiff’s home with the summary judgment papers to wait for plaintiff. By 8:00 p.m., plaintiff had not returned home so the messenger left the summary judgment papers inside the screen door.
Simpson states in his declaration that the following day, February 19, plaintiff sent a facsimile message to Simpson saying that he had received the request that the messenger be allowed to leave the summary judgment papers inside the door but plaintiff chose to not respond to the request. Plaintiff also stated in his message that a neighbor took the summary judgment papers and called plaintiff about the papers that night but when the neighbor told plaintiff who the papers were from, plaintiff chose to not retrieve them from the neighbor until the following morning. Simpson sent plaintiff a facsimile letter on February 19 asking if plaintiff would accept the February 18 evening service of the summary judgment papers as timely personal service and plaintiff responded he would not accept it. Because of plaintiff’s refusal to accept the February 18 delivery to his home as personal service, Simpson called the court and reserved May 7 as a new hearing date for the summary judgment motion, and Simpson re served plaintiff with the summary judgment moving papers. They were re-served by Simpson on February 19 by overnight mail.
It is true, as plaintiff argued in the trial court, that by leaving the summary judgment moving papers in plaintiff’s screen door at approximately 8:00 p.m. on February 18, defendant’s messenger did not serve the papers on a person 18 years or older between the hours of between 8:00 a.m. and 6:00 as prescribed in section 1011’s provisions for service of notice of motion. However, it appears to us that those two requirements were enacted to avoid court papers being given to children and avoid persons being inconvenienced with service of papers at all hours of the day and night, and here, plaintiff was not inconvenienced by someone serving papers after 6:00 p.m. on February 18 since he did not appear to be home, and the papers were not left with a child. Indeed, they were taken in for safe keeping by a neighbor. Moreover, plaintiff could have received them that very evening but he chose to retrieve them the next morning. A trial court’s rulings on notice issues are reviewed for abuse of discretion. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261; Knapp v. Doherty (2004) 123 Cal.App.4th 76, 92 [notice of foreclosure sale served “slightly less than [the statutory] three months after recordation of the Default Notice” was found sufficient as it “provided Borrowers with 29 days’ notice of the trustee’s sale”.) Therefore, if the trial court had used its discretion to specifically find that plaintiff had been effectively served with the moving papers on February 18 when they were left in the door at his home we would find no abuse of discretion. In any event though, the papers were reserved on him for the May 7, 2009 hearing date.
The appellate record shows that the summary judgment moving papers that were given to Fed Ex on February 19 were then delivered to plaintiff on February 20. They state a hearing date of May 7, 2009. Section 1013 states that service was complete at the time defendant deposited the papers with Fed Ex. Because (1) the papers were served on February 19, (2) the new hearing date for the summary judgment motion was May 7 and (3) the span of time from February 19 to May 7 is 78 days, that fits the requirements of section 437c that service be made at least 75 days before the hearing and that service by overnight delivery increase that 75 days by two days. Service was made 77 days before the hearing and was thus proper. Those facts make the instant case far different from the procedural facts in Robinson v. Woods, supra, 168 Cal.App.4th 1258.
In Robinson, the trial court continued a hearing on a summary judgment motion in an attempt to cure the service of notice of that motion that was defective for lack of the proper number of days between the service of the notice of motion and the date of the hearing. Applying an abuse of discretion standard to the trial court’s ruling on the notice issue, the Court of Appeal ruled the trial court abused its discretion and violated due process because it had no authority to shorten the section 437c notice period absent the consent of the parties, including no authority to do so by continuing the hearing for four days. Rather, said the reviewing court, when the defendants failed to accomplish statutory service of the motion the only options the trial court had were to continue the trial date so that the moving party could affect proper service, or take the summary judgment motion off calendar.
Here, defendant did re-serve its summary judgment moving papers on plaintiff to make the service fit the new date which defendant asked the court to assign to the summary judgment motion hearing. The clerk’s transcript contains defendant’s “confirming notice of motion and motion for summary judgment.” In that confirming notice of motion defendant stated that (1) its ex parte application to specially set the summary judgment motion hearing date within 30 days of trial had been granted, (2) the new hearing date for the summary judgment motion was May 7, 2009, and (3) its summary judgment motion was based on that confirming notice of motion and on the “earlier” notice of motion, points and authorities, separate statement, and exhibits that were “filed herein on February 18, 2009 (copies of conformed face pages attached), and served via overnight courier on Plaintiff on February 19, 2009 (copies of proofs of service and Fed-x print-out also attached).”
2. Plaintiff’s Section 170.6 Motion to Disqualify the Judge Assigned To This Case Was Not Timely
As noted above, this suit was filed on February 13, 2008, and the filing clerk noted on plaintiff’s complaint that the case was assigned to Judge Freeman. On June 30, 2008, plaintiff filed a peremptory challenge (§ 170.6) to Judge Freeman, and that challenge was denied. There is a minute order stating it was denied on July 7, 2008 on the grounds it was not timely. The peremptory challenge was again addressed at a hearing held on July 9, 2008, and the trial court again denied the challenge as being untimely. At that July 9 hearing, plaintiff acknowledged that he saw the notice of assignment that the clerk had written on the face of the complaint. However, plaintiff argued that the clerk’s writing the assignment of Judge Freeman on the complaint was not sufficient to trigger the section 170.6 requirement that peremptory challenges be made within 10 days after notice of the assignment of an all purpose judge. On July 15, 2008, defendant served plaintiff with a notice of ruling for that July 9 hearing and the notice of ruling specifically states that plaintiff’s section 170.6 challenge to Judge Freeman was denied as untimely.
Section 170.3, subdivision (d) states that rulings on the disqualification of a judge are not appealable and must be challenged by a petition for writ of mandate and such petition must be served and filed “within 10 days after service of written notice of entry of the court’s order determining the question of disqualification [and i]f the notice of entry is served by mail, that time shall be extended as provided in subdivision (a) of Section 1013.” This provision that requires that a challenge to the determination of disqualification of a judicial officer be made by writ and not by appeal was determined to be applicable to both challenges for cause and peremptory challenges. (People v. Hull (1991) 1 Cal.4th 266, 269 et seq.) Here, plaintiff did not file a writ to challenge the denial of his challenge to Judge Freeman.
DISPOSITION
The judgment of dismissal from which plaintiff has appealed is affirmed. Costs on appeal to defendant.
We Concur: KLEIN, P. J., KITCHING, J.