Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. M77431
Bamattre-Manoukian, ACTING P.J.
I. INTRODUCTION
Appellant Jumah Thomas Moore-Ali, a self-represented litigant, filed a civil complaint on December 14, 2005, alleging that during his incarceration at Salinas Valley State Prison, he required a special religious diet but he was not transferred to another prison facility equipped to accommodate his special religious dietary needs and he was not provided with medical treatment and care.
Appellant’s complaint contained the following causes of action: “General Negligence,” “Intentional Tort,” “Intentional Infliction of Emotional Distress,” “Professional Negligence,” and “Civil Rights Violation.”
Appellant named respondents Nola Grannis and Thomas Surges, among others, as defendants. Grannis and Surges filed a demurrer to the complaint, and the trial court sustained the demurrer with leave to amend. Appellant subsequently filed a first amended complaint on November 27, 2006, that did not include Grannis and Surges as defendants.
Although they were not named as defendants in the first amended complaint, respondents Grannis and Surges filed an answer and a motion for summary judgment. Appellant filed opposition to the motion contending, among other things, that he had eliminated Grannis and Surges from the first amended complaint and their motion for summary judgment should be denied.
After appellant filed his opposition, respondents Richard Hager, Alexander Meden, Alan Williams, Jeanne Woodford, and Charles Watson filed notices of joinder to the motion for summary judgment. The trial court granted the motion in favor of all respondents on the ground that appellant failed to file his civil action within six months from the date that he asserted his claim had been rejected by a public entity. (Gov. Code, § 945.6, subd. (a)(1).)
On appeal, appellant contends that his complaint was timely filed under the “prison-delivery rule” when he delivered the complaint to prison officials for mailing to the superior court.
In view of the procedural history in this case, we requested supplemental briefing from the parties regarding whether the trial court should have stricken Grannis and Surges’s answer to the first amended complaint and their motion for summary judgment, because Grannis and Surges were not named as defendants in appellant’s first amended complaint; whether the striking of the summary judgment motion would have any effect on the notices of joinder filed by respondents Hager, Meden, Williams, Woodford, and Watson; and whether the notices of joinder filed by these respondents constituted a motion for summary judgment by these parties. We received supplemental briefing from appellant and respondents.
We will reverse the judgment. As we will further explain, the motion for summary judgment should not have been granted in favor of Grannis and Surges because they were not named as defendants in the first amended complaint, appellant was not pursuing claims against them, and he did not want them included in the action. Second, respondents Hager, Meden, Williams, Woodford, and Watson were not entitled to summary judgment because their notices of joinder did not seek relief on their own behalf, were not tailored to the allegations and claims asserted against them, and were filed after appellant’s opposition so that appellant did not have an opportunity to respond. Therefore, summary judgment should not have been granted in favor of any respondent.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
Appellant filed a complaint on December 14, 2005, alleging that he “consumes a religious diet of religiously slaughtered meat, . . . halal meat, and it is against [his] religious tenets of Islam to be a vegetarian.” Appellant asserted that he “cannot accept irreligiously slaughtered meat meals or vegetarian meals without violating the religious dietary laws of Islam.” According to appellant, he “has not eaten the meat that is served to him by the defendants . . . since arriving at the Salinas Valley State Prison . . . on June 19, 2001, because the meat that is served is irreligiously slaughtered USDA meat which is against [his] Islamic religion to consume.” Appellant alleged that he “lost weight, suffers from hunger with stomac[h] hunger pains, and emotional distress from the deprivation of a full complete food tray . . . and religious meat.”
Appellant named the following defendants in the caption of his complaint: Jeanne Woodford, Director of California Department of Corrections; A. Lamarque, Warden of Salinas Valley State Prison; L. Scribner, Chief Deputy Warden; T. Surges, Chief, Inmate Appeals; N. Grannis, Chief, Inmate Appeals; A. Williams, Captain; G. Zavala, Captain; J. Peters, Captain; A. Meden, Counselor I; R. Hager, Counselor I; D.N. Much, Dietician; and Does 1 through 60, inclusive.
Appellant alleged that the “California Medical Facility at Vacaville” is equipped to accommodate his religious dietary needs. According to appellant, however, his request to be transferred to the Vacaville facility was denied by defendants Williams, Hager, and Meden. Further, the grievance he allegedly filed “in order to be accommodated a special religious diet meal and to be transferred to a prison facility that is equipped to accommodate [his] special religious dietary needs” was allegedly denied by defendants Woodford, Lamarque, Scribner, Surges, Grannis, Zavala, and Peters. Appellant also claimed that defendant Much “failed to provide medical treatment and care to [him] by providing religious meat or a religious diet. . . .”
Appellant also alleged that he filed a “state tort claim” on September 16, 2004, “against the denial of a transfer to a facility, CMF-Vacaville, that is able to accommodate [his] special religious dietary needs.” Appellant asserted that the “Government Claims Board” had rejected his claim on February 24, 2005, and gave him six months, or until August 24, 2005, to file a “court action.”
The five causes of action set forth in the complaint included “General Negligence,” “Intentional Tort,” “Intentional Infliction of Emotional Distress,” “Professional Negligence” regarding an alleged failure to provide medical treatment and care, and “Civil Rights Violation.” Appellant sought, among other things, monetary damages and “other and further relief as may be proper.”
B. Demurrer
Respondents Grannis and Surges filed a demurrer to the complaint. Among other things, they contended the complaint was barred because appellant did not comply with the pre-filing requirement for claims against state employees by presenting a claim concerning his religious diet or transfer request to the Victim Compensation and Government Claims Board (the Board) before filing his civil action or, if a claim had been presented to the Board, by filing his civil action within six months of the claim being rejected by the Board. Appellant opposed the demurrer. The trial court sustained the demurrer, ruling that appellant failed to demonstrate that he filed the civil action within six months of a public agency rejecting his claim (Gov. Code, § 945.6, subd. (a)(1)), and thus he failed to state a cause of action. Appellant was given leave to amend the complaint.
C. First Amended Complaint
Appellant filed a first amended complaint on November 27, 2006, which did not name Grannis and Surges as defendants. Other changes included adding Watson as a defendant and the allegation that Watson “failed to provide medical treatment and care to [appellant] by providing religious meat or a religious diet . . .” and deleting the cause of action for “Civil Rights Violation.”
Appellant named the following defendants in the caption of his first amended complaint: J. Woodford, Director of California Department of Corrections; A. Lamarque, Warden of Salinas Valley State Prison; L. Scribner, Deputy Warden; A. Williams, Captain; G. Zavala, Captain; J. Peters, Captain; A. Meden, Counselor I; R. Hager, Counselor I; D. Much, Dietician; C. Watson, Dietician; and Does 1 through 60, inclusive.
Appellant also added the following allegations: he “timely filed this complaint by mailing it legal mail from the Salinas Valley State Prison after a correctional officer signed the sealed envelope enclosing this complaint and summons, and mailing it all on August 14, 2005,” to the superior court; the superior court issued a minute order on September 16, 2005, informing him that it received his civil complaint and application for waiver of court fees and costs but “was unable to process the civil complaint and application without a certified trust statement and certificate of funds, see exhibit A, and sent this minute order to the plaintiff on October 19, 2005. See exhibit B”; he “sent the civil complaint, summons, and fees waiver application to the prison trust office” on October 26, 2005, “for certification statements and certificate, and on October 27, 2005, the prison trust offi[ce] completed trust statement and certificate, and mailed the civil complaint, summons, and waiver of fees and cost applications” to the superior court for him.
Attached to the first amended complaint as exhibit A is an order dated September 16, 2005, stating: “The court has received Petitioner/Plaintiff’s application for Waiver of Court . . . Fees and Costs [in forma pauperis application]. The court is unable to process this application without further information. Petitioner/Plaintiff must submit: (1) a six month certified trust account statement; and (2) a certificate of funds in prisoner’s account, as required by Government Code Section 68511.3(e) . . . .” Attached as exhibit B to the first amended complaint is a certificate of mailing for an “ORDER,” indicating it was mailed by the superior court to appellant on October 19, 2005.
D. Motion for Summary Judgment by Grannis and Surges
Although they were not named as defendants in the first amended complaint, Grannis and Surges filed an answer to the first amended complaint and a motion for summary judgment on December 5, 2006. The summary judgment motion was set for hearing on February 23, 2007. Grannis and Surges provided notice that neither they, nor their counsel, intended to appear at the summary judgment hearing, and that they would submit the matter without an appearance.
In the memorandum of points and authorities supporting the motion for summary judgment, Grannis and Surges contended: (1) appellant is litigating the same claims against Grannis in another civil action and thus Grannis is entitled to an order of abatement and, pursuant to Code of Civil Procedure section 597, an interlocutory judgment in her favor; (2) appellant did not file a claim with the Board regarding his religious diet or request for transfer in the year preceding the filing of the instant civil action; (3) assuming, as asserted by appellant, that he filed a claim and the claim was rejected by the Board on February 24, 2005, appellant did not file his civil action until December 14, 2005, after expiration of the six-month deadline by which the action must be commenced (Gov. Code, § 945.6, subd. (a)(1)); (4) appellant failed to allege any wrongdoing by Grannis or Surges, and failed to identify a statutory basis that would support a claim for relief against them; (5) appellant failed to plead personal involvement by Grannis and Surges in the actions forming the basis of his claims; and (6) Grannis and Surges are entitled to “qualified immunity” because appellant failed to allege any facts indicating that they failed to conform to a mandatory duty (Gov. Code, § 820.2).
The separate statement supporting the motion contained two facts: (1) the Board “has no record of a claim filed by plaintiff on September 16, 2004,” and (2) “[n]one of the claims filed by plaintiff in the twelve month period prior to initiation of this suit concern his religious diet or his request to transfer to another institution.”
In a declaration supporting the motion, counsel for Grannis and Surges stated that she caused a request to be sent to the Board for a certified copy of the claim that appellant filed on September 16, 2004, but the Board had no record of such a claim. Counsel stated that she requested copies from the Board of all claims filed by appellant during the 12-month period prior to December 14, 2005, the date that appellant initiated this civil action. Counsel attached to her declaration the claims that she received in response to the request, and she stated that none of the claims concerned appellant’s religious diet or his request to transfer to another institution.
E. Opposition
Appellant filed opposition on December 28, 2006, including a memorandum of points and authorities, separate statement, declaration, and several exhibits. First, appellant argued that he “is not pursuing his claims in the previously filed case . . . against the same defendants as in this case at hand . . . .”
Second, appellant contended the motion for summary judgment by Grannis and Surges “should be dismissed, denied and stricken.” Appellant explained that he had “eliminated” Grannis and Surges from the first amended complaint.
Third, appellant insisted that he had complied with the pre-filing requirements of the government claims statutes. In a declaration, appellant stated that he had presented a claim to the Board on February 16, 2004. Appellant explained that in the first amended complaint, he had “mistakenly put ‘September 16, 2004’ as the incorre[ct] date that he filed the Board claim when, in fact it was on February 16, 2004, when [he] actually filed the initial Board claim pertaining to the denial of a religi[ous] diet and transfer.” He further stated that the Board had rejected the claim on February 24, 2005, and he provided a copy of a letter purportedly showing the rejection of this claim by the Board. Appellant argued that he had “filed” his civil action within six months of the Board’s rejection of the claim because, as explained in his declaration, he had “timely delivered” his civil complaint to prison officials for mailing on August 19, 2005. He indicated that he had mistakenly alleged the date of delivery as August 14, 2005 in the first amended complaint. Appellant stated that the superior court returned the complaint with an order, dated September 16, 2005, informing him that the fee waiver application could not be processed without a “certified trust account statement” and a “certificate of funds in prisoner’s account.” He indicated that the superior court’s order was delivered to him in prison on October 25, 2005. Appellant asserted that he “complied” with the order and the complaint was “remailed” to the court on November 6, 2005. He provided copies of the fee waiver application and the first page of his complaint, which indicated that the documents were filed on December 14, 2005. He also provided a copy of the order granting his fee waiver application.
Fourth, appellant sought leave to file a second amended complaint to state a claim for “ ‘personal injury’ pursuant to” Code of Civil Procedure section 335.1 against the defendants. Appellant provided a copy of the proposed second amended complaint, which also corrected or deleted the dates that appellant claimed were incorrect in the first amended complaint.
Along with his opposition papers, appellant, who was still incarcerated, filed a notice indicating that he would submit the matter without appearing for the hearing on the summary judgment motion.
F. Notice of Joinders to Summary Judgment Motion
On January 25, 2007, respondents Hager, Meden, Williams, and Woodford together filed an answer to appellant’s first amended complaint and a notice of joinder in the motion for summary judgment by Grannis and Surges.
On February 7, 2007, respondent Watson also filed an answer to appellant’s first amended complaint and a notice of joinder in the motion for summary judgment by Grannis and Surges.
G. Reply in Support of Summary Judgment Motion
On February 16, 2007, Grannis and Surges, and the five respondents who filed notices of joinder, filed a reply brief in support of the summary judgment motion.
H. Appellant’s Motion to Consolidate
While briefs were being filed concerning the motion for summary judgment, appellant filed a motion on January 3, 2007, to consolidate this case (case No. M77431) with another civil case that he had filed in Monterey County Superior Court (case No. M70259) and for leave to file an amended complaint that would incorporate the allegations of both cases into one pleading. Opposition was filed in each case by some of the defendants.
Appellant filed a separate appeal in case No. M70259. (Moore v. Rimmer (July 8, 2008, H031632) [nonpub. opn.].) The defendants who, at some point, were simultaneously named in both case No. M70259 and case No. M77431 include Lamarque, Grannis, Williams, Much, and Watson.
On our own motion, we take judicial notice of appellant’s motion to consolidate that was filed in case No. M70259 on January 3, 2007. (Evid. Code, § 452, subd. (d).)
On our own motion, we take judicial notice of the opposition filed in case No. M70259 on February 7, 2007. (Evid. Code, § 452, subd. (d).)
On February 20, 2007, appellant filed a reply brief in support of his motion to consolidate and for leave to file an amended complaint. Appellant also provided another proposed second amended complaint containing additional changes.
I. Trial Court’s Ruling
The trial court took the motions under submission on February 23, 2007. The trial court signed a written “Ruling,” dated February 27, 2007, granting “Defendants’ Motion for Summary Judgment.” The court noted that although the parties disputed whether appellant “filed a claim with the Government Claims Board, there is no dispute that the complaint was subsequently filed in this Court after the six-month deadline imposed by Government Code section 945.6(a)(1).” The court explained: “Here, Plaintiff provided evidence that he received a claim rejection letter dated February 24, 2005 from the Government Claims Board. . . . Plaintiff urges that the letter refers to the incident at bar and that he attempted to file the complaint in Monterey County Superior Court on August 19, 2005. Plaintiff, a pro se prisoner, does not dispute that the Court refused to file his complaint on that date because it lacked paperwork necessary to process the fee waiver application. Plaintiff admits he resubmitted the complaint with the required documents, but not until December 14, 2005. [¶] Therefore, there is no triable issue of material fact as to whether Plaintiff abided by Gov. Code section 945.6(a)(1). He did not. The complaint was ultimately filed well over six months after Plaintiff received the claim rejection letter from the Board. Plaintiff’s assertion that the filing deadline should be excused is rejected as compliance therewith is mandatory and strictly construed.”
We note that Government Code section 68511.3 and California Rules of Court, rules 3.50 through 3.63 (formerly rule 985) apply to proceedings in forma pauperis. We observe that “[s]ubdivision (e) of [Government Code] section 68511.3 creates a special regime for prison inmates who seek permission to proceed in forma pauperis.” (Sanders v. Yarborough (2006) 137 Cal.App.4th 764, 767.)
In view of its ruling on the motion for summary judgment, the trial court denied appellant’s motion to consolidate and for leave to file a second amended complaint.
Appellant filed a notice of appeal on March 21, 2007, purportedly “from the final judgment dismissing the action entered in this action on the 27th day of February, 2007.”
Respondents prepared an “ORDER AFTER HEARING,” which was filed by the trial court on April 6, 2007. The order granted summary judgment in favor of respondents Grannis, Hager, Meden, Surges, Watson, Williams, and Woodford for the same reasons set forth in the trial court’s written ruling of February 27, 2007. The order also stated that appellant’s motion to consolidate and for leave to file a second amended complaint was denied, in light of the ruling on respondents’ summary judgment motion.
The judgment in favor of Grannis, Hager, Meden, Surges, Watson, Williams, and Woodford was entered on April 23, 2007.
III. DISCUSSION
A. Appealability
An order granting summary judgment is not an appealable order. (Levy v. Skywalker Sound (2003) 108 Cal.App.4th 753, 761, fn. 7.) The appeal is properly taken from a judgment entered on the basis of the summary judgment order. (Ibid.) Here, appellant filed his notice of appeal after the trial court granted the motion for summary judgment, but before judgment was actually entered. On our own motion on June 5, 2007, appellant’s notice of appeal was deemed filed immediately after entry of judgment.
B. Standard of Review
The standard of review for an order granting a motion for summary judgment is de novo. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 (Aguilar).) The trial court’s stated reasons for granting summary judgment are not binding on the reviewing court, which reviews the trial court’s ruling, not its rationale. (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.)
In performing our independent review, we are guided by the California Supreme Court’s decisions addressing summary judgment procedure. A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar, supra, 25 Cal.4th at p. 850.) If the defendant fails to make this initial showing, it is unnecessary to examine the plaintiff’s opposing evidence and the motion must be denied. However, if the moving papers make a prima facie showing that justifies a judgment in the defendant’s favor, the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
With these principles in mind, we first turn to the motion for summary judgment by Grannis and Surges.
C. Motion for Summary Judgment by Grannis and Surges
Following the sustaining of Grannis and Surges’s demurrer to the complaint, appellant filed a first amended complaint which omitted any reference to Grannis and Surges as defendants. Grannis and Surges subsequently filed an answer to the first amended complaint and a motion for summary judgment.
In response to our request for supplemental briefing, Grannis and Surges argue that they may appear in the action even though they were not named in the first amended complaint, and that there was no reason for the trial court to strike their answer or summary judgment motion.
Our review of the motion for summary judgment by Grannis and Surges begins with an identification of the issues framed by the pleadings. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 887.) “ ‘The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues . . . .’ [Citations.]” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381.) In other words, the pleadings provide “the outer measure of materiality in a summary judgment proceeding.” (Ibid.) By way of a motion for summary judgment, the moving party may “ ‘show that material factual claims arising from the pleadings need not be tried because they are not in dispute.’ [Citation.]” (Ibid.) Thus, “ ‘[a] motion for summary judgment must be directed to the issues raised by the pleadings. . . .’ [Citation.]” (Nash v. Fifth Amendment (1991) 228 Cal.App.3d 1106, 1116.) “Summary judgment cannot be granted on a ground not raised by the pleadings. [Citation.]” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)
In this case, no cause of action was alleged against Grannis or Surges in the first amended complaint, the operative pleading. Indeed, while identified as parties in the initial complaint, Grannis and Surges were no longer named as defendants in the first amended complaint at the time they filed their motion for summary judgment.
“A complaint must include the names of all the parties. (Code Civ. Proc., § 422.40.)” (Fireman’s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145-46 (Fireman’s Fund Ins. Co.).) “It has long been the rule that an amended complaint that omits defendants named in the original complaint operates as a dismissal as to them. [Citations.]” (Id. at pp. 1142.) Further, if the court sustains a demurrer with leave to amend and the plaintiff thereafter fails to name the defendant in the amended complaint, the defendant may seek dismissal with prejudice under Code of Civil Procedure section 581, subdivision (f)(2). (Cano v. Glover (2006) 143 Cal.App.4th 326, 329-330.)
Despite being omitted from the first amended complaint, Grannis and Surges filed an answer to the first amended complaint. It has been recognized that “ ‘[a] party may appear though he is not named in the complaint.’ [Citation.]” (Fireman’s Fund Ins. Co., supra, 114 Cal.App.4th at p. 1146.) In such cases, however, the plaintiff presumably desires to have the party included in the action and to pursue claims against the party. (See e.g., id. at pp. 1140-1141.) On the other hand, “[i]f a complete interloper were to answer a complaint, the plaintiff could move to strike the answer. [Citations.]” (Id. at pp. 1146-1147; Code Civ. Proc. §§ 435, 436.) “Arguably, the plaintiff could also demur to the answer. [Citation.] If, however, the plaintiff fails to do either in a timely manner—if the unnamed, yet answering defendant participates in the action, without any objection from anybody—the complaint should be deemed amended. [Citations.]” (Fireman’s Fund Ins. Co., supra, 114 Cal.App.4th at p. 1147.)
Here, appellant, a self-represented litigant, did not demur to or move to strike the answer filed by Grannis and Surges. Nonetheless, in opposition to the summary judgment motion, appellant indicated he had “amended his complaint and eliminated defendants Grannis and Surges” from the first amended complaint, and he requested that their summary judgment motion “be dismissed, denied and stricken.” Appellant thus clearly articulated his objection to Grannis’s and Surges’s participation in the action. At the same time, Grannis and Surges’s reply brief supporting their motion for summary judgment indicated that they were operating under the assumption that they remained parties to the action. In their reply brief, they stated: “[P]laintiff has never filed any papers dismissing defendant Grannis from this action. Instead, he served her counsel with the [first amended complaint]. Defendant Grannis is still a party to this case until she is either dismissed by plaintiff or until a judgment is granted in her favor by this court.”
In sum, appellant did not name Grannis and Surges as defendants in the first amended complaint nor did he want them included in the action as parties, while Grannis and Surges themselves were operating under the assumption that appellant needed to take some additional step, beyond dropping them from the first amended complaint, to dismiss them from the action. In view of these circumstances, we conclude that the trial court should have denied the motion for summary judgment by Grannis and Surges and stricken the answer by Grannis and Surges to the first amended complaint (Code Civ. Proc., §§ 435, 436). On remand, Grannis and Surges, or appellant, may seek dismissal pursuant to Code of Civil Procedure section 581.
In our request for supplemental briefing, we asked the parties whether the trial court should have stricken Grannis and Surges’s motion for summary judgment, in addition to their answer, given that Grannis and Surges were not named as defendants in appellant’s first amended complaint. Because the motion for summary judgment does not constitute a “pleading” under Code of Civil Procedure section 436 (see Code Civ. Proc., §§ 420, 422.10, 435), we will direct the trial court to deny, rather than strike, the motion for summary judgment by Grannis and Surges.
Code of Civil Procedure section 581 states in part: “(b) An action may be dismissed in any of the following instances: [¶] (1) With or without prejudice, upon written request of the plaintiff to the clerk, filed with papers in the case, or by oral or written request to the court at any time before the actual commencement of trial, upon payment of the costs, if any. [¶] (2) With or without prejudice, by any party upon the written consent of all other parties. [¶] . . . [¶] (c) A plaintiff may dismiss his or her complaint, or any cause of action asserted in it, in its entirety, or as to any defendant or defendants, with or without prejudice prior to the actual commencement of trial. [¶] . . . [¶] (f) The court may dismiss the complaint as to that defendant when: [¶] . . . [¶] (2) Except where Section 597 applies, after a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal. . . .”
D. Joinders by Respondents Hager, Meden, Williams, Woodford, and Watson
Appellant filed opposition on December 28, 2006, to Grannis and Surges’ summary judgment motion, which was set for hearing on February 23, 2007.
On January 25, 2007, nearly one month after appellant’s opposition was filed, four respondents, who were named as defendants in the first amended complaint, filed an answer and a notice of joinder in the motion for summary judgment. The notice of joinder stated: “Defendants Hager, Meden, Williams, and Woodford join in the Motion for Summary [sic] filed by defendants Grannis and Surges. [¶] In this case, plaintiff’s claims for relief against defendants Hager, Meden, Williams, and Woodford arise out of the same series of transactions or occurrences as those claims asserted against defendants Grannis and Surges. Additionally, questions of law or fact common to all defendants have been presented by the complaint in that all defendants are accused of failing to provide plaintiff with a special religious diet or a transfer to another prison that could accommodate his special dietary needs. [¶] Defendants Hager, Meden, Williams, and Woodford’s inclusion in the pending motion will promote judicial economy and expedite the final determination of the issues now before this Court.”
On February 7, 2007, respondent Watson, who was also named as a defendant in the first amended complaint, filed an answer and a similar notice of joinder in the motion for summary judgment.
On February 16, 2007, Grannis and Surges, and the five respondents seeking to join in the motion for summary judgment, filed a reply brief in support of the summary judgment motion.
In supplemental briefing, respondents argue that the notices of joinder by Hager, Meden, Williams, Woodford, and Watson “were sufficient to constitute a motion for summary judgment for each of” them. Respondents contend that the notices of joinder announced the intent of those parties to join in the motion and the notices “also set forth argument.” Respondents also maintain that they were not required to file a separate statement in support of a motion for summary judgment because this case involved “a single set of dispositive facts” that applied “with equal force to the defense of multiple defendants.” Thus the trial court had discretion under Code of Civil Procedure section 437c, subdivision (b)(1), “to decide that Hager, Meden, Williams, Woodford, and Watson could rely on the separate statement of other defendants when their defenses were identical.” Respondents assert that Grannis and Surges’s separate statement contained evidence concerning appellant’s “failure to comply with the pre-filing requirements of the Tort Claims Act,” which “was a defense common to all of the defendants in this case.”
Code of Civil Procedure section 437c, subdivision (b)(1), provides the following regarding a motion for summary judgment: “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.”
For several reasons, we find that the joinders by respondents Hager, Meden, Williams, Woodford, and Watson did not constitute motions for summary judgment by them. First, the notices of joinder were not motions that sought relief on behalf of these respondents. “A notice of joinder does not alone constitute a motion.” (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391 [individual who filed notices of joinder in corporation’s motions to strike pursuant to Code of Civil Procedure section 425.16 was not bound by, and lacked standing to appeal from, order denying corporation’s motions].) Although parties frequently join in another party’s argument, “joining in an argument is different from joining in a motion.” (Decker v. U.D. Registry, Inc., supra, 105 Cal.App.4th at p. 1391.) In this case, the respondents who filed joinders did not specifically request relief on their own behalf; they merely sought to “join in” Grannis and Surges’s motion, which sought relief in favor of Grannis and Surges only. (See ibid.) The reply brief filed by the respondents (along with Grannis and Surges) also does not constitute a motion for summary judgment by these individuals. (Village Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 47.)
Second, even if we were to liberally construe the notices of joinder as motions seeking relief on behalf of the joining parties, the notices of joinder were inadequate. In their notices of joinder, the five respondents asserted that appellant’s claims for relief arise “out of the same series of transactions or occurrences as those claims asserted against” Grannis and Surges, and that “questions of law or fact common to all defendants have been presented by the complaint in that all defendants are accused of failing to provide plaintiff with a special religious diet or a transfer to another prison that could accommodate his special dietary needs.” In view of the fact that there were no claims, let alone any allegations, asserted against Grannis and Surges in appellant’s first amended complaint, the five respondents seeking to join in the summary judgment motion were not necessarily similarly situated on all factual and legal grounds to Grannis and Surges. While the evidence and some of the arguments presented in Grannis and Surges’s motion for summary judgment might apply to a motion for summary judgment by the five respondents seeking to join the motion, it is not clear that all the arguments would necessarily be identical and the notices of joinder did not provide any clarity in this regard. Given the five respondents’ failure to tailor the notices of joinder, and the arguments contained therein, according to the allegations and claims asserted against them, we find the notices of joinder inadequate to constitute a motion for summary judgment by them.
Third, appellant did not have an opportunity to respond to the notices of joinder. The summary judgment motion was set to be heard on February 23, 2007. Respondents’ notices of joinder, which were served by mail on appellant on January 23, 2007, and February 5, 2007, did not comply with Code of Civil Procedure section 437c, subdivision (a). (See Frazee v. Seely (2002) 95 Cal.App.4th 627, 636-637 [notice of joinder served less then 28 days before hearing was untimely under former Code of Civil Procedure section 437c, subdivision (a)].) That subdivision requires a party to provide a minimum of 75 days’ notice of the motion for summary judgment, with a longer notice period depending on the method of service. In this case, respondents served their notices of joinder after appellant filed opposition to Grannis and Surges’ motion for summary judgment. Thus, appellant, an incarcerated and self-represented litigant, did not have an opportunity to respond to the notices of joinder.
In sum, the notices of joinder by respondents Hager, Meden, Williams, Woodford, and Watson did not constitute a motion for summary judgment because the notices did not seek relief on their own behalf, were not tailored to the allegations and claims asserted against them, and were filed after appellant’s opposition so that appellant did not have an opportunity to respond. Accordingly, because respondents Hager, Meden, Williams, Woodford, and Watson did not file a motion for summary judgment, they were not entitled to a grant of summary judgment in their favor.
IV. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court with directions to (1) deny the motion for summary judgment by respondents Nola Grannis and Thomas Surges, (2) enter an order striking the answer by respondents Nola Grannis and Thomas Surges to appellant’s first amended complaint, and (3) reverse the order
granting summary judgment in favor of respondents Richard Hager, Alexander Meden, Alan Williams, Jeanne Woodford, and Charles Watson.
WE CONCUR: MIHARA, J., MCADAMS, J.
We note that the notice of motion (but not the supporting papers) also should have been filed in case No. M77431. (Cal. Rules of Court, rule 3.350(a)(1)(C), (2)(A).)