Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCV-237899.
NEEDHAM, J.
A motion for summary judgment must be served on the opposing party at least 75 days before the hearing, extended by two additional court days if the motion is served by overnight mail, and must be heard no later than 30 days before the trial date absent a showing of good cause. (Code Civ. Proc., § 437c, subd. (a).) We conclude there was good cause to hear a summary judgment motion on the 29th day before the trial date when the court was closed for budgetary reasons on the 30th day and the motion had been served on the opposing party by overnight mail on a date that fell 75 days plus two court days before the ultimate hearing date.
Further statutory references are to the Code of Civil Procedure.
I. BACKGROUND
Plaintiffs and appellants Rogelio and Josefina Palacios purchased real property in Sonoma County that is located within the designated habitat of the California tiger salamander. After learning that they could not build on the property or use it for agricultural purposes due to the application of the federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.), they filed a civil suit against the sellers of the property and the real estate professionals involved in the transaction. The first amended complaint included causes of action for breach of contract and breach of fiduciary duty against defendants and respondents Heather Galli, Randall Heyden and Kay-Co. Investments, Inc., doing business as Silver Oak Realty, who were, respectively, the agent, broker and real estate company who represented plaintiffs in their purchase of the Sonoma property. We refer to these defendants collectively as “the Kay-Co. defendants;” other causes of action against the sellers and sellers’ representatives are not at issue in this appeal.
Trial was set for November 20, 2009. The Kay-Co. defendants served a motion for summary judgment upon plaintiffs via overnight mail on August 5, 2009, and filed that same motion with the court on August 6, 2009. The clerk of the court set the hearing on the motion for Wednesday, October 21, 2009. This date was 77 days after the date of service by overnight mail and 30 days before the trial date.
Rule 5.1(B) of the Sonoma County Superior Court Local Rules provides, “All civil law and motion matters will be scheduled for a hearing date, time, and location at the Clerk’s Office upon filing all moving papers.”
On July 28, 2009, urgency legislation enacted in response to the statewide budget crisis authorized the Judicial Council to “provide that the courts be closed for the transaction of judicial business for one day per month.” (Gov. Code, § 68106, subd. (b), added by Stats. 2009-2010, 4th Ex. Sess., ch. 22, § 3, eff. July 28, 2009, operative until July 1, 2010.) The Judicial Council designated the third Wednesday of each month from September 2009 through June 2010 as a uniform statewide court closure day. (Judicial Council of Cal., Administrative Office of the Courts, News Release (July 30, 2009).) The court closure day in October 2009 fell on Wednesday, October 21, the date of the scheduled hearing on the Kay-Co. defendants’ motion for summary judgment. (Ibid.)
Plaintiffs’ counsel sent a letter to the court on August 20, 2009, advising it that October 21, 2009 would be a “court holiday.” Counsel asked that the motion for summary judgment be taken off calendar, noting that if the hearing were merely postponed it would fall within 30 days of the trial date contrary to section 437c, subdivision (a). On August 24, 2009, the superior court issued a written order moving the hearing to the following day, Thursday, October 22, 2009. This date met the notice requirements of section 437c, subdivision (a) because it fell two court days after the 75th day following service of the motion by overnight mail. (See Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299, 302-303.)
Instead of opposing the motion for summary judgment on the merits, plaintiffs filed an “Application to Reconsider Order Setting Hearing Date, ” in which they argued that in light of the court closure on October 21, 2009, there was no date available for the hearing that gave them at least 77 days notice and fell more than 30 days before trial. The application acknowledged that the 30-day period could be shortened upon a finding of good cause, but alleged that good cause was lacking. Plaintiffs also filed an “Objection to Hearing of Defendants’ Motion for Summary Judgment Within Thirty Days of Trial, ” raising essentially the same arguments.
The court heard the summary judgment motion as scheduled on October 22, 2009. It granted the motion and issued a written order stating that (1) the Kay-Co. defendants had met their burden of showing that plaintiffs could not establish the essential elements of their causes of action and there was no triable issue as to any material fact; (2) notice was adequate and the order rescheduling the hearing to a date only 29 days before the trial was supported by good cause; and (3) plaintiffs’ failure to submit opposition on the merits or to file a response to the separate statement of undisputed material facts was itself a basis for granting summary judgment under section 437c, subdivision (b)(3). Judgment was entered in favor of the Kay-Co. defendants and plaintiffs appealed.
II. DISCUSSION
The summary judgment statute provides in relevant part that “[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. However, if the notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California... and if 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. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” (§ 437c, subd. (a).)
In light of the express statutory language of section 437c, subdivision (a) and the potentially dispositive nature of a summary judgment motion, a court may not shorten the minimum notice period of at least 75 days absent an agreement by the parties. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262 (Robinson); Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 760, 763-764 (Urshan); McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117-118.) A court does have the discretion to order that the hearing be held within 30 days of the trial date upon a showing of good cause. (Urshan, at p. 764; Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 493, fn. 4; see also Robinson, at p. 1268.)
In this case, the court itself assigned the hearing date for the summary judgment motion. The initial date of October 21, 2009 fell 77 days after the motion had been served on plaintiffs by overnight mail and 30 days before the scheduled trial date. The court’s order rescheduling the hearing for October 22, based on the court closure on October 21, moved the hearing to a date that fell 75 days plus two court days after the motion was served by overnight mail, but only 29 days before the trial date.
Plaintiffs argue that they were not afforded the notice required by statute notwithstanding that the hearing was held 75 days plus two court days after the motion was served by overnight mail. They argue that original notice was of no legal effect because setting a hearing on a court holiday is the same as providing no notice at all. Plaintiffs rely on Bohn v. Bohn (1913) 164 Cal. 532, 536-537, in which the court characterized as “radically defective” a notice of motion that did not specify the time for the hearing.
We are not persuaded. Plaintiffs were initially notified that the hearing on the motion for summary judgment would be held on October 21, 2009. That date existed and would have been available for setting the motion for a hearing had it not been for the recently-implemented statewide court closures. When the court was alerted to this problem, it rescheduled the hearing for the following court day. Plaintiffs had a full 78 days, consisting of 75 days plus two court days and the court closure day, between the date the motion was served by overnight mail and the date of the hearing. They could have used this time to prepare opposition; that they elected not to do so and to gamble instead on a procedural argument regarding the sufficiency of the notice is a problem of their own making.
Plaintiffs also suggest that they were entitled to at least 80 days notice from August 24, 2009, the date the court rescheduled the hearing on the summary judgment motion (75 days plus five days for service by regular mail under section 473c, subdivision (a)). They rely primarily on Robinson, supra, 168 Cal.App.4th 1258, in which the court reversed an order granting summary judgment based on the failure of the moving parties to provide adequate notice. We disagree that Robinson is controlling.
In Robinson, the defendants filed a motion for summary judgment and selected a hearing date that fell only 18 days before the trial date. (Robinson, supra, 168 Cal.App.4th at p. 1260.) Even more significantly, they provided four fewer days of notice than required by statute (76 days rather than the 80 days required due to service by regular mail). (Id. at pp. 1260-1261.) The plaintiffs did not oppose the motion on the merits, but argued that it was untimely. On the date of the hearing, the trial court continued the motion for four days to allow the plaintiffs to file opposition on the merits; they failed to do so and summary judgment was entered in favor of the defendants. (Id. at p. 1261.) The appellate court reversed, holding that the original notice had been invalid at its inception and that the trial court had lacked authority to continue the hearing for a mere four days; at that point, the notice period had to begin anew. (Id. at pp. 1267-1268.) The appellate court also observed that the original notice was invalid because the hearing was set only 18 days before trial with no prior determination of good cause for setting the hearing less than 30 days before trial. (Id. at p. 1268.)
The notice in Robinson was defective from the outset because it was for a lesser period than was statutorily required under section 437c, subdivision (a). (Robinson, supra, 168 Cal.App.4th at p. 1260.) In the case before us, by contrast, the trial court set an initial hearing date that fell 77 days after the motion was served by overnight mail and would have complied with the “75-plus-two-court-days” period had it not been for the court closure day on Wednesday, October 21. The court then continued the hearing to October 22, a date that fell 78 calendar days after the motion was served by overnight mail, as well as 75 days plus two court days after service. Unlike Robinson, this case does not involve a hearing on a motion for summary judgment calendared after less than the requisite minimum 75 days of notice. (Id. at p. 1262.)
We next consider whether the court erred by hearing the motion less than 30 days before trial. Plaintiffs again rely on Robinson, which we again find distinguishable. The defendants in Robinson set their summary judgment motion for a hearing only 18 days before the trial, rendering the date invalid “unless and until” the trial court found good cause. (Robinson, supra, 168 Cal.App.4th at p. 1268.) In this case, the initial hearing date was set 30 days before trial, and the trial court implicitly found good cause for shortening this period when it continued the hearing for one day to comply with the court closure requirement. This implicit finding of good cause was made explicit when the court ruled on the summary judgment motion.
The trial court did not abuse its discretion in finding good cause to hear the motion on the 29th day before trial. (See Robinson, supra, 168 Cal.App.4th at p. 1261; see also Urshan, supra, 120 Cal.App.4th at p. 764.) The Judicial Council order setting the court closure dates was relatively recent, having been issued approximately a week before the Kay-Co. defendants filed their motion for summary judgment. Plaintiffs were given the full statutory notice to which they were entitled, and there is no suggestion that hearing the motion one day into the presumptive 30-day period before trial prejudiced them in any way. Both the court and the parties stood to benefit from hearing on the merits a motion that could obviate the need for the time and expense of a trial. No longer a “disfavored remedy, ” summary judgment has a “salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.)
Plaintiffs “note[] for the record” that the summary judgment was based on the wrong pleading because the motion referred to the second amended complaint, which had been “vacated” by the trial court. Assuming that plaintiffs have not forfeited this issue by failing to oppose summary judgment on this ground, we conclude the mistake was immaterial and does not require reversal.
The first amended complaint was filed on April 28, 2006, and alleged causes of action for breach of contract and breach of fiduciary duty against the Kay-Co. defendants. The court docket indicates that a second amended complaint was “vacated” on August 29, 2006, while various challenges to the first amended complaint were pending. On November 7, 2006, defendants Kay-Co. and Heyden filed an answer to the first amended complaint. Galli filed an answer to the first amended complaint on January 3, 2007.
No file stamped copy of this second amended complaint is included on the record.
From this history, it seems apparent that the first amended complaint was the operative pleading. But when the Kay-Co. defendants filed their motion for summary judgment almost three years later, in 2009, they referred in their separate statement of undisputed material facts to the “Second Amended Complaint (“SAC”)” and included a copy of the second amended complaint in their appendix of evidence in support of the motion. The second amended complaint presented as an exhibit was similar to the first amended complaint, but alleged causes of action for fraud and negligent misrepresentation against the Kay-Co. defendants in addition to the claims for breach of contract and breach of fiduciary duty that were contained in the first amended complaint.
Though the Kay-Co. defendants mistakenly referenced the second amended complaint in their summary judgment motion, the substance of the motion addressed the two causes of action for breach of contract and breach of fiduciary duty that were contained in the first amended complaint. The trial court specifically addressed these causes of action in its written order granting summary judgment. Plaintiffs were not prejudiced simply because the court also considered the causes of action or fraud and negligent misrepresentation that were alleged in the (inoperative) second amended complaint. The court addressed every cause of action necessary to enter judgment in favor of the Kay-Co. defendants.
Plaintiffs also complain that the Kay-Co. defendants’ answer to the first amended complaint was unverified, meaning defendants did not effectively place in dispute the material allegations against them. They cannot rely for the first time on appeal upon a “purported pleading defect that they had ample opportunity to raise below and which could easily have been cured.” (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 313-314; see also Zavala v. Board of Trustees (1993) 16 Cal.App.4th 1755, 1761 [plaintiff forfeited verification issue by proceeding to trial without filing motion to strike answer].)
III. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondents.
We concur. JONES, P. J., BRUINIERS, J.