Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 06CC12816, Andrew P. Banks, Judge.
Law Offices of Robert H. London, Robert H. London and Robert A. Brock, for Plaintiff and Appellant.
Freeman, Freeman & Smiley, Bradley D. Ross, Dawn B. Eyerly and Ashley Dawkins Hunt, for Defendant and Respondent.
OPINION
BEDSWORTH, ACTING P. J.
Thomas Sweatt appeals from a judgment that dismissed this negligence action against Public Storage Inc. (Public Storage) after the latter prevailed on a motion for summary judgment. Sweatt argues the evidence does not support a finding he was served, notice of the motion was insufficient, and it was an abuse of discretion to deny two motions to set aside the judgment. We disagree and affirm.
FACTS
On Friday, December 21, 2007, Public Storage provided to Overnight Express a motion for summary judgment and the accompanying notices and documents for overnight mail delivery which, because of the weekend, meant delivery on Monday, December 24. That morning, the carrier (Overnight Express) sent Public Storage’s attorney an e-mail confirming the shipment had been delivered to the offices of Robert H. London, where it was signed for by “Chen.”
We consider the evidence most favorable to the judgment, under the rule an order or judgment below is presumed to be correct and all inferences must be drawn in favor of its correctness. (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.)
Sweatt failed to respond to the motion. A week prior to the scheduled hearing date of March 7, 2008, on the date a reply brief would have been due, Public Storage Attorney Dawn Eyerly filed and served (by mail) a declaration that stated no opposing papers had been received, and she asked the court to treat Sweatt’s silence as an acknowledgement the motion should be granted.
At the hearing on March 7, the trial court ordered Public Storage to file a revised proof of service (the original had an extra digit in London’s zip code) and took the matter under submission. On March 11, Public Storage filed and served the revised proof of service and a proposed order granting the motion. The order was signed on March 12.
On March 19, Sweatt moved to set aside the order on the ground of surprise. (Code Civ. Proc., § 473, subd. (b).) In a supporting declaration, Thomas Pham, Jr., the attorney in London’s office handling the case, claimed he first learned of the summary judgment motion when he attended a March 14, 2008 hearing on Public Storage’s prior motion to compel discovery responses. He denied there was anyone named Chen working at London’s offices. A clerk in the office who reviewed incoming mail (Cenny Patadungan) declared she never received notice of the motion, and there was no Chen working there. London submitted a declaration that said he first learned of the motion from a notice of ruling served by mail on March 11, 2008 (when he received the notice was not revealed). He said his office was closed on December 24, 2007, and he did not have any employee by the name of Chen. A declaration from the manager of London’s office building said most of the offices were closed on December 24, 2007, her office did not receive any mail for London that day, and none of the building employees or security guards was named Chen.
All subsequent statutory references are to the Code of Civil Procedure.
Public Storage opposed the motion with declarations from Eyerly and Overnight Express. Eyerly declared she had spoken to London and Pham “numerous” times between the dates the motion was served and heard, and “we specifically discussed the pending [m]otion for [s]ummary [judgment.” They also discussed the substance of the motion at Sweatt’s deposition. Eyerly said neither attorney denied knowing what motion she was talking about, and London “never told me he was unaware the [m]otion was on file.” Eyerly declared “[d]uring the year and a half... this case has been pending, [p]laintiff’s counsel has never timely served anything.... [W]ritten discovery responses were served very late. Supplemental discovery responses were also served very late, and far after [p]laintiff’s counsel represented they were served.... Plaintiff has never timely opposed any motion that has been brought.”
An Overnight Express driver (German Gonzalez) declared he went to London’s office at 9:52 a.m. on the morning of December 24, 2007. “[A] representative for the Law Offices of Robert H. London signed for the package on my handheld machine, representing to me they were authorized to accept packages for Mr. London’s office.” The driver entered the delivery in his manifest and made sure a confirming e-mail was sent. Overnight Express’s customer care supervisor (Timothy Butler) declared he had reviewed the records regarding the delivery to London and spoken with the responsible driver. “[T]he document manifest shows... the driver was able to gain access [to] the building, and someone signed for the package using the signature ‘Chen.’ [¶]... [¶] I have confirmed... the driver... obtained a signature on [a] handheld machine at 9:52 a.m. on December 24, 2007, and... logged the signature on the written manifest. The machine then automatically sends a confirming e-mail to the customer who sent the package.”
In reply, Sweatt changed the ground for relief. He asserted the motion, brought on the ground of surprise (§ 473, subd. (b)), was actually meant to be a motion to vacate a void order. (§ 473, subd. (d).) Two new theories were advanced. Sweatt argued depositing the papers on Friday, December 21, 2007, for delivery on Monday, December 24, 2007, was not overnight delivery. And, in any event, he contended service on Monday, December 24, 2007, was one day short of the 75 days’ notice required for a summary judgment motion.
The set-aside motion was heard and denied on May 23, 2008. The trial court found London received the motion. A minute order explained “[Sweatt] fails to adequately respond to the numerous points [Public Storage] makes to show [Sweatt] was, in fact, aware of the summary judgment motion. The [c]ourt finds the evidence submitted in... opposition to be the more credible.” It further found the motion was timely served, reasoning service was completed when deposited with the overnight carrier for delivery the next business day, relying on Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299. The court refused to consider the void-order argument, saying a new basis for a motion cannot be asserted in reply papers.
Sweatt brought a second set-aside motion on June 2, 2008. He requested reconsideration of the finding London had received the summary judgment motion (§ 1008), and asserted the order granting summary judgment was void. (§ 473, subd. (d.) This time, London declared he never spoke with Eyerly about the summary judgment motion. He admitted conversations about summary judgment, but claimed “I never understood Ms. Eyerly to be referring to a motion she had actually filed in this case. I understood her to be indicating her intention to file such a motion....” Addressing Eyerly’s declaration in lieu of reply that no opposition to the summary judgment motion was received, London declared “I cannot say when if ever this document was received in my office.” He claimed to have learned of it only when submitted in opposition to the first set-aside motion. A declaration from London’s office manager (Ben Lui) explained the procedure for recording incoming mail, said there was no record of receiving the summary judgment motion, and there was no office employee named Chen.
Judgment was entered dismissing the action on June 9, 2008. The second set-aside motion was heard on July 18, 2008. The trial court denied reconsideration for want of showing why the new declarations could not have been presented with the original motion, and because it had lost power to reconsider after judgment was entered. On the void order issue, the court said it believed service by overnight delivery was sufficient.
I
Sweatt argues the evidence does not support the finding he received the motion for summary judgment on December 24, 2007. The argument is frivolous.
Credibility of witnesses is a matter for the trier of fact. Here, the trial judge did not believe London’s version of events, and with ample reason. Eyerly declared London never denied receiving the motion in their several conversations about it after December 24, 2007, London never served papers on time throughout the case, and once misrepresented when papers had been served. London did not dispute these allegations. Then, after losing the first set-aside motion, London offered up a farcical denial in the second one. This time, London declared they had only spoken about a proposed summary judgment motion, and he used semantic sleight-of-hand in addressing Eyerly’s declaration of non-opposition to the summary judgment motion (“I cannot say when if ever” it was received). The record supports the finding London received the summary judgment motion on December 24, 2007.
II
Sweatt argues notice of the motion was insufficient because two additional court days for service by overnight delivery must be added to the beginning of the required 75 days’ notice, and by this reckoning the motion was one day late. We disagree.
The summary judgment statute provides “[n]otice of the motion and supporting papers shall be served... at least 75 days before the time appointed for hearing.... However... if the notice is served by facsimile transmission, Express Mail, or another method for delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” (§ 437c, subd. (a).)
Barefield v. Washington Mutual Bank, supra, 136 Cal.App.4th 299, the only case to consider the issue, held the two days are to be added at the end of the 75 day notice period. Washington Mutual deposited a summary judgment motion with an express carrier for overnight delivery on November 4, 2004 (a Thursday). Another copy was left at Barefield’s door on November 5, 2004. The hearing date was January 20, 2005 (also a Thursday). The carrier was unable to deliver the package on November 5, 2004, or any of four subsequent days and returned it to the sender. Another copy was deposited for overnight delivery on November 22, 2004 and delivered the following day. Barefield argued notice was insufficient because she was not served until November 23, 2005. Failing that, she contended, service on November 4, 2005 was only 73 days’ notice because the two extra court days had to be added at the beginning of the notice period.
The court held service was timely. It said service was complete upon deposit with the overnight carrier. Of the additional two days, it opined “[a] commonsense reading of section 437c, subdivision (a) [is that] [i]ncreasing a 75-day period by two court days implies the addition occurs at the end of the 75-day period instead of the beginning.” It reasoned that adding the time at the end would ensure that a motion otherwise scheduled for a Friday would have to be set for the following Tuesday at the earliest. (Barefield v. Washington Mutual Bank, supra, 136 Cal.App.4th at p. 303.)
We find Barefield convincing and determinative. The present motion was deposited for overnight delivery on Friday, December 21, 2007, with a hearing date of March 7, 2008 (also a Friday). Counting from December 21, 2007, and observing the rule the first day is excluded and the last included (§ 12), 75 days hence was Wednesday, March 5, 2008. Two court days later was Friday, March 7, 2008. So timely notice was given.
At oral argument, Public Storage cited another case in support of its position that service was timely, Lackner v. North (2006) 135 Cal.App.4th 1188. It contends the decision indicates days are to be counted forward (from the date of service) in determining whether notice is adequate on a summary judgment motion. But we cannot learn much from Lackner. There, the party against whom summary judgment was sought successfully moved to continue the hearing to allow more time for discovery. The court held notice was to be measured from the date of service to the actual hearing, and so measured, it was sufficient. (Id. at p. 1209.) Lackner provides no guidance in this matter.
Sweatt argues we are not bound by Barefield and, in any event, it is distinguishable. He is right that we are not bound by the decision, but provides us no persuasive reason to part from it. Sweatt asserts it made no difference in Barefield whether the days were counted backward (beginning with the hearing date) and two court days added at the beginning of the 75 days, or counted forward (beginning with the date of service) and two court days added at the end. But that is at odds with the court’s statement of Barefield’s position (only 73 days’ notice counting forward). We will not go behind the decision to sort out the present parties’ competing arguments about how the days were – or should have been – counted there. We accept the court’s statement of the facts and arguments before it, and the rule it adopted.
Alternatively, Sweatt argues Barefield is wrong. He asserts the time to give notice of a summary judgment motion is to be counted backward because it must be given “at least 75 days before... hearing.” (§ 437c, subd. (a).) The argument relies on DeLeon v. Bay Area Rapid Transit Dist. (1983) 33 Cal.3d 456, but DeLeon is distinguishable. It involved interpretation of the statute of limitations for bringing an action against a public entity, which required the action be commenced within six months after denial of a claim by the entity. A complaint was filed on December 26, one day after the six-month period expired. The court held the limitations period was extended by one day, under the rule that the time to perform an act is extended by a day if it falls on a holiday (§ 12a), and election cases declining to apply the rule were not controlling. We cannot see how this holding aids Sweatt, nor are we are persuaded the discussion of the distinguished election cases compels a decision for Sweatt. As we have said, service was timely under Barefield and we agree with the Barefield approach.
III
Sweat also contends service was untimely because deposit with a carrier on Friday for delivery the following Monday did not satisfy the overnight delivery requirement in the summary judgment statute. We cannot agree.
When an act is to be performed on a holiday, it may be performed the next business day (§ 13), and both Saturday and Sunday are deemed holidays. (§§ 10, 12a, subd. (a).) So deposit on Friday for delivery on Monday is the equivalent of overnight delivery in these circumstances.
Sweatt disagrees with the application of the next business day rule here because, under his view that time must be counted backward, delivery on Monday, December 24, 2007 was one day short of the required 75 days’ notice. But as we reject the counting backward argument, we also reject this corollary to it.
IV
We address briefly Sweatt’s argument the trial court abused its discretion when it denied his set-aside motions that claimed surprise and void judgment. He is mistaken. There was no surprise, since the trial court found London received the summary judgment motion. And adequate notice of the motion was given, so the resulting judgment cannot be set aside as void.
Since the evidence supports the finding the motion was received by Sweatt’s attorneys, proper notice was given, there was no abuse of discretion in refusing to set aside the order granting the motion or the judgment. The judgment appealed from is affirmed. Public Storage is entitled to costs on appeal.
WE CONCUR: ARONSON, J. FYBEL, J.