Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
ORIGINAL PROCEEDINGS; petition for writ of mandate No. CIVRS700227, Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Troygould, Russ M. Fukano, Kenneth J. MacArthur and Christopher A. Lilly for Petitioner.
No appearance for Respondent.
No appearance for Real Parties in Interest.
OPINION
McKINSTER, Acting P. J.
In this matter we have reviewed the petition and considered the record. Real party in interest has declined our invitation to file an informal response. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance is therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
We must conclude that the trial court erred in finding that petitioner failed to provide the correct amount of notice of its summary judgment motion and, therefore, denying the motion as untimely.
Code of Civil Procedure 437c, subdivision (a), provides that a party making a motion pursuant to that section provide the other parties to the action 75 days notice. If service is by overnight delivery, the required 75-day period of notice shall be increased by two days. The two court days for service by overnight delivery is added to the end of the 75-day notice requirement. (Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299, 303.)
The real parties in interest, Direct Mortgage, Inc. and Thomas Cho (Direct), were given 75 days notice of the petitioner’s summary judgment motion, but they complained that another entity, Advance Imaging Strategies, Inc. (AIS), was not afforded the required notice because it was served by overnight delivery.
Petitioner contends that it was not required to serve AIS because the latter was not a party to petitioner’s action against Direct. Even assuming that AIS had to be served, its attorney expressly agreed to accept service by overnight delivery and also waived any objection to the scheduled hearing date. The affected party may expressly waive the right to the statutorily mandated minimum notice period for summary judgment hearings. (Cf. Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768.) AIS was the affected party and waived any objection to the hearing going forward; Direct received the minimum notice and has no standing to object.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of San Bernardino County to set aside its order denying petitioner’s motion for summary judgment and to reconsider the motion on its merits.
Petitioner to recover costs.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: GAUT, J. MILLER, J.