Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022)
Summary judgment takes a long time to brief. An MSJ needs to be heard at least 30 days before trial. Code Civ. Proc. § 437c(a)(3). And you need to give 75 days’ notice. § 437c(a)(2). Plus you need to add 5 days for mail service and two days for FedEx. Id. And as the Court here notes, although the summary judgment statute is silent on it, under the e-service statute, you also add two days for email or other electronic service. § 1010.6(a)(4)(B).
Defendant in this case filed an MSJ 107 days before trial, serving by email. But this case is in San Diego, where you need to reserve hearing dates pretty far out in advance. The earliest date the court would hear the motion was a week after the trial date. So defendant filed an ex parte asking to set an earlier date or to kick the trial so the MSJ could be heard. The court denied the application, commenting that Defendant waited too long to bring the motion. Defendant took a writ.
The Court here holds that, so long as a motion is timely under the above rules—that is, served by mail 110 days before trial, 107 days by FedEx or e-service, or 105 days by personal delivery—a trial court is obliged to hear it before trial. The Court cites a number of cases that stand for the proposition. So Defendant was entitled to either a specially set date or a trial continuance. The trial court abused its discretion by denying the ex parte.
Writ granted.
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