Becker vs. The Blow Down, LLC

all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c); Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 876.)

“[T]he summary judgment statute, Code of Civil Procedure section 437c, ‘provides a particularly suitable means to test the sufficiency of the plaintiff’s prima facie case and/or of the defendant’s [defense].’ [Citation.]” (Stokes v. Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1213.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.

A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1); R.J. Land & Associates Construction Co. v. Kiewit-Shea (1999) 69 Cal.App.4th 416, 424.) “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ.

Proc., § 437c, subd. (f)(2).)

“If a motion for summary adjudication is granted, at the trial of the action, the cause or causes of action within the action, affirmative defense or defenses, claim for damages, or issue or issues of duty as to the motion that has been granted shall be deemed to be established and the action shall proceed as to the cause or causes of action, affirmative defense or defenses, claim for damages, or issue or issues of duty remaining.” (Code Civ. Proc., § 437c, subd. (n)(1).)

“A defendant or cross-defendant has met that party's burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or crosscomplainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“First, and generally, from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord, Stokes v. Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1213-1214.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“Second, and generally, the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord, Carver v. Volkswagen Group of America, Inc. (2024) 107 Cal.App.5th 864, 876-877; accord, Stokes v.

Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1214; Code Civ. Proc., § 437c, subd. (p)(1) [plaintiff meets its burden by proving each element of its cause of action].) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)

Unless the moving party meets its initial burden, summary judgment cannot be ordered, even if the opposing party has not responded sufficiently, or at all. (Vesely v. Sager (1971) 5 Cal.3d 153, 169-170, superseded by statute on another point, as noted in Ennabe v. Manosa

(2014) 58 Cal.4th 697, 701, 707; FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73, fn. 4.)

The moving party’s evidence is strictly construed, while the opposing party’s evidence is liberally construed, and any doubts as to whether summary judgment should be granted must be resolved in favor of the opposing party. (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64; accord, Stokes v. Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1214; accord, Atkins v. St. Cecilia Catholic School (2023) 90 Cal.App.5th 1328, 1344-1345; Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143.)

“The court focuses on finding issues of fact; it does not resolve them. The court seeks to find contradictions in the evidence or inferences reasonably deducible from the evidence that raise a triable issue of material fact. [Citation.]” (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133, 1143-1144.)

“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party. [Citations.]” (Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864.) “When evaluating the record of a summary judgment motion, the trial court must consider all inferences reasonably deducible from the evidence in the opposing party’s favor. [Citations.] The court may not weigh the plaintiff's evidence or inferences against the defendants’ as though it were sitting as the trier of fact. The court nevertheless must determine what the evidence or inference could imply to a reasonable trier of fact. [Citation.]” (Gall v. Smith & Nephew, Inc. (2021) 71 Cal.App.5th 117, 123.)

The Court Denies the MSJ Due to Insufficient Notice

“Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262.) The purpose of subdivision (a)’s deadline “is to allow the parties time to prepare their opposition and replies and to prepare for the hearing.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1208.)

Where a motion for summary judgment was not filed within the deadline of section 437c, subdivision (a), the motion “was untimely under the relevant statute, and the trial court properly disregarded it as untimely.” (Cuff v. Grossmont Union High School Dist. (2013) 221 Cal.App.4th 582, 596.)

“There is little flexibility in the procedural imperatives of [section 437c] .... As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1607; see McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106, 117, quoting Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1256 [“it is important that all of the procedural requirements for the granting of such a motion be satisfied before the trial court grants the remedy”]; see Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 654 [“Code of Civil Procedure section 437c’s provision setting the minimum notice period for the hearing of a summary judgment motion also sets a statewide statutory standard that may not be varied by trial court orders”].)

Subdivision (a) of section 437c of the Code of Civil Procedure “does not contain any language authorizing courts to shorten the [81-day] notice. ‘ “ ‘ “It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.” ’ ” ’ [Citation.]” (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115; see UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 368 [trial court is without authority to shorten the minimum notice for the motion over the opposing party’s objection].)

The McMahon court recognized that, while courts have inherent authority to manage their calendar and to control proceedings before them, it could not see “how a statute precluding courts from shortening the notice period for the hearing of summary judgment motions defeats or materially impairs this authority. Indeed, legislation that places far greater restrictions on a court’s ability to

control its calendar has been approved. [Citations.]” (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117.)

For example, in Robinson, defendants mail-served plaintiffs with their MSJ 76 days before the hearing date, with the MSJ set 18 days before trial. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1260.) While the trial court recognized that the MSJ was untimely served, it continued the MSJ four days so the MSJ would be heard 80 days after it was mail-served. (Id. at p. 1261.) The Court of Appeal held it was an abuse of discretion for the trial court to have done so, as the express statutory language confirmed the moving party had to comply with the timing requirements of section 437c, and “ ‘trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.’ [Citation.]” (Ibid.; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 10:80.5)

Instead, where the moving party notices the hearing in less than the required time, notice must begin anew. In Robinson, for example, instead of simply continuing the MSJ by four days, the trial court should have required the moving party to provide new notice that complies with the section 437c. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 10:80.6.)

“Because it is potentially case dispositive and usually requires considerable time and effort to prepare, a summary judgment motion is perhaps the most important pretrial motion in a civil case. Therefore, the Legislature was entitled to conclude that parties should be afforded a minimum notice period for the hearing of summary judgment motions so that they have sufficient time to assemble the relevant evidence and prepare an adequate opposition.” (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 117–118.) The McMahon court concluded by holding “that, in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.” (Id. at p. 118; accord, Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1262.)

Following McMahon, the Court of Appeal for the Second District, Division 7, recognized that the trial court has discretion to shorten the initial 60-day period to bring a motion for summary judgment on a showing of good cause, as well as to shorten the 30-day period in which a motion for summary judgment must be heard before trial. “However, the Legislature did not similarly authorize a trial court to shorten the minimum notice period for hearings on summary

judgment motions. Such discretionary language is notably absent from the statute. Moreover, the statutory language regarding minimum notice is mandatory, not directive. This section of the statute states, ‘Notice of the motion and supporting papers shall be served on all other parties to the action at least 28 days [now 75] before the time appointed for hearing’ and twice thereafter refers to the 28–day period of notice as being ‘required.’ ” (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 764.)

An exception exists where the parties consent to shortened notice. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261; Credit Suisse First Boston Mortgage Capital, LLC v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th 1290, 1301.) However, the Court should not infer a waiver of the notice period simply based on the opposing party’s silence. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1264; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768.) Instead, “[w]aiver of minimum notice ... should only be based on the affirmative assent of the affected parties.” (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1264; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768.)

Defendant may contend that Plaintiff’s Opposition opposes the MSJ on its merits, such that she has waived any claim of inadequate service. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 696-698 [although moving party did not provide sufficient service, opposing party opposed the MSJ on its merits, thus waiving any claim of inadequate service or notice]; see Yanez v. Vasquez (2021) 65 Cal.App.5th Supp. 1, 9 [while plaintiff raised the issue of inadequate notice in the opposition, he did not claim to have suffered any prejudice in drafting a response or in preparing for the hearing, such that the position is waived]; see National Grange Order of Patrons of Husbandry v.

California Guild (2017) 17 Cal.App.5th 1130, 1147- 1148 [defendants opposed the summary judgment motion with voluminous papers, such that they failed to make an affirmative showing of any prejudicial error].) The Court rejects this argument.

While Plaintiff technically addressed each cause of action and the claim for punitive damages, it cannot be said that she did so meaningfully. The abbreviated manner in which Plaintiff presented her Opposition makes clear that Plaintiff’s Opposition is not one that was supported by “voluminous papers,” or with detailed legal analysis. (See National Grange Order of Patrons of Husbandry v. California Guild (2017) 17 Cal.App.5th 1130, 1147-1148 [defendants opposed the summary judgment motion with voluminous papers, such that they failed to make an affirmative showing of any

prejudicial error]; see Lackner v. North (2006) 135 Cal.App.4th 1188, 1208 [the purpose of subdivision (a)’s deadline “is to allow the parties time to prepare their opposition and replies and to prepare for the hearing”]; see Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267 [where a motion for summary judgment was not timely filed or served, the opposing party is faced with the dilemma of risking a loss on the motion if it does not address the merits at all, or it addresses the merits to some extent but does not adequately show prejudice due to the untimely notice].)

Here, the Opposition is a mere 10 pages long, and Plaintiff submits but two exhibits, as well as a declaration from Plaintiff, that can be most generously described as cursory.

Moreover, Plaintiff’s Opposition clearly objected to the insufficient notice, such that the Court would not infer Plaintiff waived the notice period simply because she filed an Opposition. (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1264; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768.)

The Court denies the MSJ.

Plaintiff to give notice.

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