CHANG ZEPEDA, et al. vs BRODER, et al.

24CV006894: CHANG ZEPEDA, et al. vs BRODER, et al. 11/14/2024 Hearing on Motion to Compel Augmented and Amended Discovery in Department 53

Tentative Ruling

NOTICE:

Consistent with Local Rule 1.06(B), any party requesting oral argument on any matter on this calendar must comply with the following procedure:

To request limited oral argument, on any matter on this calendar, you must call the Law and Motion Oral Argument Request Line at (916) 874-2615 by 4:00 p.m. the Court day before the hearing and advise opposing counsel. At the time of requesting oral argument, the requesting party shall leave a voice mail message: a) identifying themselves as the party requesting oral argument; b) indicating the specific matter/motion for which they are requesting oral argument; and c) confirming that it has notified the opposing party of its intention to appear and that opposing party may appear via Zoom using the Zoom link and Meeting ID indicated below. If no request for oral argument is made, the tentative ruling becomes the final order of the Court.

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A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing

24CV006894: CHANG ZEPEDA, et al. vs BRODER, et al. 11/14/2024 Hearing on Motion to Compel Augmented and Amended Discovery in Department 53

or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Plaintiffs Maria Teresa Chang Zepeda and Vincent Domino Zepeda (“Plaintiffs”) motion “motion to compel augmented and amended discovery responses and request for sanctions” is DROPPED for defective service.

The proof of service attached to the moving papers avers that Defendants Gavin Huntington Broder and Saipet Sirimontri (“Defendants”) were served with the notice of motion and motion, along with a memorandum of points and authorities by electronic mail on October 24, 2024. Service on October 24, 2024 for a hearing on November 14, 2024 does not provide 16 court days plus 2 court-days’ notice as required by statute. (See Code Civ. Proc. §§1005, subd. (b) & 1010.6(a)(2)(B).) In addition, there is no proof of service for other papers filed with the Court, including the declaration of John Victor Bell and the proposed order.

The Court notes that Defendants filed a timely opposition. In considering a filed opposition where notice of the motion is defective, “[i]t is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion.” (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Reedy v. Bussell (2007) 148 Cal.App.4th 1272 [“if the party appears at the appropriate hearing and opposes the motion on the merits – but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived”].)

Here, however, Defendants’ opposition expressly requests that Plaintiffs’ motion be denied because it was “not served sufficiently in advance of the hearing date” and thus, Defendants have not waived defective notice of the motion. (See Opp. at 1:22-23.) While this is enough to preserve Defendants’ objection to the timeliness of service in relation to the hearing date, the Court also notes that Plaintiffs’ filings themselves fail to establish that Defendants were served with all filed documents in the first instance.

While Plaintiffs’ proof of service indicates that Defendants were served with the notice of motion and motion, and the memorandum of points and authorities, there is no attestation that Defendants were also served with the separately filed Declaration of John Victor Bell. Thus, there can be no argument of waiver of defective notice where there is no proof that all filed documents were served in the first instance.

Plaintiffs filed a reply arguing that its motion to compel is not untimely under the Civil Discovery Act. However, Plaintiffs do not address how their motion, filed and served on October 24, 2024, would be timely for a hearing date of November 14, 2024, which only provides 14

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

24CV006894: CHANG ZEPEDA, et al. vs BRODER, et al. 11/14/2024 Hearing on Motion to Compel Augmented and Amended Discovery in Department 53

court-days’ notice even before factoring in additional days required for electronic service (which appears to be the method of service for some of the documents). And in any event, the Court was also not provided with the requisite 16 court-days’ notice of the motion pursuant to Code of Civil Procedure section 1005, subdivision (b), and the Court did not issue any order shortening time under California Rules of Court, rule 3.1300(b).

Defective service of notice deprives the court of jurisdiction to act. (Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509.)

This minute order is effective immediately. No formal order or other notice is required pursuant to California Rules of Court, rule 3.1312.