N/A
Here, Defendant Gallo purports to move for partial summary adjudication on the singular issue of a portion of damages that does not completely dispose of Plaintiff’s causes of action.
A party is entitled to recover fees as “damages” only when the party brings an action against a third party as “the natural and probable consequence” of the defendant’s misconduct. (Prentice v. North Am. Title Guar. Corp. (1963) 59 Cal.2d 618, 621.) Contractual attorney’s fees are generally recoverable as costs, not an element of damages. (Code Civ. Proc., § 1033.5(a)(10)(A).). As such, the issue of attorneys’ fees is not a “claim for damages” for which summary adjudication is available.
Further, Defendant Gallo’s motion for summary adjudication is untimely. Code of Civil Procedure 437c(a)(2) requires “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 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.” (Id.)
Here, 81 days before the July 23, 2026 hearing is Sunday, May 3, 2026. Because Defendant served the motion by electronic service, the required 81-day notice period is increased by 2 court days, or Thursday, April 30, 2026. Because Defendant Gallo served the motion on May 1, 2026, one day later, Defendant Gallo failed to provide the notice required under section 437c(a)(2). The trial court does not have the authority to “shorten the minimum notice period for hearings on summary judgment motions.” (Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764). “[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.” (Id. at 768). Waiver of minimum notice can only be based on the affirmative assent of the affected parties. (Id.) There is no affirmative assent from Plaintiff here.
For these reasons, the motion is DENIED.
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Moving Defendant to give notice. 5 Kang vs. Lucid Group OFF CALENDAR USA, Inc. 6 Xu vs. American Defendant American Honda Motor Co. Inc.’s Petition and Motion to Honda Motor Co., Inc. Compel Arbitration are DENIED.
Plaintiff’s Opposition
Defendant Honda first argues that all allegations in its Petition to Compel Arbitration are deemed admitted because Plaintiff failed to file a response to the petition within 10 days.
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