QL TITLING TRUST LTD., et al. vs TRANSPORT AMERICAN INC., et al.

2025CUBC047340: QL TITLING TRUST LTD., et al. vs TRANSPORT AMERICAN INC., et al. 08/21/2026 in Department 42 Motion for Summary Judgment and/or Adjudication

TENTATIVE

At the last hearing on Plaintiff’s Motion for Summary Judgment, on August 3, 2026, counsel for Plaintiff and self-represented Defendant were both present. The Court noted its concern regarding the timeliness of the notice and stated its intention to continue the matter. The Court set a briefing schedule, with Defendant ordered to file his “motion to permit late opposition to the Motion for Summary Judgment and continue trial” by August 10, 2026, and Plaintiff ordered to file its Supplemental Brief “addressing CCP § 1013 and CCP § 1005 and if they apply to CCP §437c” by August 13, 2026. Both parties filed within those deadlines. Plaintiff was given the opportunity to file an opposition to Defendant’s motion by August 18, 2026. Defendant filed a “Corrected Reply to Plaintiffs’ Opposition to Motion for Leave to File Late Opposition” on August 19, 2026. Notice:

The Notice, Motion of Summary Judgment, and most1 supporting papers were filed with the Court on May 11, 2026. The separately filed Proof of Service was signed by attorney Harmony Oswald on [Saturday] May 9, 2026, in Bedford, PA2, and declares that on May 9, 2026, she served Defendant Austin at two addresses in California (Van Nuys and Encino) by “U.S. Mail, with postage thereon fully prepaid, at Bedford, PA (15522).”

California Code of Civil Procedure, section 437c, subd. (a)(2) provides:

“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.”

A summary judgment which is not properly noticed pursuant to CCP § 437c(a)(2) is properly disregarded. Cuff v. Grossmont Union High School District (2013) 221 Cal.App.4th 582, 596.

1 However, Plaintiff’s 116-page “Table of Exhibits in Support” with all of the underlying supporting evidence, was

not filed until May 14, 2026. 2 Note that counsel Oswald’s supporting declaration, also dated May 9, 2026, was executed in “Bridgeville, PA”.

There are 86 days between May 9, 2026 and August 2, 2026, therefore service by mail is timely only if the Court determines that “the place of address is within the State of California.” Here, while Defendant’s address is in California, all the moving-papers were mailed by Plaintiff’s counsel from outside of the State of California, in Pennsylvania. Because service was initiated from out-of-state to California, the Court could take the position that the period of notice for the Motion was increased to 10 days, from 81 days to 91 days. Accordingly, notice would be short by at least 5 days.

In its supplemental brief, Plaintiff argues that sections 1005 and 1013 do not apply, and only 86- days’ notice was required because Defendant is in California. Plaintiff asserts that it is irrelevant that mailing took place in Pennsylvania, and that no additional notice was required. In any event, it argues, there was actual notice, Defendant appeared at the hearing, did not object to notice, and has claimed no prejudice. Plaintiff says that due process was satisfied under the circumstances, and any notice defects were waived. See Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645.

First, the Court agrees that the relevant section is CCP §437c(a)(2), and that under subd. (b)(6): “Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised, or an act may be done, do not apply to this section.”

As for the issue of whether 86-days or 91-days applies here, there is no case cited for the proposition that service made from outside California to within California is governed by the section increasing notice by only 5-days. It seems totally illogical to only increase the notice period by 5 days even if service took place from outside of California, simply based on where Defendant resides. Under Plaintiff’s interpretation of the phrase “place of address,” it would not matter where the moving-party made service from, so long as receipt was made to an address within the State.

Whether Plaintiff effected service from Pennsylvania or anywhere else outside of California would not matter under Plaintiff’s theory. The Court believes the more reasonable interpretation of the phrase “place of address,” the one that would satisfy the legislative purpose in offering more time for service outside of the state and country, is to include within the phrase both the sender and the receiver. Accordingly, The Court could hold that the 91-day period applies based Defendant’s place of address in Pennsylvania.

Therefore, unless Defendant agrees or is found to have waived defective notice, the Motion could be denied.

The court may not shorten the notice period “absent the express consent of the parties.” (Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 768.) There is no evidence that Defendant consented to a shortened statutory period here. “[T]he statutory language regarding minimum notice is mandatory, not directive.” Id. at p. 764. The court held that because a summary judgment motion is “perhaps the most important pretrial motion in a civil case,” “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 pp. 765–766, “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 [holding that “the trial court abused its discretion by: (1) continuing the noticed hearing for only four days, in an effort to provide 75 days’ notice.”])

As for waiver, Defendant did not file any objections or opposition papers, on the issue of notice or the merits or otherwise, but instead simply appeared at the hearing, and sought a continuance in order to retain counsel and file an opposition. It does not appear to the Court that these actions constitute waiver. As stated in Robinson v. Woods (2008) 168 Cal.App.4th 1258, “waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence.” The language in Boyle quotes dicta from Carlton v. Quint (2000) 77 Cal.App.4th 690.3

Although notice of the Motion was defective and Defendant has not expressly consented to shorten the notice period, it appears that he is willing to agree to reach the merits of this Motion if he is given sufficient time to file an opposition. Accordingly, it is the Court’s TENTATIVE not to deny the Motion on timeliness grounds but instead decide the Defendant’s Motion for Leave to File Late Opposition to Plaintiff’s Motion for Summary Judgment; Motion to Continue Trial.

Defendant’s Motion for Leave to File a Late Opposition, and to Continue Trial

Defendant seeks leave to file a late opposition, to continue the hearing on the Motion for Summary Judgment, and to continue the September 8, 2026 trial date and all deadlines. Defendant asserts that he has acted diligently in gathering documents, correspondence, etc. and it was not organized or readily available when his opposition was due. This action “involves substantially more than a routine equipment financing dispute,” including the nature of the trucking investment and alleged misrepresentations.

As noted above, Plaintiff’s opposition was filed the August 18, 2026 deadline.

The better course is to attempt to understand Plaintiff’s arguments through the prism of Defendant’s Reply arguments. It appears that Plaintiff primarily attacked Defendant’s lack of specific evidence explaining the failure to file a timely opposition. In response, Defendant offers that his mother was battling stomach cancer, he was a caretaker, and she passed away and was buried on June 23, 2025, leaving him to run the family real estate business with his sister; his father has serious health problems and he is responsible for his care; and his son has cerebral palsy and Defendant is his primary daily caretaker. Moreover, because of the trucking transaction at issue, Defendant doesn’t have funds to retain counsel.

3 In more dicta, Carlton outlines the options available for an attorney who claims his client was not properly served

with motion papers and/or that inadequate notice of the hearing was received. One option is to appear at the hearing without filing a response to the motion and request a continuance for the purpose of preparing a proper response. That is what Defendant has essentially done here, expect that he has not made a record relating to inadequate notice.

Given the representations made by Defendant as well as the notice issue identified above, the Court would find good cause to allow the filing of a late opposition. CCP §437c subd. (b)(2). Defendant is ordered to file and serve his Opposition by no later than September 25, 2026. The hearing on this motion is continued to October 16, 2026, and the three-day court trial to a date set by the Court in consultation with the Parties. As conceded by Defendant, the trial deadlines are not continued with the new trial date.