Deshawn Black Cunningham vs. Vanderbreek Motors, Inc

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

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 12/16/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 53

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 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:

*** The Court finds in its file no proof of service demonstrating moving defendant’s service of the Notice of Disclosure issued on 11/17/2023, despite being directed to serve all other parties with the Notice of Disclosure “forthwith.” Moving defendant is directed to serve the Notice of Disclosure on all other parties forthwith and to file proof of service within five (5) court days. ***

The notice of motion does not provide (1) notice of the Court’s tentative ruling system, as required by Local Rule 1.06; (2) the correct address for this Court’s Dept. 53; or (3) the correct time for hearings in Dept.

53. Moving counsel is directed to contact opposing counsel and advise him/her of Local Rule 1.06 and the Court’s tentative ruling procedure and the manner to request a hearing, along with the correct address and time for hearings in Dept.

53. If moving counsel is unable to contact opposing counsel prior to the hearing, moving counsel is ordered to appear at the hearing in person, by Zoom or by telephone.

Moving counsel failed to comply with CRC Rule 3.1350(g), requiring a single volume of evidence (including declarations) with a table of contents when the evidence exceeds 25 pages.

Defendant Vanderbeek Motors, Inc. dba BMW of Roseville’s (“VMI”) Motion for Summary Judgment or in the alternative, Summary Adjudication as against plaintiff Cunningham is ruled upon as follows.

Factual Background

This breach of warranty action relating to plaintiff’s BMW vehicle was commenced on 8/19/2022. In April 2024, trial was set for 1/12/2026. Defendant VMI’s recent motion to continue the trial date was denied on 11/21/2025.

Moving Papers. On 9/25/2025, defendant VMI filed the present motion for summary judgment/adjudication and noticed the motion for hearing on 12/16/2025, less than 30 days prior to the 1/12/2026 trial date. Despite this fact, defendant VMI did not seek any order from this Court to advance the hearing date to an earlier date at least 30 days

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 12/16/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 53

prior to trial or otherwise seek a determination (if any basis existed) of good cause to have this motion heard less than 30 days before trial pursuant to Code of Civil Procedure §437c(a)(3). In any event, defendant VMI contends it is entitled to judgment as a matter of law in this case under the principles of res judicata (although the California Supreme Court now refers to this as “claim preclusion” (see, e.g., DKN Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 823–824)) by virtue of plaintiff’s earlier participation in a class action settlement relating to the same allegedly defective condition(s).

Opposition. Plaintiff opposes, arguing inter alia that defendant VMI’s service of the present motion by electronic transmission on 9/25/2025 failed to provide the minimum of 81 calendar days plus two additional court days’ notice and also that this motion was impermissibly set for hearing less than 30 days before the current 1/12/2026 trial date without any “good cause” determination by the Court. The opposition further asserts that this motion must be denied on its merits as well.

Standards for Summary Judgment/Adjudication

In ruling on a motion for summary judgment or summary adjudication, the Court engages in a three-step process. First, the issues framed by the pleadings must be identified since the pleadings themselves define the scope of what may be addressed via a motion for summary judgment/adjudication (FPI Development Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382) and the evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment/adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to such a motion may not create triable issues beyond the scope of the pleadings, nor are they a substitute for filing amended pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its initial burden of production. A defendant moving for summary judgment “bears the burden of persuasion that there is no triable issue of material fact and that [the defendant] is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1301.) This burden may be met by establishing either that one or more elements of a cause of action, even if not separately pleaded, cannot be established or that there is a complete defense to the cause of action.” (Code Civ.

Proc. §437c(p)(2).) A defendant cannot successfully shift the burden to a plaintiff by merely suggesting the possibility that the latter cannot prove his/her case but must make “an affirmative showing” in support of its motion. (Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.) If a plaintiff pleads

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 12/16/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 53

several theories of liability against the defendant, then the latter has the burden of demonstrating there are no material facts requiring trial on any of them. A moving defendant whose evidence omits facts as to any theory of liability effectively permits that portion of the complaint to be unchallenged and even where no opposition is presented, a moving defendant must still make a showing sufficient to eliminate all triable issues of fact. (Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228; see also Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 397.)

A plaintiff opposing summary judgment has no evidentiary burden unless the moving defendant has first met its initial burden. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840; see also Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1151-1152; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085-1086.) If a moving defendant has met its initial burden, the burden then shifts to the opposing party to show the existence of a material factual issue as to the cause of action alleged or the defense to it. (Code Civ.

Proc. §437c(p)(2); see also, Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) Only where the moving defendant makes the requisite initial showing does a court need to examine the opposition papers to determine if the latter demonstrate the existence of a triable issue of material fact. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) The opposing party must present admissible evidence and may not rely upon the allegations or denials of its pleading. (Id.)

In ruling on the motion, a court must construe the evidence of the opposing party liberally and that of the moving party strictly, resolving any doubts in the opposing party’s favor. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874; Cortez v. Vogt (1997) 52 Cal.App.4th 917, 925-926; see also, Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376; Brown v. FSR Brokerage, Inc. (1998) 62 Cal.App.4th 766, 773.)

While a summary adjudication motion is treated largely the same as one for summary judgment, there are a few important differences. One of these differences is found in CRC Rule 3.1350(b), which mandates that issues presented for summary adjudication be stated in the notice of motion and repeated verbatim in the separate statement. Another difference is that summary adjudication cannot be granted unless it “completely disposes” of a cause of action, affirmative defense, claim for punitive damages, or question of duty. Code of Civil Procedure §437c(f)(1) provides in its entirety:

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 [punitive] damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 12/16/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 53

or 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 [punitive] damages, or an issue of duty. (Underline added for emphasis; [brackets] added.)

Before turning to the specific issues raised by this motion, the Court reminds the parties of the “Golden Rule” of summary judgment/adjudication: “If it is not set forth in the separate statement, it does not exist.” (See, Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 (italics in original).) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Nazir, at 252 (citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1).)

That said, the Court now turns to the specific contentions advanced in connection with this motion.

Discussion

Defective Notice. Code of Civil Procedure §437c(a)(2) specifies that a motion like the present one which seeks summary judgment and/or summary adjudication must be served at least 81 calendar days prior to the hearing date (assuming personal service). Here, because the proofs of service attached to defendant VMI’s moving papers indicate service was performed by electronic transmission, an additional two (2) court days’ notice was required. (See, Code Civ. Proc. §437c(a)(2); §1010.6(a)(3)(B).) However, service of the moving papers by electronic transmission on 9/25/2025 for a hearing on 12/16/2025 does not give 81 calendar days plus two (2) additional court days’ notice as required by Code of Civil Procedure §437c(a)(2) and/or §1010.6(a)(3)(B). (See also, Code Civ.

Proc. §12c.) There is also no evidence that plaintiff stipulated to a shortened notice period as would be required in order to decrease the 81-day period specified in §437c(a)(2). (See, e.g., McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-118; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763-764.) Defective service of notice for defendant VMI’s motion for summary judgment/adjudication deprives the Court of jurisdiction to consider this matter (see, e.g., Lee v. Placer Title Co. (1994) 28 Cal.App.4th 503, 509-511) and therefore, this motion is dropped from calendar.

No “Good Cause” for Hearing Less Than 30 Days Before Trial. While the Court

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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need not proceed further, it adds that even if defendant had provided the requisite minimum notice for the present motion, it would still be dropped from calendar. Code of Civil Procedure §437c(a)(3) mandates that a motion for summary judgment/adjudication “shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.” As noted above, the trial date of 1/12/2026 for this action was set back in April 2024 and this 1/12/2026 trial date remained in place at the time defendant VMI filed the present motion on 9/25/2025.

As noted earlier, defendant VMI did not seek any order from this Court to advance and specially set the hearing date to an earlier date at least 30 days prior to the existing trial date. Indeed, had defendant filed and served its motion in sufficient time for a hearing to occur at least 30 days prior to the existing trial date, the Court would have (if requested) specially set this matter for hearing on a date which would comply with the requirement to be heard at least 30 days before trial.

Because defendant did nothing to set a code-compliant hearing date to occur at least 30 days prior to trial, defendant VMI was alternatively required to obtain an order finding “good cause” to have this motion heard less than 30 days prior to trial. But defendant VMI failed to do this as well. At no time since this motion was filed on 9/25/2025 has defendant VMI sought or obtained a determination from this Court that there is “good cause” to have this motion heard less than 30 days before the current trial date of 1/12/2026. While defendant VMI did file on 11/10/2025 a motion to continue the 1/12/2026 trial date, this motion to continue was for various reasons denied by the Presiding Judge on 11/21/2025.

As it applies to obtaining an “good cause” finding, in Robinson v. Woods (2008) 168 Cal.App.4th 1258, the defendants filed a motion for summary judgment and set the hearing less than 30 days before trial without first obtaining court approval. (Robinson, at 1259.) The plaintiffs objected to the motion and at the noticed hearing, the trial court continued the matter, directing the defendants to file papers showing “good cause” for entertaining the motion within 30 days of trial and giving the plaintiffs an opportunity to file opposition papers relating to the merits. (Id.) The plaintiffs chose not to do and at the continued hearing, the trial court found “good cause” to hear the motion less than 30 days before trial and in light of the lack of opposition on the merits, the motion was granted. (Id., at 1259-1260.)

However, summary judgment was reversed on appeal in part because the trial court erred when, after deciding at the continued hearing there was “good cause” to have the motion heard less than 30 days before trial, it proceeded to grant the motion. (Id., at 1260.) The Second District Court of Appeal stated in pertinent part:

Defendants noticed their motion for hearing within 30 days of the trial date

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

34-2022-00325485-CU-BC-GDS: Deshawn Black Cunningham vs. Vanderbreek Motors, Inc 12/16/2025 Hearing on Motion of Summary Judgment/Adjudication in Department 53

without first obtaining a determination of good cause from the trial court. (See § 437c, subd. (a).) Unless and until the trial court found good cause, the notice of the hearing was invalid. Nevertheless, as it turned out here, the trial court did eventually find good cause but not until April 16, 2007-- when the parties returned to court as instructed. The court proceeded to hear the summary judgment motion at the same hearing. Thus, April 16 did not legally become the hearing date on the motion until that very day. Plaintiffs had no time to prepare an opposition on the merits after the court granted defendants’ request to hear the motion within 30 days of the trial date -- another due process violation and abuse of discretion. [Cites.]

[¶] In sum, the trial court abused its discretion by (1) and (2) ruling at the continued hearing on both the merits of the summary judgment motion and on defendants’ request to entertain that motion within 30 days of trial. (Robinson, at 1268 (underline added for emphasis).)

In light of the above-cited passage from Robinson, the 12/16/2025 hearing date set by the moving papers filed back on 9/25/2025 was “invalid” unless and until “good cause” to have this motion for summary judgment/adjudication heard less than 30 days before trial is found to exist. Moreover, it stands to reason that where the notice of motion is “invalid,” there is no need for plaintiff to file a formal opposition to the pending motion for summary judgment/adjudication. Indeed, the Second District confirmed:

“The party opposing a summary judgment motion should not be under an obligation to respond on the merits -- and risk wasting its resources -- given that the trial court may ultimately decide that good cause does not exist. (Id. (underline added for emphasis).)

Given the express language of Robinson, plaintiff here was actually under no obligation to file any opposition to the present motion in the absence of defendant VMI obtaining from this Court a determination there was “good cause” to have this motion heard less than 30 days before the 1/12/2026 trial date.

Because defendant VMI (1) failed to obtain and notice a hearing date which was at least 30 days prior to trial; (2) noticed this motion to be heard less than 30 days before the 1/12/2026 trial date established back in April 2024; and (3) also failed to seek or obtain a determination of “good cause” to hear this motion less than 30 days before trial date, defendant VMI’s current motion shall be dropped from calendar.

Subject-Matter Jurisdiction. Finally, while defendant VMI’s reply may be correct in asserting that the Court’s lack of subject-matter jurisdiction (insofar as it is not a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

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waivable issue) may be raised at any time during litigation, it is incumbent upon VMI to present the issue of subject-matter jurisdiction (or lack thereof) by an appropriate and properly-noticed, duly-served, code-compliant motion but VMI has failed to do so in this instance. Accordingly, the question of subject-matter jurisdiction is not at this time properly before the Court and it need not be addressed here.

Disposition

For the reasons explained above, defendant VMI’s Motion for Summary Judgment or in the alternative, Summary Adjudication as against plaintiff Cunningham is DROPPED from calendar and the Court need not consider the merits of the arguments offered in support of or opposition to this motion.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC Rule 3.1312.)