Bank of America v. Henkin

Opinion

EAGLESON, J.

In this avoidable single-issue appeal, we conclude that respondent’s motion for summary judgment complied with the 28-day notice requirement of Code of Civil Procedure section 437c, subdivision (a).

1

We

[921]

therefore affirm the judgment entered in respondent’s favor and impose sanctions against appellant’s attorney for pursuing a frivolous appeal.

Facts

Respondent moved for summary judgment after filing a complaint to recover sums owed by appellant on a promissory note. On June 18, 1985, the motion was personally served on Robert James Smith, who is appellant’s counsel of record both in the trial court and on appeal. At the July 16, 1985 hearing, the trial court counted the days one-by-one and, over Smith’s objection, concluded that the requisite 28 days’ notice had been given.

2

After further finding that no triable issue of fact existed, the court granted the motion.

Appellant, through Attorney Smith, then moved to vacate the summary judgment on the grounds that there had been only 27 days’ notice. The court denied this motion and imposed $750 sanctions payable by appellant “and/or” counsel. The court found that because counsel had persisted in erroneously counting the days between service of the motion and the hearing, the motion to vacate was frivolous and brought in bad faith for purposes of delay. (§ 128.5.)

3

The instant appeal is taken from the summary judgment entered in respondent’s favor.

4

Discussion

Appellant makes the same error here that he made below. He begins by correctly citing section 12 for the proposition that the time for notice is computed by excluding the first day (June 18, 1985) and including the last day (July 16, 1985).