Cole v. Super. Ct.

Filed 12/30/22 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE

STATE OF CALIFORNIA

GEOFF COLE et al., D081299

Petitioners, (San Diego County Super. Ct. No. 37-2019-00001928- v. CU-BC-CTL)

THE SUPERIOR COURT OF SAN DIEGO COUNTY,

Respondent;

MATT ZEINER et al.,

Real Parties in Interest.

ORIGINAL PROCEEDING in mandate. Richard S. Whitney, Judge. Petition granted. Vincent Paul Sorrentino, Attorney for Petitioners. Roger S. Bonakdar, Attorney for Real Party in Interest, Matt Zeiner. Petitioners Geoff Cole and Admiral’s Experience, Inc. seek a writ of mandate to compel the trial court to calendar their timely motion for summary judgment for a hearing before the start of trial. We notified the parties we were considering issuing a peremptory writ in the first instance (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178–180), and have read and considered the informal response and request for judicial

notice from real party in interest Matt Zeiner (Zeiner). Petitioners have also field a reply brief, which Zeiner has requested to strike. We grant the request for judicial notice, deny Zeiner’s request to strike the reply brief, and conclude that petitioners are entitled to peremptory writ relief. We also publish our decision to provide guidance on the deadline for filing a summary judgment motion that is served electronically. BACKGROUND In 2018, a dispute arose between petitioners and Zeiner after a trailer petitioners rented from Zeiner was destroyed. In January 2019, Zeiner initiated the underlying lawsuit against petitioners seeking to recover for the loss of the trailer. Petitioners electronically filed and served a motion for summary judgment on October 5, 2022. On October 5, 2022, petitioners’ counsel contacted the trial court to reserve a hearing date for the motion, and the earliest date available was January 27, 2023, which counsel reserved. Since trial in the matter was already set for January 20, 2023, the summary judgment motion would not take place until after trial had already begun. On November 9, 2022, petitioners filed an ex parte application to specially set a hearing date for the motion for summary judgment, or in the alternative, to continue trial and expert discovery dates until after the motion for summary judgment could be heard. On November 22, 2022, the court denied petitioners’ ex parte request, stating that no earlier dates were available to hear the motion. The court commented, “This is a 2019 case and the moving party waited until right before scheduled trial . . . to schedule a Motion for Summary Judgment.” Petitioners filed a motion for reconsideration and again requested a trial continuance to allow the motion