Litigation

Summary Judgment Motions: Strict Enforcement of Time Limits

By Bruce Nye

    I'm on record any number of places over the years as having said that California law and California culture both effectively make summary judgment a disfavored motion, and a new case provides further evidence.

    Code of Civil Procedure section 437c, subd. (a), provides that a hand-served motion for summary judgment must be served at least 75 days before the hearing, and the hearing must be heard more than 30 days before trial.  So the motion has to be served at least 105 days before trial, a deadline likely to jam the moving party.  For service by mail, you add 5 days to the 75;  for express mail, overnight service or facsimile (if the other side has consented to facsimile) you add two days.

    Two previous cases, McMahon v. Superior Court (2003) 106 Cal.App.4th 112, Urshan v. Musicians? Credit Union (2004) 120 Cal.App.4th 758 and Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645 all stand for the proposition that the court can't reduce the 75, 77 or 80 days notice period.  They are now joined by Robinson v. Woods (December 4, 2008) ___Cal.App.4th___, Second Appellate District No. B200145.

    But here's another wrinkle from the new Robinson case:  Robinson holds (in conformance with the summary judgment statute) that the court can't set the hearing within the 30 days before trial without a finding of good cause, and that the party opposing summary judgment can't be required to file substantive opposition until after that finding has been made.  Otherwise, it's a denial of due process.

Full post as published by CalBizLit on December 05, 2008 (boomark / email).