COUNT AND RECOUNT: DON’T LET CALENDARING ERRORS DOOM YOUR MSJ

The field of civil litigation is littered with numerous pitfalls for the uninitiated. One of the most harrowing campaigns is perhaps the motion for summary judgment or adjudication. Governed primarily by the Code of Civil Procedure and the Rules of Court, the MSJ and MSA are powerful tools that can definitively resolve an entire case, or a single cause of action, respectively, without the need for trial. However, these motions are complex and costly. Practitioners need to carefully follow the procedural rules when filing such motions. Foundationally, one must ensure that an MSJ/MSA is timely filed and served.

In a recent case, Cole v. Superior Court of San Diego (Zeiner), the Fourth District Court of Appeal outlines how to properly calculate when MSJs and MSAs must be filed. Helpfully, the Court explains when such motions need to be made if they are being served electronically in the post-COVID world. Additionally, the Court clarifies the limits on a trial court’s discretion in setting a hearing on such motions.

In Cole, trial was set trial to begin in January 2023. 107 days prior to the first day of trial, the defendants electronically filed and served their MSJ. That same day, the defendants’ counsel reserved the earliest possible hearing date with the court. Unfortunately, the earliest possible hearing date was a week after trial was set to begin.

The defendants moved ex parte for an order to set the MSJ hearing before the trial, or alternatively, to continue the trial and expert discovery dates until after the MSJ could be heard. The trial court denied the ex parte request, stating that no earlier hearing dates were available, and commenting: “This is a 2019 case and the moving party waited until right before scheduled trial . . . to schedule a Motion for Summary Judgment.” On appeal, the plaintiff was more than happy to pile on, asserting that the defendants intentionally delayed filing their MSJ to avoid going to trial.

The Court of Appeal made short work of these issues. The Court held that the trial court did not have discretion and erred by refusing to set a hearing for the MSJ before the start of trial. It wrote: “Numerous courts of appeal have held that a trial court cannot refuse to consider a motion for summary judgment that is timely filed.” A trial court’s local rules and practices may not be applied so as to prevent the filing and hearing of such a motion. Here, the defendants electronically filed and served the MSJ in a timely fashion. Thus, the trial court was required to provide them with a hearing.

Generally speaking, MSJs must be filed and served 105 days before trial. Both motions require 75-days’ notice. They must also be heard 30 days before trial. At the same time, the notice period is extended based on the method of service used: by 5 days if served by mail within California, by 10 days if served outside of California but within the United States, and by 20 days if outside the United States. Additionally, the period is increased by 2 court days if the notice is served by facsimile, express mail, or another method of delivery providing for overnight delivery.

Despite this detail about extensions for service, however, Section 437c is silent as to electronic service. The Cole court explained that Section 1010.6, which sets forth the rules for electronic service generally, and was amended in 2020 to make such service easier, governs electronic service of MSJs and MSAs. Accordingly, if an MSJ is electronically served, then the 75-day notice period shall be extended by 2 court days.

Therefore, in Cole, the defendants’ deadline for electronically filing and serving their MSJ was 107 days prior to the trial date (75 days for notice, plus 2 for electronic service, plus 30 days for the date of hearing). This is the exact date on which petitioners did electronically file and serve their motion.

Because petitioners strictly complied with Sections 437c and 1010.6, the trial court lacked discretion to deny them a hearing date before trial, irrespective of the trial court’s impacted schedule or the defendants’ alleged improper motives.

In sum, a skilled litigator must be keenly aware of deadlines and the impact they have. Cole is a good reminder that statutes govern not only the conduct of parties, but also the conduct of judges.