Metropolitan News-Enterprise


Monday, February 10, 2003


Page 3


C.A. Rules Court May Not Shorten Summary Judgment Notice Period


By a MetNews Staff Writer


A high-profile lawsuit in which television personality Ed McMahon claims a botched repair job produced mold that killed his dog produced a decidedly mundane but important legal ruling Friday: Trial courts may not shorten the statutory minimum notice period for hearing a summary judgment motion.

Los Angeles Superior Court Judge Reginald A. Dunn, since retired, erred when he permitted insurance company defendants to move for summary judgment in McMahon’s bad faith suit on notice a week shorter than provided for by statute, this district’s Court of Appeal ruled.

In an opinion by Presiding Justice Candace Cooper of Div. Eight, the court rejected the defendants’ assertion that stripping the court of power to shorten the notice period is an unconstitutional violation of separation of powers principles.

“While courts have inherent authority to manage their calendars and control proceedings before them—the insurance defendants do not explain, and we fail to see, how a statute precluding courts from shortening the notice period for the hearing of summary judgment motions defeats or materially impairs this authority,” Cooper said. “Indeed, legislation that places far greater restrictions on a court’s ability to control its calendar has been approved.”

Cooper cited laws requiring courts to designate unpaid furlough days, mandatory preference for actions brought by persons under 14 years of age, preference for actions brought by persons over the age of 70. None of those mandates on courts have been held to violate separation of powers, the presiding justice said.

McMahon, best known for his long role as Johnny Carson’s announcer on “The Tonight Show,” his television show, “Star Search” and a bevy of Budweiser ads, benefited from the ruling that courts may be instructed by the Legislature to give priority to claims of the elderly.

“Because it is potentially case dispositive and usually requires considerable time and effort to prepare, a summary judgment motion is perhaps the most important pretrial motion in a civil case,” Cooper said. “Therefore, the Legislature was entitled to conclude that parties should be afforded a minimum notice period for the hearing of summary judgment motions so that they have sufficient time to assemble the relevant evidence and prepare an adequate opposition.”

The ruling arises from a negligence and bad faith lawsuit brought by McMahon and his wife, Pamela, against 12 defendants.

Dunn issued an order granting a preference motion for the trial based on McMahon’s age and health and establishing various deadlines. The order included an instruction that moving parties must provide 21 days’ notice for summary judgment motions.

At the time, Code of Civil Procedure Sec. 437c(a) provided for a minimum 28-day notice period. The statute has since been amended and requires 75 days.

The McMahons challenged the shortened notice period, filing a petition for writ of mandate.

The writ was granted.

“While we agree that courts have inherent authority to manage their calendars and control proceedings before them,” Cooper said, “we reject the contention that our construction of subdivision (a) violates the separation of powers doctrine.”

McMahon’s suit is just one of numerous cases that have raised awareness of the problem of toxic mold.

According to news accounts, his hillside home near Coldwater Canyon remains empty as the parties fight over who has to clean it up. The problem reportedly began with a broken water pipe that flooded part of the house and allegedly started the mold problem. The mold allegedly sickened household staff and killed the McMahons’ sheepdog, Muffin.

The $20 million suit was filed against American Equity Insurance Co., insurance adjusters and environmental cleanup contractors.

The case is McMahon v. Superior Court, B162625.


Copyright 2003, Metropolitan News Company