Metropolitan News-Enterprise


Thursday, July 15, 2004


Page 3


C.A. Rules Judge Lacks Power to Shorten Period for Notice of Hearing on Summary Judgment Motion


By a MetNews Staff Writer


A trial judge cannot, without the consent of all parties, shorten the notice period required before a summary judgment motion may be heard, this district’s Court of Appeal ruled yesterday.

The court’s Div. Seven reversed a judgment entered in a litigation between a credit union and a member over a loan. Los Angeles Superior Court Judge Stephen D. Petersen issued an order 10 days before a scheduled jury trial requiring expedited briefing and a hearing on a summary judgment motion after the credit union’s lawyers asserted there were only legal issues to be resolved.

Peterson asked the credit union attorneys whether they wanted an order shortening time which would permit the motion to be heard on the scheduled trial date, and they agreed. But the judge did not obtain the consent of the unrepresented debtor, or even ask his opinion.

 The procedure was improper and unauthorized by Code of Civil Procedure Sec. 437(c), Justice Earl Johnson explained.

That section allows a judge, for good cause, to order a summary judgment motion to be heard less than the normal 30 days before trial, Johnson noted. Judges may also shorten the 60 period after a general appearance which is normally required before a motion may be made, again for good cause.

But the portion of the statute which at the time required notice of a summary judgment motion to be served at least 28 days before a hearing contains no language permitting a judge to order a shorter period, Johnson said. The statue has since been amended, and the required notice period is now 75 days.

“Such discretionary language is notably absent from the statute,” Johnson wrote.  “Moreover, the statutory language regarding minimum notice is mandatory, not directive.”

He noted that the court’s Div. Eight reached a similar conclusion last year in McMahon v. Superior Court, 106 Cal.App.4th 112.

The justice explained:

  “In the present case the court’s briefing schedule provided less than 10 days’ total notice before the hearing—far short of the then-required minimum 28 days. Each side had less than two days to prepare a motion or opposition. Not only was this shortened time period violative of the statute, notice and opportunity to prepare to be heard was so minimal the procedure was tantamount to a denial of due process. In other words, what occurred in the present case bordered on granting the motion for summary judgment sua sponte, which undisputedly would have deprived the opponent of a fair trial.”

Johnson rejected the credit union’s arguments that the failure of the member, Sydney Urshan, to object, and his compliance with the briefing schedule, constituted a waiver.

Urshan’s “participation in the proceedings was the direct result of the court’s repeatedly expressed desire to avoid a trial and to resolve the case through a motion for summary judgment by the scheduled trial date,” the justice declared. In light of Petersen’s strong views, he commented, “objections would have been futile.” 

Johnson added:

“In any event, waiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence. Waiver of minimum notice in this context should only be based on the affirmative assent of the affected parties. [T]he court did not solicit, and did not secure, Urshan’s consent to the shortened notice period. His silence and, in essence, forced participation in the proceedings given the factual circumstances of this case, is not a valid substitute for knowing consent to shortening the statutorily mandated notice period.”

Urshan represented himself on appeal, while the credit union was represented by and Michael L. Murphy of Winn and Sims in Fullerton.

The case is Urshan v. Musicians’ Credit Union, B160176.


Copyright 2004, Metropolitan News Company