Metropolitan News-Enterprise


Monday, December 8, 2008


Page 3


Shortened Notice Violated Due Process, Court of Appeal Rules


By a MetNews Staff Writer


A Los Angeles Superior Court  judge violated due process by giving litigants only a four-day continuance after their adversaries improperly gave them only 76 days’ notice of a summary judgment hearing, this district’s Court of Appeal has ruled.

“The importance of providing the minimum [80-day] statutory notice of a summary judgment hearing cannot be overemphasized,” Presiding Justice Robert Mallano wrote Thursday for Div. One.

The court overturned a judgment in favor of Aaron Woods and Woodland Properties, LLC in a quiet title action brought by Terry Robinson and Stephanie Hammonds.

The motion for summary judgment was served by mail on Jan. 26 of last year. It noticed a hearing date of April 12, 76 days after mailing and 18 days before trial.

The plaintiffs objected in writing on the ground the motion was set less than 80 days—75 days plus five days for mailing within the state—following service, as required by Code of Civil Procedure Sec. 437c(a), and that it was set for less than 30 days before trial without a finding of good cause by the judge, as required by Sec. 437c(b)(3).

The plaintiffs did not brief the merits or file a separate statement of undisputed and disputed facts.

At the noticed hearing, Judge James A. Kaddo agreed that the notice was untimely for the reasons stated by the plaintiffs, and also found that the defendants exceeded the 20-page briefing limit without leave of court. But he chided the plaintiffs for not filing a separate statement of facts, saying he had “imperfections” and “procedure problems” on both sides.

The judge then continued the hearing for four days, advised defendants to file a declaration explaining why the motion should be heard within 30 days of trial, “waived” the 20-page limit, and invited the plaintiffs to file a separate statement.

At the continued hearing the following Monday, Kaddo announced that he had received the defendants’ faxed declaration late Friday, read it that morning, and concluded there was good cause to hear the motion that day. Over the objection of plaintiffs’ counsel, the judge then proceeded to consider the merits and granted the motion, noting that the plaintiffs had not filed a separate statement despite his invitation to do so.

Mallano, however, said the procedure used by the trial judge was improper.

While case law suggests that an opposing party may fully brief the merits of a summary judgment motion without waiving a timeliness objection, the presiding justice explained, a party cannot be compelled to argue the merits on less than timely notice. Thus, when the judge found the notice to be untimely, his only options were to continue the trial and give a new 75-day notice, or take the motion off calendar, the presiding justice said.

It was also error, Mallano went on to say, to consider the request to hear the motion less than 30 days before trial on the same day the motion was heard. “Plaintiffs had no time to prepare an opposition on the merits after the court granted the defendants’ request to hear the motion within 30 days of the trial date — another due process violation and abuse of discretion,” the presiding justice wrote.

Nor, Mallano elaborated,  was there any reason to force the plaintiffs “to seek a continuance of the trial to remedy defendants’ mistake in setting the hearing within 30 days of the trial date absent prior court permission.”

Eric Ibisi represented the plaintiffs on appeal. There was no appearance for the defendants.

The case is Robinson v. Woods, 08 S.O.S. 6546.


Copyright 2008, Metropolitan News Company