A Timely MSJ Is Entitled to a Timely Hearing, Appellate Court Holds

Timothy Kowal, Esq.
January 6, 2023

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.

That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The deadlines for filing a motion for summary judgment are set by statute, namely, Code of Civil Procedure section 437c(a)(2). The moving party may need to allow for additional time depending on the form of service.

Here, the 75-day notice period for a hearing at least 30 days before trial, plus two court days for electronic service under section 1010.6(a)(3), means the defendant needed to file the MSJ at least 107 days before trial. Luckily, the defendant did that, filing exactly 107 days before trial.

Was that cutting things a little close? Perhaps. But it was timely. And as the court noted, “Numerous courts of appeal have held that a trial court cannot refuse to consider a motion for summary judgment that is timely filed.” Quoting one of those cases, the court related that “"We are sympathetic to the problems the trial courts experience in calendaring and hearing the many motions for summary judgment. However, the solution to these problems cannot rest in a refusal to hear timely motions.””

So the trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”

The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”

The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.

H/T to Michael Shipley for spotting this case.

Tim Kowal  is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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