Legal Question in Civil Litigation in California

Re: filed MSJ shorter than 75 days

Yes, you're correct. The case you want to cite is McMahon, sorry don't have the cite handy. You can find it in annotations.

Good luck,

Re: filed MSJ shorter than 75 days

What are you trying to appeal? Did the court grant the MSJ? Or is the matter pending and you want to object to the briefing schedule given by the court?

Re: filed MSJ shorter than 75 days

If the motion is still pending you should apply ex parte for a continuance. Talk to opposing counsel first to find out if they agree, but even if they do you will still need to apply ex parte for the extra time; a stipulation between the parties won't obligate the court to reschedule the hearing.

If the court refuses to continue the date you can petition the Court of Appeal for a writ of mandate ordering it to do so. Most writ petitions fail, but yours may well succeed. The less time you were given, the better your chances will be.

If the motion has already been decided, you can appeal the decision on its merits. You can also argue that the scheduling was a violation of your rights, but the Court of Appeal is unlikely to accept that argument unless you can show both that you brought the error to the trial court's attention in a timely manner and that having additional time would likely have led to a more favorable result.

If you are interested in either bringing a writ petition or filing an appeal, please feel free to contact me directly. I am a certified appellate specialist (per the State Bar) and I have a great deal of experience in these areas.

Re: filed MSJ shorter than 75 days

All of the previous posts assume that a Motion for Summary Judgment must be filed at least 75 days prior to the hearing. They don't. The key word here is "filing."

Notice of a motion for summary judgment must be "served" at least 75 days prior to the hearing. "Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before

the time appointed for hearing." (Code of Civ. Proc. sec. 437c subd. (a).)

If the motion is served by mail, this 75 day must be extended by five days if it is served by mail, and the recipient is in the State of California. There are longer periods if the recipient is out of state.

The Motion for Summary Judgment must be "filed" with the court no later than sixteen (16) court days prior to the hearing. (Code of Civ. Proc. sec. 1005 subd. (b).)

The issues raised by the other attorneys are collateral to your question, as you have worded it. The court does not have authority to shorten the 75 day period for "serving" the motion. (McMahon v. Superior Court (2003) 106 Cal.App. 4th 112, 116; Urshan v. Musician's Credit Union (2004) 120 Cal.App. 758, 763.)

You cannot appeal from the trial court's setting of hearing dates, but can challenge it with a petition for a writ of mandate. (See McMahon, supra.)

Very truly yours,