Garcia v.
Elhiani
Filed 9/19/13
Garcia v. Elhiani CA2/3
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
ALFREDO GARCIA,
Plaintiff
and Appellant,
v.
SIMON SHIMON ELHIANI as Trustee of the Elhiani/Lewkowicz
Living Trust,
Defendant
and Respondent.
B243426
(Los
Angeles County
Super. Ct.
No. BC467393)
APPEAL from a judgment of the Superior Court of
County, John L. Segal, Judge. Affirmed.
Law Offices of Morse Mehrban and
Morse Mehrban for Plaintiff and Appellant.
Law Offices of Chester &
Lewkowicz and Melissa Lewkowicz for Defendant and Respondent.
_______________________________________
Plaintiff Alfredo Garcia (plaintiff)
contends that the court erred in shortening the notice period for the demurrer
without good cause, and in sustaining defendant’s untimely served
demurrer. We disagree and affirm.
AND PROCEDURAL BACKGROUND
Plaintiff
filed this action in August 2011.
name="_ftnref1" title="">[1] In January 2012, plaintiff filed a first
amended complaint alleging one cause of action for violation of the Unruh Civil
Rights Act and the American Disabilities Act.
The complaint alleged that plaintiff, a paraplegic, patronized the
Elat Burger restaurant (Restaurant) and was unable to extract soap or paper
towels from the “dispenser[s]†there.
The complaint further alleged that removing these “architectural
barriers would have been readily achievable.â€
Defendant Simon Shimon Elhiani as Trustee of the Elhiani/Lewkowicz
Living Trust dated July 26, 1994 (defendant) was alleged to be the owner and
lessor of the building where the Restaurant was located. Does 1‑10 were alleged to be the
operators of the Restaurant.
Defendant
filed a demurrer on May 21, 2012, and set the hearing for October 9,
2012. On May 31, 2012, the court,
with a case management conference. The
court faxed notice of the new hearing date to plaintiff’s counsel on May 31,
2012. Defendant served the demurrer on
plaintiff by mail on June 4, 2012.
Plaintiff
did not file an opposition to the demurrer.
Plaintiff’s counsel appeared at the hearing. The court sustained the demurrer as
“unopposed†and granted plaintiff ten days leave to amend. On July 5, 2012, plaintiff filed a “Notice of Refusal to Amend
Complaint†stating only that, “[o]n this date, the Court sustained Defendant’s
demurrer with leave to amend. Plaintiff
will not amend his complaint but will appeal from the judgment dismissing his
action.†On July 10, 2012,
defendant moved ex parte for dismissal of the action. The court issued an order
acknowledging plaintiff’s notice of “ ‘Refusal to Amend Complaint’ â€
and granted plaintiff an additional ten days leave to amend. On July 24, 2012, the court noted that
“[p]laintiff has again chosen not to amend his complaint†and dismissed the
case with prejudice. Plaintiff timely
appealed.
Plaintiff
argues that the court erred in shortening the notice period for the demurrer
without good cause, and in sustaining defendant’s untimely served demurrer.
Code
of Civil Procedure section 1005 requires that at least 16 court days notice be
given for motions, “[u]nless otherwise ordered or specifically provided by
law.†(Code Civ. Proc., § 1005, subd.
(b).) Thus, the statute recognizes that the
court may shorten the notice period.
Furthermore, rule 3.1300 of the California Rules of Court authorizes
“[t]he court,
an order shortening time supported by a declaration showing good cause, [to]
prescribe shorter times for the filing and service of papers than the times
specified in Code of Civil Procedure section 1005.†(Cal. Rules of Court, Rule 3.1300, subd. (b)
[emphasis added].)
Here,
plaintiff contends that the court erred when it shortened the notice period for
the demurrer without good cause.
However, the court is authorized to shorten the notice period and, when
it acts on its own motion, there is no requirement that there be
a declaration showing good cause.
Furthermore, the record does not show that the court shortened the
notice period for the demurrer. The
record shows only that, on May 31, 2012, the court advanced the hearing
date on the demurrer to June 22, 2012, 16 court days later. The court did not authorize defendant to
serve the demurrer papers on a shortened time frame.
Plaintiff
also contends that the court erred in sustaining the demurrer when he had not
been provided with timely notice.
Defendant served the demurrer on plaintiff on June 4, 2012, only 14
court days before the June 22 hearing.
Therefore, defendant provided untimely notice of the demurrer. However, plaintiff never brought the untimely
service to the court’s attention.
Plaintiff does not dispute that his counsel failed to object to the lack
of adequate notice at the hearing.
Furthermore, although plaintiff subsequently filed a notice of “Refusal
to Amend Complaint,†plaintiff again failed to notify the court that he had
been untimely served. Plaintiff’s
failure to raise this objection in the trial court means he has forfeited
the argument here.
title="">[2] (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2006)
136 Cal.App.4th 212, 226.)
The
judgment is affirmed. Defendant shall
recover its costs on appeal.
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
WE CONCUR:
KLEIN,
P. J.
ALDRICH,
J.
name="_ftn1" title="">[1] The
original complaint is not included in the record.
name="_ftn2" title="">[2] We
decline to address the merits of the demurrer because, based on the limited
record before us, it is unclear on what basis the court sustained the demurrer.
