Indiamond, Inc. v. Jewelry Connection, Inc.

Filed 2/26/08 Indiamond, Inc. v. Jewelry Connection, Inc. CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Irving S. Feffer, Judge. Reversed and remanded with directions.

Law Office of Timothy Krantz and Timothy Krantz for Plaintiff and Appellant.

Felahy & Associates, Allen B. Felahy and Oscar Ramirez for Defendants and Respondents.

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The trial court granted a motion for summary judgment, rejecting the opponents claim of insufficient notice. We reverse.

FACTS

In February 2006, Indiamond, Inc. sued Jewelry Connection, Inc. and Kourosh Rahimian (who is included in our references to Jewelry Connection) on a variety of breach of contract theories arising out of the sale of diamonds. Jewelry Connection answered Indiamonds second amended complaint and trial was set for February 20, 2007. In December 2006, the trial court granted Jewelry Connections request to continue the trial to May 15, 2007.

On January 29, Jewelry Connection served by mail a motion for summary judgment, with hearing set for April 12 -- thus giving 73 days notice. (Code Civ. Proc., 12, 437c, subd. (a) [notice must be given 75 days before the hearing, plus 5 days when service is by mail].)[1] On March 29, Indiamond opposed the motion on the ground of insufficient notice (but not on the merits).

On April 4, Jewelry Connection applied ex parte for a continuance of the trial date, explaining that its lawyer had incorrectly computed the amount of time that is required between the service of a motion for summary judgment and the summary judgment hearing date. This was the courts ruling: [T]he current Motion for Summary Judgment hearing date and Trial date will remain as originally set. The court deems the [motion for summary judgment] to be validly served & filed & will be heard.

At the hearing held on April 12, over Indiamonds continuing objection that it had received inadequate notice, the trial court granted Jewelry Connections motion for summary judgment: Court . . . finds subject notice and service given by [Jewelry Connection] to [Indiamond] to have been adequate and acceptable, and there was no opposition filed. . . . [] The Motion for Summary Judgment is GRANTED.

Indiamond appeals from the judgment thereafter entered.

DISCUSSION

Indiamond contends the judgment must be reversed because it did not receive sufficient notice of the motion for summary judgment. We agree.

As relevant, subdivision (a) of section 437c provides: Notice of the motion [for summary judgment] and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. However, if notice is served by mail, the required 75-day period of notice shall be increased by five days if the place of address is within the State of California. . . . Because Indiamond promptly objected to the deficient service, and Jewelry Connection conceded the point in its request to continue the trial date, the trial court had no power to deem the motion validly served. (Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 299 [the trial court has no power to change the notice and filing periods of section 437c]; McMahon v. Superior Court (2003)106 Cal.App.4th 112, 115 [the trial court has no authority to shorten the notice period for a summary judgment motion].)

To avoid this conclusion, Jewelry Connection contends Indiamond waived the defect by opposing the motion. This is pure sophistry. The case cited by Jewelry Connection, Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, stands for the rule that an opposition on the merits of the motion waives any defect or irregularity in the notice -- which has nothing to do with this case because Indiamonds opposition was not on the merits (the only issue discussed is the defect in service).

Since 1913, the cases in which opposition has been construed as a waiver were cases in which the opposition contested the merits of the motion. [This] position [is] analogous to that of a defendant who, although not regularly served with summons, files an answer, or does any other act amounting to a general appearance. Under such circumstances, any defect in the service of process is waived. Here, however, the plaintiff made no opposition to the motion except to object to its consideration upon the ground of the insufficiency of notice. . . . His attitude is to be compared to that of a defendant appearing specially to question the courts jurisdiction of his person. It is difficult to see how a defendant can be held to have waived a valid objection when he has done no more than to insist upon it in the only manner that is open to him. Where the appearance in opposition to a motion is for this limited purpose, it does not constitute a waiver. (Bohn v. Bohn (1913) 164 Cal. 532, 538-539; and see Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930.) No showing of prejudice is required.

DISPOSITION

The judgment is reversed, and the cause is remanded to the trial court with directions to vacate its order granting summary judgment and set the case back on track for trial. Indiamond is awarded its costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, Acting P.J.

We concur:

ROTHSCHILD, J.

JACKSON, J.*

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*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] All section references are to the Code of Civil Procedure.