Case Name: Pentech Funding LLC v. Glamour Cosmetics, Inc., et al.
Case No.: 1-13-CV-252127

Currently before the Court is the motion for summary judgment of defendants Glamour Cosmetics, Inc. dba European Body Concepts and Irene Koufalis (“Defendants”).

Defendants move for summary judgment on the grounds that plaintiff Pentech Funding LLC (“Plaintiff”) failed to produce any documents in response to their discovery requests and this action is barred by the statute of limitations. Plaintiff contends that its claims were filed within the statute of limitations, Defendants’ motion was not timely filed and served, and Defendants’ motion otherwise fails to comply with the requirements of the Code of Civil Procedure and the California Rules of Court.

Code of Civil Procedure section 437c, subdivision (a) requires that a notice of motion for summary judgment and its supporting papers be served 75 days before the scheduling hearing, with at least 5 days added for service by first-class mail. The certificate of service included with Defendants’ motion for summary judgment is dated March 4, 2014, was filed March 25, 2014, and indicates that the motion was served by first-class mail, but does not indicate when it was mailed or where it was mailed from. The certificate of service is consequently inadequate. (See CCP, § 1013a [proof of service must indicate date and place of mailing].) Plaintiff, by contrast, states that the motion was served by mail on March 28 from Pennsylvania, but cites no evidence in support of this statement.

In light of the May 22 hearing date, Defendants were required to have either hand served their moving papers by March 7 (or if by mail from Pennsylvania, by February 25). Thus, even assuming that Defendants served their motion by mail within California on March 4, the earliest date reflected on the proof of service, service was untimely. In light of this defect, Defendants’ motion must be DENIED. (See McMahon v. Super. Ct. (American Equity Insurance Company) (2003) 106 Cal App 4th 112, 116 [“trial courts do not have authority to shorten the minimum notice period for summary judgment hearings”; noting that Code of Civil Procedure section 437c, subdivision (a) gives the court power to shorten time on other time requirements, but not the 75 day notice of hearing]; Urshan v. Musicians’ Credit Union (2004) 120 Cal App 4th 758, 763 [court may not shorten the notice period for a motion for summary judgment]; Robinson v. Woods (2008) 168 Cal App 4th 1258, 1267-1268 [where the moving party notices the hearing in less than the required time, notice must begin anew; the court cannot cure the defect by continuing the hearing for the missing number of days].)

Plaintiff’s objections to evidence are deemed MOOT.

The Court will prepare the order. The parties are reminded of the trial date of July 14, 2014.