Case Number: BC608602 Hearing Date: August 06, 2018 Dept: 37

CASE NAME: Kuigoua v. California Corrections Health Care Services, et al.

CASE NO.: BC608602

HEARING DATE: 8/6/18

DEPARTMENT: 37

CALENDAR NO.: 11

DATE FILED: 1/28/16

FSC/TRIAL DATE: Defendant’s Motion for Summary Judgment granted on May 17, 2018; Judgment entered May 31, 2018

NOTICE: OK

SUBJECT: Motion for New Trial

MOVING PARTY: Plaintiff Arno P. Kuigoua

OPPOSING PARTY: Defendant California Corrections Health Care Services
COURT’S TENTATIVE RULING

The court DENIES Plaintiff Arno P. Kuigoua’s motion for a new trial because it was not timely served, as is required by the Code of Civil Procedure. Counsel for Defendant California Corrections Health Care Services to give notice.
STATEMENT OF THE CASE

This employment case arises from allegations that Defendant California Corrections Health Care Services (“CCHCS”) discriminated against and wrongfully terminated Plaintiff Arno Patrick Kuigoua (“Kuigoua”) on the basis of his gender, in violation of the Fair Employment and Housing Act (“FEHA”), Labor Code and Health and Safety Code.

Plaintiff filed the First Amended Complaint on June 14, 2016, alleging six causes of action for: (1) retaliation in violation of the FEHA; (2) gender discrimination in violation of the FEHA; (3) failure to prevent discrimination or retaliation in violation of the FEHA; (4) retaliation in violation of Labor Code, section 1102.5, subdivisions (b) and (c); (5) violation of Health and Safety Code, section 1278.5 and (6) retaliation in violation of Government Code, sections 8547.3, subdivision (c) and 8547.8, subdivision (c).

Defendant’s CCHCS’ motion for summary judgment, or in the alternative, summary adjudication (”MSJ”) came to hearing on May 17, 2018. After hearing the parties’ arguments and considering all papers, the court granted the MSJ. The court entered Judgment in Defendant’s favor against Plaintiff on May 31, 2018, and Defendant filed and served notice of the Judgment on June 14, 2018. Plaintiff filed a notice of motion for new trial on June 29, 2018 by mail. The court set the hearing on the subject motion for August 6, 2018, and matter now comes to hearing.

DISCUSSION
I. Timeliness of Motion

A party intending to move for a new trial must file and serve notice of the intent either after the decision is rendered and before the entry of judgment “or within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest . . . .” (Code Civ. Proc., § 659, subd. (a).) Pursuant to section 659, subdivision (b), the times specified in subdivision (a) may not be extended by order or stipulation or by the provisions of Code of Civil Procedure, section 1013 that extend the time for exercising a right or doing an act where service is by mail. (Id., § 659, subd. (b).) Accordingly, the notice of intent must be filed and served by the earlier of 15th day from the date of mailing of the notice of entry of judgment or 180 days after entry of the judgment. (Code Civ. Proc., § 659.)

Plaintiff filed the subject motion on June 29, 2018, indicating his intent to move for a new trial. This was within 15 days of Defendant’s service of the notice of entry of Judgment on June 14, 2018. Accordingly, Plaintiff timely filed a notice of his intent to move for a new trial.

Plaintiff’s filed proof of service for the motion indicates that he served the motion and notice of his intent on June 29, 2018 by U.S. Mail, overnight delivery. As the service was performed on June 29, 2018 by overnight delivery, Defendant could not have received notice before June 30, 2018, which was the 16th day after written notice of the entry of the Judgment was served by Defendant. Accordingly, service was untimely.

“It has long been held that the power to grant a new trial may be exercised only by following the statutory procedure and is conditioned upon the timely filing of a motion for new trial.” (Smith v. Superior Court (1976) 64 Cal.App.3d 434, 436.) The failure to serve the notice upon all adverse parties deprives the superior court of jurisdiction to grant the motion.” (Caruthers Bldg. Co. v. Johnson (1916) 174 Cal. 20, 24.) As Plaintiff did not timely serve notice of his intent to move for a new trial to Defendant, the motion must be denied.
II. Conclusion

For these reasons, the court DENIES Plaintiff’s motion for a new trial.