2012-00122011-CU-MM

Mahbooba Nasher Mojaddidi vs. Hong Hoang

Nature of Proceeding:    Motion to Set Aside

Filed By:  Mojaddidi, Mahbooba N.

Self-represented Plaintiff Mojaddidi’s Motion Requesting Court Order to Set Aside
Defendant’s Memorandum of Costs, is DROPPED from the Court’s calendar for
insufficient notice.

C.C.P., sec. 1005 requires 16 court days’ notice of motion, with five additional calendar
days for service by US Mail.

Code of Civil Procedure section 1005 requires that the 16 court days be computed
before counting the five calendar days for service by mail.  See, Barefield v.
Washington Mutual Bank (2006) 136 Cal.App.4th 299, 303.

Effective Jan 1, 2011, C.C.P., sec. 12c provides for calculation of last day to perform
act before hearing date as follows:

“(a) Where any law requires an act to be performed no later than a specified number of
days before a hearing date, the last day to perform that act shall be determined by
counting backward from the hearing date, excluding the day of the hearing as provided
by Section 12.”

“(b) Any additional days added to the specified number of days because of a particular
method of service shall be computed by counting backward from the day determined in
accordance with subdivision (a).”

Here, the moving papers are declared to have been served by US Mail on Nov. 14,
2013, with the motion set for hearing on Dec. 10, 2013.

However, opposing party defendant provides evidence that the moving papers were
not mailed until Nov. 21, 2013.  (Garberson Dec., para. 3, Exhs. B and C.)  As the
Court’s original of the moving papers were not filed with the Court until Nov. 22, 2013,
the Court concurs that the proof of service misrepresents the actual date of mailing.

That notice, counting backwards from Dec. 10, 2013 to Nov. 21, 2013, allowed only 11
court days’ notice instead of 16 court days, as Nov. 28 and 29 were Court holidays.
The service date allowed none of the requisite five additional calendar days for service
by mail.

Even if the Court were to accept the truth of the Nov. 14, 2013 date on the plaintiff’s
proof of service, it would be untimely, as the motion was due filed and served by Nov.             8, 2013.

Defendant has objected to the untimely notice and untimely challenge to the
Memorandum of Costs, which was due filed and served not later than Nov. 18, 2013,
as the Memorandum of Costs was served on by mail on Oct. 28, 2013. The Court
need not address the merits of the motion, as it is dropped.