McMahon v. Superior Court

• Decision Date: 07 February 2003
• Docket Number: No. B162625.,B162625.
• Citation: McMahon v. Superior Court, 130 Cal.Rptr.2d 407, 106 Cal.App.4th 112 (Cal. App. 2003)
• Court: California Court of Appeals
• Parties: Ed McMAHON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; American Equity Insurance Company et al., Real Parties in Interest.

130 Cal.Rptr.2d 407

106 Cal.App.4th 112

Ed McMAHON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent American Equity Insurance Company et al., Real Parties in Interest.

No. B162625.

Court of Appeal, Second District, Division 8.

February 7, 2003.

Browne & Woods, Allan Browne, Michael J. Olecki, N. Kemba Extavour, Beverly Hills, and Gregory L. Doll, Los Angeles, for Petitioners.

No appearance for Respondent.

Morrison & Foerster and David B. Babbe, Los Angeles, for Real Parties in Interest American Equity Insurance Company, The Travelers Indemnity Company, Travelers Property Casualty Insurance Company and Travelers Insurance Group Holdings, Inc.

COOPER, P.J.

Absent consent of the parties, does a trial court have authority to shorten the minimum notice period for the hearing of a summary judgment motion? We answer this question in the negative and therefore issue a writ of mandate directing the trial court to vacate an order authorizing parties who move for summary judgment in this action to notice the hearing only 21 days in advance.

FACTUAL AND PROCEDURAL HISTORY

Ed McMahon and Pamela MeMahon filed this action for negligence, insurance bad faith and other claims against a total of 12 defendants. In July 2002, the McMahons moved for trial preference based on Ed McMahon's age and health. On October 15, 2002, a hearing took place on the McMahons' motion, as well as on various demurrers filed by some of the defendants. The trial court took the matters under submission.

On October 21, 2002, the trial court issued an order granting the preference motion and overruling the demurrers. The order set a trial date of April 14, 2003 and established dates and deadlines for various pretrial matters. With respect to summary judgment motions, the order provided as follows: "all motions for summary judgment are to be heard by April 1, 2003.... Moving parties are ordered to provide twenty-one (21) days notice (plus the additional five days if service is by mail) for said motions for summary judgment." The order offered no explanation for the departure from the minimum notice period provided for in the summary judgment statute, Code of Civil Procedure section 437c.¹

On November 1, 2002, the McMahons filed an ex parte application seeking to modify that aspect of the court's order requiring only 21 days notice for the hearing of summary judgment motions. The McMahons argued that a court has no authority to shorten the notice period provided for in subdivision (a). The court denied the application.

On November 5, 2002, the McMahons filed a petition for writ of mandate, challenging the shortened notice period for the hearing of summary judgment motions. We notified the parties of our intention to issue a peremptory writ of mandate in the first instance directing the trial court to vacate that portion of its October 21, 2002 requiring parties to give only 21 days advance notice for a summary judgment hearing. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180, 203 Cal.Rptr. 626, 681 P.2d 893.) We also invited plenary opposition to the petition from real parties in interest. We received a single opposition from American Equity Insurance Company, The Travelers Indemnity Company, Travelers Property Casualty Insurance Company and Travelers Insurance Group Holdings, Inc. (collectively the insurance defendants), and a reply to the opposition from the McMahons.

DISCUSSION

In their opposition, the insurance defendants argue that "trial courts have inherent authority to control the course of litigation before them, including calendar and docket management." That may be true, but it does not address the question whether, given the express language of subdivision (a), a court may shorten the notice period provided for in that subdivision.

Subdivision (a) provides in pertinent part: "The [summary judgment] motion may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct. Notice of the motion and supporting papers shall be served on all other parties to the action at least ... 75 days before the time appointed for hearing.... The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise." (Italics added.) This subdivision contains three minimum time requirements. However, the subdivision gives trial courts discretion to shorten only two of these time periods—the 60 days that must have elapsed since the general appearance of a party against whom the motion is directed before a summary judgment motion can be filed, and the minimum 30 days before trial when a summary judgment motion can be heard. The subdivision does not contain any language authorizing courts to shorten the 75-day notice period. "`"`It is a well recognized principle of statutory construction that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.'"'" (People v. Bland (2002) 28 Cal.4th 313, 337, 121 Cal.Rptr.2d 546, 48 P.3d 1107, accord 2A Singer, Sutherland Statutes and Statutory Construction (6th ed.2000) § 46:06, p. 194; see also Schlick v. Superior Court (1992) 4 Cal.4th 310, 315, 14 Cal.Rptr .2d 406, 841 P.2d 926 ["The Legislature in subdivision (j) [of Penal Code section 1538.5] made it explicit that suppression rulings by a magistrate at the preliminary hearing could be relitigated following a dismissal and the filing of a new complaint. The Legislature's failure to include a similar provision qualifying the broad language of [Penal Code] section 1538.5, subdivision (d) as applied to suppression rulings by the superior court leads us to conclude the omission was deliberate, and reflects an intention to bar relitigation of those rulings."].)²

Our conclusion finds support in two Court of Appeal decisions. In Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 75 Cal.Rptr.2d 681, the court held that a local rule authorizing trial courts to grant summary judgment/adjudication in favor of a nonmoving party that opposed such a motion was invalid because it was inconsistent with the procedural requirements contained in section 437c, including the requirement in effect at the time that a motion be filed at least 28 days before the hearing.

And more recently, Division Three of the Fourth Appellate District held that, where a party filed a joinder to a summary judgment motion only 22 days before the summary judgment hearing, the joinder was untimely. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636, 637, 115 Cal.Rptr.2d 780.)

The insurance defendants claim that construing subdivision (a) as barring courts from shortening the notice period for the hearing of summary judgment motions violates the separation of powers doctrine because it infringes on a court's "inherent authority to manage its calendar and control proceedings before it." While we agree that courts have inherent authority to manage their calendars and control proceedings before them, we reject the contention that our construction of subdivision (a) violates the separation of powers doctrine.

Article III, section 3 of the California Constitution provides: "The powers of State government are legislative, executive, and judicial. Persons charged with the exercise of one power may not exercise either of the others except as permitted by this Constitution." Although this language "may suggest a sharp demarcation between the operations of the three branches of government, California decisions long have recognized that, in reality, the separation of powers doctrine `"does not mean that the three departments of our government are not in many respects mutually dependent"' [citation], or that the actions of one branch may not significantly affect those of another branch." (Superior Court v. County of Mendocino (1996) 13 Cal.4th 45, 52, 51 Cal.Rptr.2d 837, 913 P.2d 1046.)

"Accordingly, the activities of one branch of government are not immune from regulation or oversight by another branch. [Citation.] One branch may take actions that significantly affect another branch. [Citations.] The Legislature routinely `enacts statutes that govern the procedures and evidentiary rules applicable in judicial and executive proceedings.' [Citation.] Indeed, one need only peruse the Code of Civil Procedure to be reminded that numerous statutes govern the procedures litigants must follow in the courts of this state. The Legislature does not necessarily violate the separation of powers doctrine even by legislating with regard to `inherent judicial power...