Urshan v. Musicians' Credit Union

• Citation: 120 Cal.App.4th 758,15 Cal.Rptr.3d 839
• Decision Date: 14 July 2004
• Docket Number: No. B160176.,B160176.
• Court: California Court of Appeals
• Parties: Sydney URSHAN, Cross-complainant, Cross-defendant and Appellant, v. MUSICIANS' CREDIT UNION, Cross-defendant, Cross-complainant and Respondent.

15 Cal.Rptr.3d 839

120 Cal.App.4th 758

Sydney URSHAN, Cross-complainant, Cross-defendant and Appellant, v. MUSICIANS' CREDIT UNION, Cross-defendant, Cross-complainant and Respondent.

No. B160176.

Court of Appeal, Second District, Division 7.

July 14, 2004.

Sydney Urshan, in propria persona, for Cross-complainant, Cross-defendant and Appellant.

Winn and Sims and Michael L. Murphy for Cross-defendant, Cross-complainant and Respondent.

JOHNSON, J.

In this case we hold the trial court did not have authority to shorten the minimum notice period for hearing a motion for summary judgment in the absence of the parties' consent. Accordingly, we reverse the summary judgment and remand for further proceedings.

FACTS AND PROCEEDINGS BELOW

In 1995 appellant, Sydney Urshan, received a loan for $30,000 from respondent Musicians' Credit Union (Musicians). Urshan provided his 1952 classic Bentley as security for the loan. The loan agreement required 48 monthly payments of approximately $800, beginning in November 1995. In August 1997 Urshan defaulted on the loan. The loan account had an outstanding balance of over $29,000.

Urshan also had a credit card account through Musicians. When he stopped making payments Urshan's credit card account had a balance of nearly $8,000.

Urshan did not respond to Musicians', or its lawyers', written demands for payment. Musicians wrote the amounts off as bad debts and in April 1999 assigned Urshan's loan and credit card account balances to a collection agency.

In October 1999 Lori Ross, doing business as, Commercial Collection Services of America, filed suit against Urshan through counsel, Thomas L. Cohen.

On February 4, 2000, Urshan filed a cross-complaint against Musicians, Lori Ross, Lori Ross, d.b.a., Commercial Collection Services of America, Thomas Lawrence Cohen, Thomas L. Cohen, d.b.a., Commercial Collection Services of America, Law Offices of Thomas L. Cohen and Thomas Cohen & Associates, and others.

On February 14, 2000, Commercial Collection Services of America reassigned the right to collect Urshan's accounts to Musicians. Thereafter, on May 2, 2000, Musicians filed a cross-complaint against Urshan to collect the balances due on his delinquent bank loan and credit card account.

On February 20, 2001, the court sustained demurrers without leave to amend to Urshan's second amended cross-complaint and dismissed Lori Ross, Lori Ross, d.b.a., Commercial Collection Services of America, Thomas Lawrence Cohen, Thomas L. Cohen, d.b.a., Commercial Collection Services of America, Law Offices of Thomas L. Cohen and Thomas Cohen & Associates, from the action.

Once dismissed as a defendant in Urshan's cross-complaint, and having previously reassigned all causes of action against Urshan to Musicians, Lori Ross, d.b.a., Commercial Collection Services of America, dismissed her original complaint against Urshan with prejudice on March 12, 2001.

On August 8, 2001, Musicians served notice it sought an order for a writ of possession of Urshan's Bentley, the collateral securing the loan. The date set for a hearing on Musicians' request was September 11, 2001. Urshan filed no opposition. On September 11, 2001, the courts were closed due to the terrorists' attacks. Musicians provided notice of the continued hearing date of September 17. Urshan apparently did not receive notice of the continued hearing date until the date of the hearing and did not appear. The court granted Musicians' request for a writ of possession. Musicians recovered the car on November 5, 2001.

The date set for trial was November 26, 2001. Despite numerous attempts the parties did not reach a settlement agreement. On September 27, 2001, the last day before the discovery cutoff date, Urshan served Musicians with a demand for production of documents, form interrogatories and special interrogatories. Musicians responded to Urshan's requests, providing most of the information he sought.

On November 5, 2001, Urshan filed ex parte motions to compel Musicians to provide further discovery responses. The court deferred ruling on Urshan's motion until the final status conference.

The court held the final status conference on November 16, 2001. At the hearing the court denied Urshan's motions to compel as untimely and because he had made insufficient efforts to "meet and confer" before filing the motions to compel. The court deferred ruling on Urshan's motion to quash the writ of possession until trial. The court also deferred ruling until trial on Urshan's motion to dismiss on the ground res judicata barred Musicians' action. Urshan had argued Commercial Collection Services of America's dismissal of its complaint with prejudice had sufficient res judicata effect to preclude litigation of the identical causes of action raised in Musicians' cross-complaint.

Trial was set for a bench trial. However, just before the final status conference Urshan secured a jury fee waiver and he requested a jury trial. Musicians pointed out all remaining issues in the case were legal questions for the court to resolve. Musicians' counsel concluded his argument by observing, "So I just don't see where this case rises to the level where there are any issues to be tried by a jury." In response the court stated, "Why don't you file a motion for summary judgment?" Musicians' counsel agreed such a motion would be appropriate. However, counsel pointed out fewer than 28 days remained before the scheduled trial date. (In fact, only 10 days remained.) The court replied, "Well, I think, to clear this up, I would shorten time. I don't think it makes sense to call a jury up where the issues may be all legal."

The court asked Musicians whether it wished the court to issue an order shortening time to permit it to file a motion for summary judgment. Musicians thanked the court in response to its suggestion. The court did not solicit Urshan's views on the subject, and did not obtain his consent to shorten the notice period for Musicians to file a motion for summary judgment. The court then set a briefing schedule as follows: Musicians had to file its motion for summary judgment three days later on the next court day, or November 19, 2001, and Urshan had to file his opposition two days later on November 21, 2001, by 10:00 a.m. The court set the hearing on the motion for summary judgment for the scheduled trial date of November 26, 2001.

On November 26, 2001, the court reviewed Musicians' motion and Urshan's opposition and heard oral argument. The court concluded there were no triable issues of material fact warranting a trial. Accordingly, the court granted Musicians' motion for summary judgment. The court awarded Musicians damages of approximately $44,000 plus costs and attorney fees, to be reduced by the proceeds from sale of the Bentley. Final judgment entered February 2002, which including fees and costs, was for a total amount of over $70,000.

Urshan appeals from the judgment.

DISCUSSION

I. THE COURT LACKED AUTHORITY TO SHORTEN TIME FOR NOTICE OF THE SUMMARY JUDGMENT HEARING.

Urshan challenges numerous aspects of the trial court proceedings in this case. However, we find dispositive Urshan's argument the trial court abused its discretion by shortening time to permit Musicians to file, and to hear, a motion for summary judgment. Urshan urges this is especially so because the trial court did so even after Musicians alerted the court insufficient days remained before trial to satisfy the then statutory requirement of a minimum of 28 days' notice.

In 2001 Code of Civil Procedure section 437c, subdivision (a) provided: "Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding. The 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 28 days [now 75] before the time appointed for the hearing. However, if the notice is served by mail, the required 28-day period of notice shall be increased by five days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States, and if the notice is served by facsimile transmission, Express Mail, or another method of delivery providing for overnight delivery, the required 28-day period of notice shall be increased by two court days. The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading."¹

As the statutory language indicates, a trial court has discretion to shorten the initial 60-day period to bring a motion for summary judgment on a showing of good cause. Similarly, a trial court has discretion to shorten the 30-day period in which a motion for summary judgment must be heard before trial where circumstances warrant. However, the Legislature did not similarly authorize a trial court to shorten the minimum notice period for hearings on summary judgment motions. Such discretionary language is notably absent from the statute. Moreover, the statutory language regarding minimum notice is mandatory, not directive. This section of the statute states, "Notice of the motion and supporting papers shall be served on all other parties to the action at least 28 days [now 75] before the time appointed for hearing"² and twice thereafter refers to the 28-day period of notice as being "required."

After the summary judgment in this case, our...