Motion for Summary Judgment
The Court is inclined to deny without prejudice the Motion by Plaintiff American Express Centurion Bank for Summary Judgment or, in the alternative, Summary Adjudication.? The Motion failed to comply with the 75-day notice requirement under CCP ?437c.? Although this Motion was served by U.S. Mail on 9/20/16, which is 76 days prior to the originally noticed hearing date of 12/5/16, Plaintiff failed to factor in the additional 5 days required for service by mail.? In order to provide the proper notice, the Motion should have been either personally served on 9/20 or 9/21, or served by mail on 9/16/16 (75 days + 5 days for mail service).
The continuance of the hearing to 12/19/16 does not cure this defect.?? A court cannot cure a defect in notice by continuing the hearing for the missing number of days.? Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.? (Similarly, in Robinson, the moving party gave 76 days of notice on a motion that was mailed.)? Plaintiff must give new notice in compliance with the Code of Civil Procedure.? Id. at 1267-1268.
Plaintiff is to give notice of this ruling.