Motion for Summary Adjudication.

Defendant MBSB Legacy LP’s motion for summary adjudication is DENIED in its entirety.

Defendant MBSB Legacy LP (Defendant) moves for summary adjudication of the first, second, and third causes of action of the First Amended Complaint (FAC) of Plaintiff Ali Reza Nikjou aka Kevin Nikjou dba AAA Remodeling, Inc. (Plaintiff).

A motion for summary adjudication requires that notice be given 75 days prior to the hearing, with an additional two court days added if the notice is served electronically. (Civil Proc. Code, § 437c, subd. (a)(2).) This notice period is mandatory; the court does not have the discretion to shorten the notice period absent a stipulation by the parties. (See McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116; Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4th 758, 763 & 764-766.) Nor can the court infer waiver of the statutory notice period from a plaintiff’s silence. (Urshan v. Musicians’ Credit Unionsupra, 120 Cal.App.4th at p. 768.)

Here, the proof of service attached to the notice of motion and motion reflects that MBSB served the notice of motion by electronic mail on 07/13/2022. (ROA 187 [Notice of Motion and Motion for Summary Adjudication].) Because the notice was served on Plaintiff electronically, it should have been served two court days earlier, on or before 07/11/2022. There is no evidence that Plaintiff agreed to shorten the 75-day notice period. Therefore, notice is untimely.

In addition, Civil Procedure Code section 437c(f)(2) provides: “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (Civil Proc. Code, § 437c, subd. (f)(2).)

Similarly, section 1008(b) provides that a party who originally made an application for an order which the court refused in whole or in part may make a subsequent application for the same order “upon new or different facts, circumstances, or law.” (Civil Proc. Code, § 1008, subd. (b).) The party making the application shall show “by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Id.)

This is MBSB’s second motion for summary adjudication of the first, second, and third causes of action. On 03/07/2022, the court denied summary adjudication of those causes of action. (See ROA 138 [03/07/2022 Minute Order].)

This motion seeks summary adjudication of the same issues. Defendant’s argument that the third cause of action (negligence) fails because Plaintiff cannot establish a non-contractual duty is the same argument made by Defendant in the previous motion for summary adjudication that Plaintiff could not establish tort liability completely independent of contract.

Defendant also claims that the first cause of action (nuisance) fails because it is a restatement of the negligence cause of action and that the second cause of action (breach of contract) fails because Plaintiff did not give 30-day notice. Defendant fails to show what newly discovered facts or circumstances underlie these arguments or why they could not have been asserted in the first motion for summary adjudication. (fn.1)

However, even if the court addressed Plaintiff’s motion on the merits, the motion fails. Plaintiff’s argument with respect to the first cause of action (negligence) fails for the reasons stated by the court on 03/07/2022. (See ROA 138 [03/07/2022 Minute Order].) And because the negligence claim stands, the first cause of action (nuisance) does as well.

Finally, the motion for summary adjudication with respect to the second cause of action (breach of contract) must be denied as Defendant’s own separate statement concedes Plaintiff gave notice to Defendant landlord of at least one instance of urinating. (ROA 183, ¶ 31 [Defendant’s Separate Statement of Undisputed Material Facts].)

Plaintiff shall give notice of this ruling.

(fn.1) To the extent Defendant argues that Plaintiff’s deposition testimony was not available prior to the first motion, that testimony was obtained prior to the hearing on the first motion for summary adjudication. The court’s 03/07/2022 minute order does not reflect any request to continue the hearing to incorporate any newly evidence discovered from Plaintiff’s deposition or other discovery. (See ROA 138 [03/07/2022 Minute Order].)