Filed 8/18/20 Aframian v. Superior Court CA4/1

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

HOUSHANG AFRAMIAN et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SAN 

DIEGO COUNTY,

Respondent;

 D077736

 (San Diego County

 Super. Ct. No. 37-2013-00078078-

 CU-BT-CTL)

OVERLAND DIRECT, INC.,

Real Party in Interest.

ORIGINAL PROCEEDING in mandate. Joel R. Wohlfeil, Judge. 

Petition granted.

Epport, Richman & Robbins, LLP, Stephen C. Huskey, and Christopher 

R. Nelson, for petitioners.

No appearance for respondent.
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Blanchard, Krasner & French and John F. Whittemore for real party in 

interest.

Houshang, Maria, and Amir Aframian petition for a writ of mandate to 

compel the superior court to calendar their timely motion for summary 

judgment for a hearing. We grant the petition.

BACKGROUND

The Aframians are defendants in one of several consolidated actions

pending in the superior court that were commenced by Overland Direct, Inc. 

(Overland), to recover real property it alleges the Aframians and others 

obtained by a fraudulent scheme. Trial was initially set for March 20, 2020, 

but had to be continued due to the COVID-19 pandemic. At a hearing on 

June 22, the superior court set trial for October 23 and took all motions off

calendar based on the motion cutoff date that had been set for the original 

trial date. 

On July 6, another defendant in the underlying actions applied ex parte 

to recalendar the motion for summary judgment that it had filed earlier and 

that the court had taken off calendar at the June 22 hearing. The court 

granted the application and reset the hearing and also advised the parties 

they could seek leave to file new motions on a showing of good cause. On July 

8, the Aframians applied ex parte for leave to file a motion for summary 

judgment and have it heard before trial. Finding the Aframians had not been 

so diligent as the other defendant who was given a hearing date, the superior 

court denied the application. The Aframians nevertheless filed the motion 

and personally served it on Overland on July 10 with a tentative hearing date 

of September 23. 
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Two weeks later the Aframians petitioned this court for a writ of 

mandate directing the superior court to vacate its order denying their 

application and to schedule a hearing on their summary judgment motion. 

We notified the parties we were considering issuing a peremptory writ in the 

first instance and obtained a response from Overland. (Palma v. U.S. 

Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.)

DISCUSSION

A party may move for summary judgment by serving the motion “at 

least 75 days before the time appointed for hearing,” and the “motion shall be 

heard no later than 30 days before the date of trial, unless the court for good 

cause orders otherwise.” (Code Civ. Proc., § 437c, subds. (a)(2), (3).) “[T]he 

30-day time limit on summary judgment hearings should be calculated based 

on the trial date in existence when the motion is noticed regardless of 

whether that date is the original trial date or not.” (Green v. Bristol Myers Co 

(1988) 206 Cal.App.3d 604, 609.)

The applicable trial date here is October 23, 2020. Unless the superior 

court for good cause orders otherwise any motion for summary judgment 

must be heard by September 23, the date tentatively calendared by the 

Aframians. With that hearing date and with personal service, the motion 

had to be served by July 10, the date they personally served their motion on 

Overland. The Aframians therefore satisfied the time requirements of Code 

of Civil Procedures section 437c, albeit with no time to spare.

“A trial court may not refuse to hear a summary judgment filed within 

the time limits of [Code of Civil Procedure] section 437c. [Citation.] Local 

rules and practices may not be applied so as to prevent the filing and hearing 

of such a motion.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 

526, 529 (Sentry); accord, First State Inc. Co. v. Superior Court (2000) 79 
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Cal.App.4th 324, 330; Wells Fargo Bank v. Superior Court (1988) 206 

Cal.App.3d 918, 923.) The superior court therefore erred by refusing to 

calendar the Aframians’ motion for a hearing.

To correct the error, a peremptory writ in the first instance is 

appropriate. There are no material facts in dispute, the applicable law is 

settled, the Aframians are clearly entitled to relief, the impending trial date 

requires prompt resolution, and no useful purpose would be served by 

plenary consideration of the issue. (Code Civ. Proc., § 1088; Lewis v. Superior 

Court (1999) 19 Cal.4th 1232, 1240-1241.)

DISPOSITION

Let a writ issue commanding respondent, immediately upon receipt of 

the writ, to vacate its July 9, 2020 order refusing to calendar petitioners’

motion for summary judgment for hearing and to enter a new order setting 

the motion for hearing on September 23, 2020, or as soon thereafter as the 

motion may be heard, but no later than the date set for trial. The parties are 

to bear their own costs of this writ proceeding. (Cal. Rules of Court, rule 

8.493(a)(1)(B).)
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BENKE, Acting P. J.

WE CONCUR:

HUFFMAN, J.

AARON, J.