1

Filed 8/23/23 Joiner v. Neher CA3 NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

----

MATT G. JOINER,

Plaintiff and Respondent,

v. TIMOTHY L. NEHER,

Defendant and Appellant. C094447 (Super. Ct. No. 16CV00411)

Code of Civil Procedure section 437c provides a motion for summary judgment must be served at least 75 days before the hearing thereon ; t his 75

- day period is increased by two court days if the motion is served by overnight mail. ( Code Civ. Proc., § 437c, subd. (a)(2) ; undesignated statutory references are to the Code of Civil Procedure

. ) When service is by mail, the motion must be “addressed to the person on whom it is to be served, at th e office address as last given by that person on any document filed in the cause.” (§ 1013, subds

. (a) & (c).) Service on the wrong address is ineffective and deprives the court of jurisdiction to rule on the motion. (See Lee v. Placer Title Co. (1994) 28 Cal.App.4 th 503, 509.)2

Here, the trial court granted Plaintiff Matt G. Joiner ’s motion for summary judgment, even though the motion was first served on the wrong address, and was then

re
- served on the right address but without complying with section 437c’s 75

- day notice requirement

. Defendant Timothy L

. Neher appeals, arguing this was error. We agree, and thus reverse. BACKGROUND Plaintiff sued d efendant over an alleged oral p artnership agreement gone bad. Plaintiff claimed he contributed over $112,000 towards the development of a piece of property in reliance on d efendant ’s false representations that d efendant would contribute two parcels of land and obtain a $500,000 loan fo r the development, and p laintiff and d efendant would be equal partners and w ould share in the costs of development and the profits from the eventual sale of the property. In mid

- 2015, p laintiff became concerned that d efendant had not contributed the land or obtained a loan to develop the property and may have misappropriated some of the money p laintiff had contributed . Plaintiff demanded that d efendant perform as promised, and d efendant thereafter ceased communication s with p laintiff and refused to disclose any of the venture’s books and records. Plaintiff filed a complaint against d efendant on April 13, 2016, asserting causes of action for fraud, negligent misrepresentation, and money had and received , and seeking th e return of his contribution and prejudgment interest

. On July 21, 2020, p laintiff filed a motion for summary judgment

. A proof of service attached to the motion papers states they were served that same date by overnight mail addressed to d efendant as fo llows : 702 Mangrove Ave., #248, Chico, CA 95926 (the Mangrove Avenue address) . The hearing date was October 7, 2020

— which is 78 days after the motion was served, and thus within section 437c’s notice period (i.e., 75 days plus two court days)

. On Octob er 6, 2020 , the da y before the hearing, d efendant filed a late opposition , claiming he had not received the motion papers because they were mailed to the wrong3

address. Defendant stated he had filed a notice of change of address with the court and served it on p laintiff on August 21, 2019, identifying his new address as follows: 288 Lower Gulch Roa d , Oroville, CA 95965 (the Lower Gulch Road address)

. Attached to the opposition wa s a notice of change of address form and proof of service stamped “fi led” by the Butte County Superior Court on August 21, 2019; the proof of service
state d the notice was mailed to “Griffith Horn & Sheehan LLP” ( p laintiff’s attorney of record)

. Defendant stated he had not used the Mangrove Avenue address for over three
ye ars, and he had only recently learned of the motion for summary judgment from a third party. He also stated he was currently hospitalized and would not be able to attend the hearing. He asked the court to deny the motion because it was not properly serve d . He did not address the merits. A hearing on the motion was held on October 7, 2020. Defendant did not appear, and the court stated it could not hear argument without him present. The court continued th e hearing to November 4, 2020

. On October 12 , 2020, p laintiff re

- served the original motion papers on d efendant at the Lower Gulch Road address (i.e., at d efendant’s new address) , and also served d efendant with notice of the continued hearing date (i.e., November 4, 2020). Service was by overnight mail

. Proofs of service were filed with the court and are part of the record. Although not stated on the proofs of service, it appears undisputed the documents

were served by FedEx , tracking No. 815369139991. 1
On November 3, 2020 , the day before the hearing , p laintiff filed a late reply disput ing d efendant’s claim that he had filed and served a notice of change of address on August 21, 2019 . Plaintiff noted the court’s records were not updated at that time to

1 Plaintiff’s counsel submitted a declaration stating he served the motion papers on d efendant by FedEx overnight mail and it was assigned tracking No. 815369139991, and both parties submitted evidence to the trial court about this particular FedEx package

.4

reflect the new address ; the court continued to use the Mangrove Avenue address as late

as June 2020 ; p laintiff’s counsel had confirmed with the court i n July 2020 that d efendant’s address of record was the Mangrove Avenue address ; and the court’s docke t reflected the filed version of the notice w as a “ ‘ Copy , Unable to Locate Original Document

. ’ ” Plaintiff also noted the proof of service stated the notice was mailed to Griffith Horn & Sheehan, LLP, but that law firm did not come into existence until Ja nuary 1, 2020, which was over four months after the notice was allegedly served (prior to that date, the law firm was called Griffith & Horn). Plaintiff also stated he had reviewed the entire case file and was unable to locate the notice. Plaintiff thus asked the court to strike the notice of change of address ; to find the motion for summary judgment was properly and timely served ; and to rule on the merits of the motion. Alternatively,
p laintiff asked the court to continue the hearing on the motion to J anuary 6, 2021 , which would be 86 days from the date he had re
- served the motion papers on d efendant at the Lower Gulch Road address , and thus within the time provided by section 437c

. That same day, the court posted the following tentative ruling : “ ‘ Defendant’s Notice of Change of Address attached to his opposition to [the] motion for summary judgment shows a filed

- stamp ed date of August 21, 2019, with proof of service on the Plaintiff. Unfortunately, this document was not properly filed electr onically by the clerk. Plaintiff’s motion for summary judgment is denied without prejudice for failure to provide proper notice to the Defendant pursuant to Code of Civil Procedure section 437c, subdivision (a)(2). ’ ” The record does not show whether the court had received
p laintiff’s late reply by the time it posted the tentative ruling. Plaintiff’ s counsel requested oral argument and appeared at the November 4, 2020, hearing . Defendant was not present , and p laintiff’s counsel stated h e had notified d efendant of his intent to appear and contest the tentative ruling (as discussed below, d efendant disputes this)

. Fo llowing the hearing, t he court issued a minute order stating it had “reconsider[ed]” the tentative ruling , and it continued the hearing on the motion for5

summary judgment to January 6, 2021. That same day, p laintiff served d efendant by regular mail with notice of the continued hearing. On January 4, 2021, d efendant filed a declaration stating he had checked the court’s tentati ve ruling on November 3, 2020, had received no notification from
p laintiff’s counsel that he was requesting oral argument, and had thus assumed the tentative ruling had been adopted and the motion denied for failure to provide proper notice

. 2 He stated he did not receive notice the hearing on the motion had been continued until December 30, 2020 , which did not give him enough time to prepare a substantive
response . He also stated he had been under quarantine due to COVID

- 19 and an upcoming surger y , and he did not have phone or I nternet service where he lived. He asked that the motion be continued to March 2021 so that he would have time to file a substantive opposition. The next day, d efendant filed another declaration providing additional inform ation about his failure to receive notice that p laintiff had requested oral argument on the tentative ruling

. In particular, h e attached phone records that purported to show all his incom ing and outgoing calls on November 3, 2020, w hich showed no incoming calls from p laintiff’s counsel. He asked the court to either d ismiss the motion b ased on lack of service, or continue the hearing

. On January 5, 2021, t he court posted a tentative ruling that stated: “ ‘ The Court will hear from the litigants as to servi ce of the Notice of the Motion. In the event the Court finds that service is proper, the Court intends to rule as follows: .

. . . Plaintiff’s Motion for Summary Adjudication on the first cause of action (fraud) is granted [See

2 The Butte County Superior Court follows the tentative ruling procedure described in r ule 3.1308(a)(1) of the California Rules of Court, which provides the tentative ruling will become the ruling of the court unless a party has notified the court and all other parties by 4:00 p.m. on the day before the hearing of its intent to appear. (See Super. Ct. Butte County , Local Rule s, rule 2.9.)6

UMF Nos. 2

- 8, 12

- 16, and 1 9

- 21]. However, the Court denies Plaintiff’s request for punitive damages .

. . . Plaintiff’s Motion for Summary Adjudication on the second cause of action (negligent misrepresentation) is granted [See UMF Nos. 2

- 8, 12

- 16, 19

- 21, and 23

- 24]. Plaintiff’s Motion for Summary Adjudication on the fourth cause of action (money had and received/money lent) is granted [See U M F Nos. 2

- 8, 12

- 16, 19

- 21, 23

- 24, and 26

- 28]. Therefore, Judgment shall be entered for Plaintiff and against Defendant on the fi rst, second and fourth causes of action, and Plaintiff shall be awarded damages in the amount of $123,371.98, plus prejudgment interest on the damages, plus costs in an amount to be determined. ’ ” Plaintiff’ s counsel and d efendant were both presen t at the January 6, 2021, hearing

. Defendant stated he had filed for bankruptcy the day before , which would have stayed the case and thus the motion for summary judgment

. ( See 11 U.S.C. § 362(a)(1) .) The court stated d efendant needed to file verification that he had filed for bankruptcy, and it continued the matter to January 20, 2021 , to allow him to do so

. If he failed to do so, t he court stated it intended to adopt the tentative ruling. Defendant did not file v erification he had filed for bankruptcy. Instead , on January 19, 2021, he filed a substantive opposition to the motion for summary judgment. In addition to addressing the merits of the motion, d efendant stated he was never served with the motion , he “g ot a copy from the court on January 4, 2021 , ” and h e was filing the opposition as quickly as he could. At the January 20, 2021, hearing, t he court stated it would not consider d efendant’s opposition because it was untimely , and at the conclusion of the hearing, it took the matter under submission

. On February 8, 2021, the court issued a written o rder granting the motion for summary judgment as stated in the January 5 tentative ruling , and awarding p laintiff $123,371.98 in d amages plus prejudgment interest. Judgment was entered on7

February 19, 2021 , and p laintiff served d efendant with notice of entry of judgment on February 23, 2021. Thereafter, d efendant filed two separate but similar motions to vacate the judgment on the g round that it was void because the motion for summary judgment was never properly served. The trial court denied both motions and d efendant timely appeal ed only the judgment and does not appeal the orders denying the motions to vacate

. DISCUSSION Defend ant argues it was error to grant the motion for summary judgment because the motion was not properly served and the hearing was not properly noticed. We agree. The First Attempt at Service

— July 21, 2020 The motion was first served on July 21, 2020, and was addressed to the Mangrove Avenue address. The first service was ineffective, because d efendant had filed a notice of change of address on August 21, 2019, identifying the Lower Gulch Road address as his new address . This notice of chang e of address is part of the record on appeal, and it clearly shows a file stamp dated August 21, 2019. The motion was thus not mailed to the “address as last given by [ d efendant] on any document filed in the cause,” as required by section 1013. “ Successf

ul service by mail requires strict compliance with all statutory requirements, including those set forth in section 1013; the failure to comply deprives a court of jurisdiction to act. ” ( Lee v. Placer Title Co

. , supra , 28 Cal.App.4 th at p. 509.) Because p laintiff failed to comply with all statutory requirements regarding service by mail, service was ineffective, and the court had no jurisdiction to rule on the motion as originally served. Plaintiff disagrees, and a rgues the first service was effective . He contends d efendant did not actually file a notice of change of address with the court on August 21, 2019, and th e d ocument that is part of the record on appeal was forged. He also suggests the trial court was not fooled by d efendant’s forg ery, and that it did not actually find or8

accept that d efendant filed a notice of change of address on August 21, 201 9

. The record does not support p laintiff’s argument. In its November 3, 2020 , tentative ruling denying the motion for summary judgment w ithout prejudice, the trial court stated “ ‘ Defendant’s Notice of Change of Address .

. . shows a filed

- stamped date of August 21, 2019 .

. . . Unfortunately, this document was not properly filed electronically by the clerk. ’ ” Plaintiff notes the trial court did not adopt the tentative ruling, and instead issued a minute order on November 4, 2020, continuing the hearing on the motion to January 6, 2021 . Plaintiff also notes the minute order did not contain the tentative ruling’s language about the notic e of change of address not being properly filed by the clerk, and instead states, “The clerk is directed to update [ d efendant’s] address on file to 288 Lower Gulch Road, Oroville, CA 95965 as set forth by [ d efendant] in his Opposition filed October 6, 2020 .” According to p lainti ff, “This change shows that while it may have opted not to broach the issue of [ d efendant’s] fraud on the court, the Trial Court did not accept that the Notice of Change of Address was ever served and filed.” Plaintiff reads far too much into the minute order

. If the trial court had found the notice of change of address was not actually filed on August 21, 201 9 , and the document was forg ed , we would have expected a statement to that effect , but there is none, and we

w ill not read such a statement into the trial court’s direction to the clerk to update d efendant’s address. Moreover, the record provided to us reflects that in its ruling denying d efendant’s second motion to vacate the judgment, which was issued o ver six months later in June 2021, the trial court discussed the procedural history in some detail and reiterated, “There was an issue with a change of address form that was not properly filed by the clerk .” ( I talics added .) Again, if the trial court had found the notice of change of address was forged (as p laintiff suggests), we would expect a statement to that effect rather than a reiteration that the change of address form was not properly filed by the clerk.9

That means the first attempt to serve the motion for summary judgment was ineffective , and, as noted above, ineffective service “deprives a court of jurisdiction to
act. ” ( Lee v. Placer Title Co

. , supra , 28 Cal.App.4 th at p. 509.) The Second Service

— October 12, 2020 That leaves the second attempt at service

— on October 12, 2020, by FedEx, to the Lower Gulch Road address. Plaintiff never discusses the second attempt at service , and d efendant argues i t was ineffective because , as he attempted to demonstrate in his two motions to vacate the ju dgment, h e never received the package . We need not address d efendant’s claims about receipt, however, because we agree with d efendant that regardless of receipt , the second attempt at service also failed to provide adequate notice of the hearing , as required by section 437c. Plaintiff re

- served the original motion papers on October 12, 2020 , by overnight mail, to the Lower Gulch Road address

. The original motion papers , however, indicated an Oct ober 7, 2020, hearing date

— i.e., a hearing date that had already passed

. Along with the original motion papers, p laintiff also served d efendant with a notice that the trial court had continued the hearing to November 4, 2020 (also by overnight mail, to th e Lower Gulch Road address) . November 4, however, was only 23 days after the motion

was re
- served

. Thus, by re

- serving the original motion papers along with notice the hearing had been continued to November 4, p laintiff failed to comply with section 437c ’s requirement that “[n]otice of the motion and supporting papers shall be served .

. . at least 75 days before the time appointed for hearing.” (§ 437c, subd. (a)(2).) “The purpose of the 75

- day service requirement is to allow the parties time to prepare their opposition .

. . and to prepare for the hearing.” ( Lackner v. North (2006) 135 Cal.App.4 th 1188, 1208.) “The importance of providing the minimum statutory notice of a summary judgment hearing cannot be overemphasized.” ( Robinson v. Woods ( 2008) 168 Cal.App.4 th 1258, 1262.) “Because it is potentially case dispositive and usually requires considerable time and effort to prepare, a summary judgment motion is10

perhaps the most important pretrial motion in a civil case. Therefore, the Legislatu re was entitled to conclude that parties should be afforded a minimum notice period for the hearing of summary judgment motions so that they have sufficient time to assembly the relevant evidence and prepare an adequate opposition.” ( I bi d .) Trial courts do not have authority to shorten the minimum notice period without the parties’ con s ent. ( I bi d .; accord Urshan v. Musicians’ Credit Union (2004) 120 Cal.App.4 th 758, 760; McMahon v. Superior Court (2003) 106 Cal.App.4 th 112, 117

- 118.) An opposition to a motion for summary judgment must be filed no later than 14 days before the hearing . (§ 437c, subd. (b)(2).) That means sec tion 437c gives the opposing party at least 61 days to prepare and file an opposition. Here, however, the combined effect of p laint iff re

- serving the motion on October 12 along with notice the hearing had been continued to November 4 was to give d efendant only nine days to prepare and file a n opposition (i.e., because the opposition would have been due by October 21), which fails to comply with section 437c

. Moreover, although the November 4 hearing was thereafter continued by the trial
court (first to January 6 and then to January 20, 2021 ) , the trial court could not cure the inadequate notice given on October 12 by continuing the hearing for some number of days less than 75 . In stead, the full 75

- day notice period had to begin anew. Robinson v. Woods , supra , 168 Cal.App.4 th 1258, illustrates this poi nt . There, the defendant served a motion for summary judgment by mail on January 26, 2007, and noticed the hearing for April 12 , 2007

— 76 days after the motion was mailed. Because service by mail extends the 75

- day notice period by five days, the motion was untimely because it was not served at least 80 days before the hearing, and the plaintiff opposed the motion on that ground. At the April 12 hearing on the motion, the trial court continued the hearing for four days, to the 80 th day after the mailing of the motion, and thereafter granted the motion. ( Id. at
pp. 1260

- 1267.) The appellate court reversed, concluding “the trial court ab used its discretion by continuing the noticed hearing for only four days instead of the 75

- day statutorily required period.” ( Id. at p. 1260.) It held “the 76

- day notice given by11

defendant s on the mailed motion was invalid. Thus, at the noticed hearing on April 12, 2007, the trial court had no authority to continue the hearing a mere four days. At that point, the notice period had to begin anew, and 75 days is mandatory where notice is given personally .” ( Id . at p p
. 1267

- 1268 , italics added .) So, too , in this case. The notice given on October 12 was invalid because it identified a November 4 hearing date, which was only 23 days after the motion was served. As in Robinson , the court could not then cure the notice defect at the November 4 hearing by continuing the hearing to a date that was 7 5 days plus two court days past October 12 , and the full 75

- day notice period had to instead begin anew. Arguably, at the November 4 hearing the trial court could have continued the hearing for 75 da ys, to January 18, 2021, which would have provided d efendant with sufficient notice ( provided the motion papers and notice of the hearing were personally served on that date )

. But that is not what happened. Instead, the trial court continued the hearing to January 6, 2021 , which is less than the full 75

- day notice period (it is 6 3 days after November 4, 2020)

. At the January 6 hearing, the trial court continued the hearing once again, this time to January 20, 2021 , but by th at time, it was too late to re troactively cure the notice defect

. Thus the court erred by grant ing the motion. As for p laintiff’s argument that any error in granting the motion was harmless, we disagree. “It has been said that the erroneous granting of a summary judgment motion ‘lies outside the curative provisions’ of the harmless error provision of the California Constitution because such an error denies a party of its right to a jury trial.” ( Hawkins v. Wilton (2006) 144 Cal.App.4 th 936, 947.) Thus, o nly “purely technical errors in granting summary judgment can be found harmless.” ( I bi d .) Given the “ importance of providing the minimum statutory notice of a summary judgment hearing ,” ( Robinson v. Woods , supra , 1 68 Cal.App.4 th at p. 1262), we find that ruling on a motion that failed to provide such notice is not a purely technical error , and is thus not harmless

.12 DISPOSITION The judgment is reversed. Defendant is entitled to recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

/s/ EARL, P. J.

We concur:

/s/ DUARTE, J.

/s/ HORST, J. *

* Judge of the Placer County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution

.