The 75-Day Notice Requirement Is Mandatory for Motions for Summary Judgment Or Motions for Summary Adjudication

Code of Civil Procedure Section 437c(a) requires a minimum of 75 calendar days notice and does not set forth any exceptions. Moreover, Section 437c(b)(6) provides: “Except for subdivision (c) of Section 1005 relating to the method of service of opposition and reply papers, Sections 1005 and 1013, extending the time within which a right may be exercised or an act may be done, do not apply to this section.” ”[T]he statutory language regarding minimum notice is mandatory, not directive.” Urshan v. Musicians’ Credit Union, 120 Cal.App.4th 758, 764 (2004). Neither an order of court, nor a local court rule, may impose procedural requirements, including time deadlines, which conflict with the procedures set out in Section 437c. First State Ins. Co. v. Superior Court, 79 Cal.App.4th 324, 330-331 (2000), and authorities cited therein; see also Boyle v. Certain Teed Corp.,137 Cal.App.4th 645 (2006).

Last year, the Court of Appeal re-emphasized this clear-cut requirement that the 75 day notice period is a minimum notice period and is indeed mandatory:

Code of Civil Procedure section 437c, subdivision (a) provides that a party moving for summary judgment or summary adjudication “shall” serve notice of the motion and supporting papers “on all other parties to the action at least 75 days before the time appointed for hearing.” (Ibid., italics added.) This language is mandatory and the court has no discretion to shorten the time.

Cuff v. Grossmont Union High School District, 221 Cal.App.4th 582, 595-596 (Nov. 18, 2013).

The Cuff case also confirms that a trial court has no authority to shorten the time for the 75-day notice of a summary judgment hearing unless all the parties agree. McMahon v. Superior Court, 106 Cal.App.4th 112 (2003); accord, UAS Management, Inc. v. Mater Misericordiae Hospital, 169 Cal.App.4th 357 (2008); Urshan v. Musicians’ Credit Union, 120 Cal.App.4th 758, 764 (2004). Nor can a trial court continue the hearing on the motion in order to achieve the required 75-day notice. Robinson v. Woods, 168 Cal.App.4th 1258 (2008).

So, for example, if a party serves a motion for summary judgment with only 72 days (rather than 75 days) notice, a court is not allowed to grant them relief from that mistake.  Rather, the party would have to re-file and re-serve the motion for summary judgment, allowing for 75 days service.  Of course, under Section 437c, the motion must still be heard at least 30 days before trial, unless the moving party can establish good cause for why the hearing date would be within 30 days of trial.

If you are a party that needs to oppose a motion for summary judgment or motion for summary adjudication, and the other party served the motion less than 75 days ahead of the hearing date, you should make an ex parte application citing the above legal authorities.  That ex parte application should request that the motion be denied and/or taken off calendar because it was improperly noticed.  This will avoid you having to do a full-blown substantive opposition to the motion.  Moreover, some authorities hold that if you appear at a hearing you waive any defects of notice.  So, it is better to be proactive and do an initial and early  opposition of the motion on notice grounds rather than waiting until the 14 days before the hearing date to file an opposition claiming you were not given the mandatory 75 days notice.