NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

CODRINGTON, Acting P.J.

INTRODUCTION

In this matter, we have reviewed the petition and the opposition thereto, which adequately address the issues raised by the petition. We have concluded that an alternative writ would add nothing to the presentation already made and would cause undue delay in bringing the action to trial. We, therefore, issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088;1 Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)

DISCUSSION

We conclude that the trial court abused its discretion—not once, but twice—when it refused to hear petitioners' motion for summary judgment on the merits.

Petitioners had filed a motion for summary judgment on April 8, 2011. At that time, the trial court did not have a date available for hearing motions more than 75 days after filing and also more than 30 days before trial. Petitioners accordingly made an application to specially set the hearing within 30 days of trial.

The trial court granted the application and the hearing was specially set on July 7, 2011—a date that allowed 75 days' notice as required under section 437c, subdivision (a).

The trial court reset the motion for hearing for July 19, 2011, and reset the trial for August 12, 2011. At the hearing on July 19, 2011, the trial court ordered petitioners' motion for summary judgment off calendar on the ground that it was an oppressive motion. The trial court commented that it did not have the time or resources to consider the motion, noting that it was voluminous and complex. It opined that "[s]ome cases are just not appropriate for summary judgment."

A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918.) In Wells Fargo, the trial court ordered a motion for summary judgment off calendar pursuant to a local rule that hearings on extensive and complicated motions must be specially set with the law and motion department. Because of a backlog of such motions, the practical effect of the rule was to require additional notice of up to six months in order for a summary judgment motion to be heard. The court held that the rule was void and unenforceable because it was inconsistent with section 437c. (Wells Fargo, at p. 923.) Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion. (Ibid.)

We also note Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529-530, where it was held that calendaring problems did not justify the court's refusal to hear a timely motion. In Sentry, as here, the moving party had filed a timely motion for summary judgment but the court informed it that the first open date for hearing was within 30 days of trial. Section 437c requires motion for summary judgment to be heard no later than 30 days before the date of trial. The trial court refused the moving party's motion to shorten time, for reconsideration, and to continue the trial date. The appellate court directed the trial court to hear the motion and to continue the trial date until such time as the motion has been determined, holding that it could not refuse to hear a timely motion for summary judgment. (Sentra, at p. 529.)

In this matter, the trial court relied on Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 for its inherent power to decline to hear an oppressive and burdensome motion. The Nazir court did recognize that a court's inherent power to control proceedings extended to dealing with summary judgment motions that included lengthy separate statements of undisputed facts and evidentiary objections. However, it did not suggest that the power included refusing to hear motions that a trial court considered burdensome and oppressive. And, indeed, in that case, the trial court had made a ruling on the merits. Rather, Nazir indicated that a trial court could strike undisputed facts that fail to comply with statutory requirements or could reprimand counsel and order the motion refiled.

The Supreme Court indicated in Reid v. Google, Inc. (2010) 50 Cal.4th 512, that litigants might face informal reprimands or formal sanctions for engaging in abusive practices for filing abusive evidentiary objections in summary judgment proceedings. There was no suggestion that refusing to rule on a motion was a viable option for the trial court. In fact, it disapproved of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, 1424, to the extent it permits the trial court to avoid ruling on specific evidentiary objections.

Although we are not unsympathetic to the trial court's plight in dealing with lengthy and complex motions, we note that it had options to deal with the situation; however, refusing to hear the motion was not one of those options. For instance, it could have ordered the parties to meet and confer and narrow the issues to be determined by the court. Ordering the matter off calendar constituted an abuse of discretion.

Petitioners later asked the trial court to set the motion back on calendar, indicating that they would be withdrawing the majority of its claims and issues. On August 12, 2011, the trial court agreed to set the matter back on calendar and set a briefing schedule. It indicated, however, that it might find that this restarted the 75-day notice requirement. At the hearing on September 23, 2011, the trial court denied the motion. The trial court refused to hear the motion on the merits based on the ground that petitioners had not complied with the 75-day notice requirement. In so ruling, the trial court erred.

While the trial court cannot shorten notice absent consent of the parties (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116), the petitioners in this case had given 75 days' notice of the original motion. The trial court and real party in interest relied on Robinson v. Woods (2008) 168 Cal.App.4th 1258, but that reliance is misplaced. In Robinson, the trial court continued the initial hearing on the motion in order to meet the notice requirement. (Id. at pp. 1268-1269.) Here, the initial motion did have 75 days' notice and the trial court took it off calendar for improper reasons as discussed above. Real party in interest contends that the second motion is separate and distinct from the first so that a new 75-day notice was required. We disagree. Based on the procedural history of the case, the September 23, 2011, hearing date was simply a recalendaring of the motion. Although there was further briefing, the matter was a direct outgrowth of the initial motion. Notice issues are reviewed for an abuse of discretion. (Id. at p. 1261.) The trial court's ruling on September 23, 2011, constitutes an abuse of discretion.

DISPOSITION

Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside and vacate its rulings and to conduct further proceedings.

Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.

The previously ordered stay is lifted. Petitioners to recover their costs, if any.

McKINSTER, J. and MILLER, J., concurs.