Gunther v. The Superior Court of San Diego County/NN Jaeschke, Inc. et al.

DispositionDescription: Petition denied or dismissed after order to show cause issued.; Disposition Type: Final The petition for writ of prohibition, informal responses, and petitioner's declaration have been read and considered by Presiding Justice McConnell and Associate Justices O'Rourke and Dato. On June 16, 2023, this court issued an alternative writ directing the respondent court to either vacate that portion of its minute order entered on May 12, 2023, setting a shortened briefing schedule for the pending motions for summary judgment/adjudication and, absent the consent of petitioner to hear the motions on shortened notice, enter a new order taking the motions for summary judgment/adjudication off calendar or, in the alternative, show cause why such relief should not be granted. Petitioner's counsel has now submitted a declaration demonstrating that after this court issued its alternative writ, the respondent court took all motions off calendar and maintained the July 7 trial date. The alternative writ, having served its purpose, is discharged. The petition is dismissed as moot in regard to the motions for summary judgment/adjudication and denied in all other respects.

DocketDescription: Case complete.

DocketDescription: Petition denied or dismissed after order to show cause issued.; Notes: The petition for writ of prohibition, informal responses, and petitioner's declaration have been read and considered by Presiding Justice McConnell and Associate Justices O'Rourke and Dato. On June 16, 2023, this court issued an alternative writ directing the respondent court to either vacate that portion of its minute order entered on May 12, 2023, setting a shortened briefing schedule for the pending motions for summary judgment/adjudication and, absent the consent of petitioner to hear the motions on shortened notice, enter a new order taking the motions for summary judgment/adjudication off calendar or, in the alternative, show cause why such relief should not be granted. Petitioner's counsel has now submitted a declaration demonstrating that after this court issued its alternative writ, the respondent court took all motions off calendar and maintained the July 7 trial date. The alternative writ, having served its purpose, is discharged. The petition is dismissed as moot in regard to the motions for summary judgment/adjudication and denied in all other respects.

DocketDescription: Filed declaration.

DocketDescription: Order filed.; Notes: The petition for writ of mandate and informal responses have been read and considered by Presiding Justice McConnell and Associate Justices O'Rourke and Dato. In her petition for writ of mandate, petitioner Linda Gunther contends the respondent court erred by (1) failing to commence trial within 120 days of granting her motion for preference pursuant to Code of Civil Procedure section 36 and (2) failing to enforce the notice requirements of section 437c of the Code of Civil Procedure. Gunther asks this court to order the respondent court to comply with section 36 by setting trial within 15 days of the finality of any decision by this court. However, based on the time periods set forth below, the current trial date of July 7 would be within that 15-day period such that granting effective relief while respecting the due process rights of all parties is not practical. In that respect, if trial proceeds as currently scheduled, petitioner fails to establish a basis for extraordinary writ relief. If the respondent court grants any further continuances due to its impacted calendar of matters not entitled to preference and absent a showing of extraordinary good cause, petitioner may renew her request for writ relief. However, on petitioner's second claim, case law establishes that absent petitioner's consent, the trial court did not have discretion to shorten the 75-day mandatory notice period required by section 437c, subdivision (a)(2). (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 115-117; Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 764.) Accordingly, for good cause shown, on or before June 23, 2023, the respondent court is directed to vacate that portion of its minute order entered on May 12, 2023, setting a shortened briefing schedule for the pending motions for summary judgment/adjudication and, absent the consent of petitioner to hear the motions on shortened notice, enter a new order taking the motions for summary judgment/adjudication off calendar. In the event the respondent court proceeds in this manner, it must afford the parties notice and an opportunity to be heard before reversing its order. (Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1250.) Petitioner is directed to advise this court of the superior court's response to this alternative writ on or before June 27, 2023. In the alternative, should respondent court fail to grant the relief specified above, this court will consider issuing a peremptory writ in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-180.)

DocketDescription: Informal response filed by:; Notes: Real Party in Interest: NN Jaeschke, Inc. Attorney: Wallace Harrison Sweet Real Party in Interest: The Park at 10th Avenue Owners' Association Attorney: Wallace Harrison Sweet

DocketDescription: Informal response filed by:; Notes: Real Party in Interest: Reliance Building Services, Inc. Attorney: Suzanne Lovelace Smigliani

DocketBrief: Informal response filed by:; Party Attorney: Real Party in Interest: NN Jaeschke, Inc.Attorney: Wallace Harrison Sweet Real Party in Interest: The Park at 10th Avenue Owners' AssociationAttorney: Wallace Harrison Sweet

DocketBrief: Informal response filed by:; Party Attorney: Real Party in Interest: Reliance Building Services, Inc.Attorney: Suzanne Lovelace Smigliani

DocketDescription: Letter sent to counsel re:; Notes: Real parties in interest are requested to file an informal response to the petition on or before June 13, 2013, no later than 3:00 p.m.

DocketDescription: Exhibits filed in support of:; Notes: Petition

DocketDescription: Filed petition for writ of:; Notes: Mandate