Beroiz v. Wahl (2000)

DENNY J. BEROIZ et al., Plaintiffs and Appellants, v. TONY WAHL et al., Defendants and Respondents.

[Modification of Opinion (84 Cal. App. 4th 485 ) on denial of petition for rehearing with no change in judgment.]

THE COURT.- fn. †

It is ordered that the opinion filed herein on October 30, 2000, be modified as follows:

1. On page 6, line 7 [84 Cal. App. 4th 491 , advance report, 4th par., line 7], delete the word "complaint" and replace it with the word "pleadings."

2. On page 8, line 3 of the second paragraph of footnote 4 ending with "trial date." delete the remainder of the paragraph [84 Cal. App. 4th 493 , advance report, fn. 4, lines 3-13] and insert the following sentences:

Appellants contend that this error, which they first raised at the hearing on respondents' motions for summary judgment, is jurisdictional, and requires reversal. We are not persuaded. Code of Civil Procedure section 437c, subdivision (a) provides that a summary judgment motion "shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise." (Italics added.) Because the trial court may permit summary judgment motions to be filed within the 30-day limit, and it determined that Wahl and Marian had stated good cause on this matter, we conclude that the trial court would, in all likelihood, have granted Alamo an order allowing her to file her motion if she had requested one. Accordingly, the error here, if any, is not jurisdictional. (Cf. Jones v. Dutra Construction Co., supra, 57 Cal.App.4th at pp. 876-877 [contention of procedural error waived because appellants failed to bring error to attention of trial court, which probably would have permitted correction of error].) Furthermore, assuming that the trial court erred in ruling on Alamo's motion for summary judgment in the absence of an order permitting her to file this motion, appellants have failed to show reversible error. Appellants responded fully to Alamo's motion, and [85 Cal. App. 4th 85d] they have not suggested that the trial court's error denied them any opportunity to enhance their opposition. Moreover, as we explain below, appellants failed to raise a triable issue regarding Alamo's motion, and thus nothing indicates that they might have prevailed at trial on their claims against Alamo.

Appellants' petition for rehearing is denied.

This modification does not change the judgment.

FN †. VOGEL (C.S.), CURRY, J.