Mann v. Cracchiolo

BIRD, C. J., Concurring

I write separately because I believe it is important to clarify the effect of a stay of “all proceedings” for future litigants. (See maj. opn., ante, at pp. 27-28.) In cases where a stay is in effect when a motion is noticed, the stay should “stop the clock” from running either toward a hearing date or toward a date on which opposition papers are due. Any other rule permits the clock to run toward conditional, uncertain dates, leaving the nonmoving party unclear as to when opposition must be filed and when an appearance must be made. It is unfair to allow the moving party to profit from such uncertainty.

Here, hearing on a motion for summary judgment was noticed for October 15th. Both parties agree that the stay order would have prevented the trial court from hearing the motion on that date unless it was lifted. The law and motion judge clearly informed all parties that while moving papers could be filed in his department, no hearing could be held unless the stay order were dissolved.

Under the terms of the local rule, 1 the filing of defendants’ motions made plaintiffs’ opposition due three to five days before the noticed hearing date. *43 Yet the stay rendered both the hearing date and, a fortiori, the deadline for filing an opposition entirely speculative at the time notice was given. The hearing could not go forward on the 15th unless an intervening event—the dissolution of the stay—occurred.

Plaintiffs argue that a stay of “all proceedings” not only bars a court from hearing a motion, but also the parties from filing any notice of motion. Alternatively, they argue that if a filing were allowed, a stay order would toll any period which would otherwise begin to run when the motion was filed. If a stay is in effect, a party may not file a motion and thereby create a deadline for an opponent which carries adverse consequences.

Judicial definitions of the term “proceeding” might well have led plaintiffs to believe that either interpretation of the stay order was correct. “The term ‘proceeding’ may refer not only to a complete remedy (see [Code Civ. Proc.,] § 23) but also to a mere procedural step that is part of a larger action or special proceeding. [Citations.]” (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 367 [ 110 Cal.Rptr. 353 , 515 P.2d 297 ].) Arguably, the term includes steps taken by the parties as well as by a court. In Lukes v. Logan (1884) 66 Cal. 33 [ 4 P. 883 ], the term was held to encompass the settlement of a bill of exceptions between two parties in preparation for a motion for a new trial. Citing Lukes with approval in Stonesifer v. Kilbum (1892) 94 Cal. 33, 43 [ 29 P. 332 ], this court observed that “ ‘[t]he word [proceeding] is generally applicable to any step taken by a suitor to obtain the interposition or action of a court.’” (Italics added, citation omitted.)

In Burns v. Superior Court (1903) 140 Cal. 1 [ 73 P. 597 ], the term “proceedings” was held to include the issuance of a subpoena by a notary at the request of one party seeking to depose another. (Id., at p. 9.) Though a trial court does not act directly in deposition proceedings, Bums viewed a deposition as “a means furnished by law for the use of the court for the purpose of enabling it to obtain the evidence . . . .” (Ibid.) Thus, “[t]he taking of a deposition is as clearly one of the ‘proceedings’ of the court as was the taking of testimony before the master or examiner in a suit in equity.” (Ibid.)

As Bums noted, “[t]he word ‘proceeding’ necessarily has different meanings, according to the context and the subject to which it relates. ... In section 473 of the Code of Civil Procedure, and in similar statutory provisions of other states, it has a broader signification, and includes any step taken in a case, whether by the court or by one of the parties thereto. [Citations.] ‘/« its more general sense, in law, it means all the steps or *44 measures adopted in the prosecution or defense of an action. ’ [Citation.]” ( Burns, supra, 140 Cal. at pp. 5-6, italics added.)

In light of these holdings, a nonmoving party could reasonably have concluded that a stay of “all proceedings” prohibited his opponent from noticing a hearing date or creating a deadline for the filing of opposition. Such notice is a prerequisite to having the motion heard. (Code Civ. Proc., § 1010.) Like the subpoena in Bums, the notice is the means by which the parties are brought before the court. Like the settlement of a bill of exceptions, the notice is a “ ‘step taken by a suitor to obtain the interposition or action of a court.’ ” (Stonesifer v. Kilbum, supra, 94 Cal. at p. 43 .) Logically, it is a “proceeding” which is stayed by a stay of “all proceedings.”

The case law is not the only source which could lead a nonmoving party to believe that a hearing or opposition due date is inoperative if a stay is in effect. Conditional dates are by their very nature inadequate notice. Here, the October 15th hearing date was a conditional one. The hearing could not proceed as noticed unless the stay were dissolved. A fortiori, the deadline for plaintiffs to file their opposition was conditional and uncertain when the notice was given.

This ambiguity as to the deadline for filing an opposition should not be construed against the nonmoving party. This is particularly true with summary judgment, which is so final a remedy. The moving party should not be able to take advantage of his opponent’s uncertainty as to the date on which his opposition papers must be filed. Furthermore, given the short time available to prepare an opposition even when the noticed deadline is an operative one, any uncertainty about the deadline could be critically unfair to the responding party.

“It is academic that the burden is on the party moving for summary judgment; because of the drastic nature of the remedy sought, he is held to strict compliance with the procedural requisites.” (Department of General Services v. Superior Court (1978) 85 Cal.App.3d 273, 284 [ 147 Cal.Rptr. 422 ].) One “procedural requisite” for any motion is that the notice of motion specify the date on which the motion will be heard. (Code Civ. Proc., § 1010.) A notice which specifies only a conditional hearing date arid, therefore, fixes a conditional date for filing opposition papers, does not constitute “strict compliance with the procedural requisites.”

To prevent such problems in the future, this court should make it clear that a stay of “all proceedings” tolls any deadlines which come into existence while a stay is in effect. A stay does not necessarily bar a party from filing a motion, but a moving party should be required to renotice any *45 hearing date which was conditional at the time of the original notice. Such a rule would prevent a moving party from profiting from an ambiguity created by his own action and would ensure that the rules of fair notice to an opponent are respected.

See majority opinion, ante, at page 27.