I like the strategy here.
Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause).
Plaintiff waits the full period to respond (rather than moving ex parte to take the motion off calendar) and then raises purely procedural/notice objections, and does not respond on the merits. At the scheduled hearing, the trial court concedes (as it must) that the mandatory notice wasn't given, so gives plaintiffs an extra four days to respond, on the theory that the 76 days they got plus the extra 4 then gives 'em 75 plus 5. And also finds "good cause" for a shortly-before-trial hearing date. Plaintiff again objects, and doesn't file an opposition on the merits. The trial court then grants summary judgment.
Plaintiff then appeals, raising (again) only the procedural points. And wins. Rightfully so. You can't do what the trial court did. Sorry, but you can't. It's mandatory 75 (+5) notice. Defendant didn't get it. Ergo the case gets reversed.
Now, mind you, you're still going to have to eventually oppose the summary judgment motion, since on remand, defendant will simply refile it, and give you the right amount of notice this time. So my first reaction was: why spend all the time (and money) to file procedural objections, and then have to file an appeal? What's the point? Aren't you being penny-wise and pound foolish?
Maybe. Indeed, here, that may well be the case. Since I get a sense that this is a tinier case with not that much money (or attorney's fees) able to be thrown at it.
But, in a different case (and perhaps even here), I can indeed see a legitimate reason for such a move. If you respond on the merits, of course, you risk the trial court saying -- as it surely would have here -- that you had 76 of the 80 necessary days, so can't so prejudice, and hence your objections are overruled. By contrast, if you limit yourself to the timing objection, sure, you may have to appeal, and thereafter have to respond to the merits upon remand.
So what do you gain besides (1) wasting your (and the other side's) time and money, and (2) just generally being a pain? What's the point?
Strategic answer: A new judge. Since you get to bounce the existing judge after the case comes back down from the Court of Appeal.
Again, I don't have a sense that this was actually motivating the parties here. (The fact that the defendant didn't even file a brief on appeal suggests, again, that what's really motivating these particular parties are economic constraints.) Nor does the Court of Appeal discuss what really may be going on. But procedural "sandbagging" in such a manner may nonetheless both be effective as well as worth it in a given case.
As Paul McGuire of the Bay Area post-hardcore band Karate High School famously proclaims: "Sometimes when you lose, you win."
