Sadlier

Petitioner James D. Sadlier, one of several defendants in an action on promissory notes brought by real parties in interest, plaintiffs Robert B. Schoenburg and Stephen Pollack, seeks a writ of mandate compelling respondent superior court to vacate its December 17, 1985, order granting plaintiffs’ motion for summary adjudication of certain issues. Petitioner frames the questions presented as follows:

(1) May a plaintiff move for summary adjudication of issues pursuant to Code of Civil Procedure section 437c prior to 60 days from the first general appearance in the action by the defendant against whom the motion is directed, without obtaining prior leave of court to file and serve the motion before said 60-day period has elapsed?

(2) May a plaintiff obtain summary adjudication of issues pursuant to section 437c against a nondefaulting defendant prior to such defendant’s filing an answer to plaintiff’s complaint?

No substantive grounds for denial of the motion for summary adjudication are raised.

We decide that respondent court did not err in considering plaintiffs’ motion for summary adjudication although the motion was filed within 60 days of defendants’ first general…