Taylor

Plaintiff John Lee Taylor appeals from a judgment of dismissal entered after the trial court granted defendants’ motion for summary judgment. On appeal, plaintiff claims (1) lack of jurisdiction to hear the summary judgment motion 'and (2) legal error in granting the motion.

*888 I.

We address the jurisdictional question first. The trial date was set for April 7, 1980. On January 25, 1980, defendants served on plaintiff by mail a notice of motion for summary judgment specifying a hearing date of February 8, 1980. Defendants filed the notice of motion with the court on January 29, 1980. Plaintiff filed points and authorities in opposition to the motion, arguing, inter alia, that 15 days’ notice of the hearing was jurisdictionally required pursuant to Code of Civil Procedure section 1013, subdivision (a), 1 and that only 14 days’ notice had been given. Plaintiff also advised the court that his counsel could not attend the hearing on February 8 because of a previously scheduled hearing on another matter. Neither plaintiff nor his attorney appeared at the hearing.

After considering the matter on February 8, the court continued the hearing to February 22, 1980, in order to…

I dissent in part and concur in part.

My dissent goes to the jurisdictional question. In my view Code of Civil Procedure does apply to a motion for summary judgment. Accordingly, the trial court lacked jurisdiction to act.

*892 Simply stated, a party responding to such a motion manifestly must act; that is, exercise a right. Code of Civil Procedure section 437c specifically tells us what must happen—opposing party must file affidavits sufficient to present a triable issue of fact. That a party may default places this motion in no different circumstance than any other noticed motion. Legislative draftsmanship proved to be inartful; reasonable minds can differ in interpreting Code of Civil Procedure section 1013. I am persuaded that the importance of the summary judgment motion and the need for time to prepare and file papers in opposition, including counteraffidavits, argues that the 15-day notice period applies to such a motion.

While I disagree with the majority on the jurisdictional question, I agree that the summary judgment, assuming jurisdiction, was correctly entered. We must focus on the character of the prosecutor’s conduct. The record'discloses that the individual…

Plaintiff John Lee Taylor appeals from a judgment of dismissal entered after the trial court granted defendants' motion for summary judgment. On appeal, plaintiff claims (1) lack of jurisdiction to hear the summary judgment motion and (2) legal error in granting the motion.

We address the jurisdictional question first. The trial date was set for April 7, 1980. On January 25, 1980, defendants served on plaintiff by mail a notice of motion for summary judgment specifying a hearing date of February 8, 1980. Defendants filed the notice of motion with the court on January 29, 1980. Plaintiff filed points and authorities in opposition to the motion, arguing, inter alia, that 15 days' notice of the hearing was jurisdictionally required pursuant to Code of Civil Procedure section 1013, subdivision (a), [1] and that only 14 days' notice had been given. Plaintiff also advised the court that his counsel could not attend the hearing on February 8 because of a previously scheduled hearing on another matter. Neither plaintiff nor his attorney appeared at the hearing.

After considering the matter on February 8, the court continued the hearing to February 22, 1980, in…