5
was December 3.4 Nonetheless, “[n]o judgment shall be set aside, or new trial granted, in any
cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire
cause, including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.)
“[T]he ‘general rule is that one who has been notified to attend a certain proceeding and
does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such
instance served its purpose.’ [Citation.]” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697
(Carlton).) If counsel believes he or she has been prejudiced by inadequate notice, counsel
“should file the best opposition possible under the circumstances[,] . . . includ[ing] counsel’s
position on the defective-service/inadequate-notice issue, as well as the merits. . . . Counsel
should then appear at the hearing, object to the hearing taking place because the service was
defective and/or inadequate notice of the hearing was received; again explain to the court the
prejudice that has been suffered by reason of the defective service and/or inadequate notice; and
request a continuance of the hearing so that a proper response to the motion may be filed. . . .
[I]f the court denies a continuance, counsel should be prepared to argue the motion on the
merits. If, however, the steps described in this paragraph are taken, the record will be well
preserved for any future writ proceeding or appeal.” (Id. at p. 698.)
In Carlton, defendant Quint provided inadequate notice of the hearing on his summary
judgment motion and Carlton, despite raising the issue in his opposition and at the hearing,
“never claimed he did not have adequate time to prepare a response, appeared at the hearing,
argued the merits, never requested a continuance, and never claimed he was prejudiced by the
defective service or inadequate notice of hearing.” (Carlton, supra, 77 Cal.App.4th at p. 698.)
Carlton held the plaintiff “waived any alleged defective service or inadequate notice.” (Ibid.)
We take the same approach with one variation.