APPEAL from a judgment and cross-appeal from an order of the Superior Court of Los Angeles County, Charles C. Lee, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC356558).
The opinion of the court was delivered by: Mosk, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
When parties moving for summary judgment do not make a prima facie showing justifying a summary judgment, the trial court may not grant a summary judgment under Code of Civil Procedure section 437c, subdivision (b)(3)*fn2 for failure of the opposing party to file the required separate statement with supporting evidence. In this case, however, we hold that the moving parties did make such a prima facie showing. We also hold that the trial court did not have a mandatory duty under section 128.7, subdivision (c) to impose upon plaintiff monetary sanctions, even if there was a violation of section 128.7, subdivision (b) for filing an action that was frivolous and lacking in evidentiary support. We therefore affirm the summary judgment and order denying sanctions.
Plaintiff and appellant Vartan Kojababian (plaintiff) sued, inter alia, defendants and respondents Genuine Home Loans, Inc. (Genuine), Nectar Kalajian (Kalijian), and Aida Markarian (Markarian) (defendants) for fraudulent transfer and negligence. The facts are taken from the evidence submitted in support of the defendants‟ motion for summary judgment, which evidence plaintiff did not dispute.
On July 30, 2003, plaintiff obtained a temporary protective order preventing Mher Momdjian (Momdjian) from further encumbering real property owned by Momdjian and his wife Joyce. Plaintiff obtained a hearing date in August on a petition to attach such real property. Meanwhile, during July, 2003, Kalajian, the president of Genuine, met with Mher and Joyce Momdjian to discuss the Momdjians‟ desire to obtain a loan from Genuine. The Momdjians explained that the purpose of the loan from Genuine was to pay off debt and obtain additional funds to build their jewelry business. Kalajian had an extended-family relationship with Joyce Momdjian, as well as a social and former work relationship.*fn3
On July 18, 2003, Genuine loaned $650,000 to Momdjian. The loan was secured by a first deed of trust on a parcel of real property owned by the Momdjians. On July 25, 2003, Genuine loaned $250,000 to Momdjian. The loan was secured by a second deed of trust on the same property. The Momdjians did not reveal in connection with their loan requests the claims against them by plaintiff and did not discuss with Kalajian any dealings they had with plaintiff. A prior judgment by plaintiff against Momdjian surfaced during the title search on the property for the loans by Genuine, but Kalajian was assured that the judgment had been removed and the property was free and clear of any claim. Kalajian did not know the amount of plaintiff‟s claims.
On July 18, 2003, the Momdjians appeared before Markarian, an employee of Genuine, to sign the documents for the $650,000 loan from Genuine to Momdjian, and she notarized the signatures of the Momdjians. On July 25, 2003, Markarian notarized the signatures of the Momdjians in connection with the $250,000 loan from Genuine to Momdjian. The Momdjians signed the documents before Markarian. The Momdjians placed their thumbprints in Markarian‟s notary journal in connection with the notarization of the first loan, but she did not believe thumbprints were necessary for her notarization of the second loan. Markarian had no knowledge of the Momdjians‟ dealings with plaintiff. The Momdjians never transferred anything of value to Kalajian or Markarian.
Plaintiff filed a complaint asserting causes of action for fraudulent transfer and conspiracy*fn4 against all six named defendants*fn5 and a negligence claim against Markarian only. Defendants Genuine, Kalajian and Markarian filed a summary judgment motion directed at the fraudulent transfer and negligence claims. The motion was supported by a separate statement of undisputed facts, the declarations of the individual defendants, and certain documentary evidence.
Over two months after the motion was filed, plaintiff filed an opposition to the motion, requesting that the motion be denied or continued under section 437c, subdivision (h) to allow plaintiff to conduct discovery. The opposition was supported by the declaration of plaintiff‟s counsel, who asserted that in an appeal in a separate action, two issues involved in this case were currently pending determination. Plaintiff‟s counsel also stated that three weeks prior to the filing of plaintiff‟s opposition, he had received documents from defendants in response to a document demand, and those documents were currently under review by plaintiff‟s expert. In addition, plaintiff‟s counsel informed the trial court that he had noticed the depositions of defendants and that he expected "to discover facts from the review of the documents and the depositions of defendants to submit in opposition to defendants‟ motion." Plaintiff did not submit a memorandum of points and authorities in opposition to the merits of defendants‟ motion or a separate statement supported by evidence.
Defendants replied to the opposition, arguing that plaintiff‟s submission failed to raise a triable issue of fact and failed to specify the information plaintiff needed to oppose the motion and expected to discover if a continuance was granted. According to defendants‟ counsel, plaintiff had already deposed the individual defendants in a pending bankruptcy action concerning the subject matter of this action and had obtained on July 11, 2006, in the bankruptcy action the same documents that were produced to plaintiff in this action.
The trial court held a hearing on the summary judgment motion and issued a minute order*fn6 ruling that, "[t]he motion for summary judgment is granted in its entirety. There are no triable issues of material fact. . . . Although an opposition should contain "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken,‟ plaintiff‟s opposition has none of these items. (Code of Civil Procedure section 437c (b)(2).) Plaintiff‟s response is also procedurally defective, in that it does not provide a separate statement as mandated by Code of Civil Procedure section 437c (b)(3). Plaintiff‟s request to continue the hearing under Code of Civil Procedure section 437c (h) is denied for reasons set forth in defendants‟ reply papers."
Following the granting of defendants‟ motion for summary judgment, plaintiff filed a motion for reconsideration of the order granting summary judgment, and defendants filed a motion for monetary sanctions under section 128.7, both of which motions the trial court denied. The trial court thereafter entered a judgment in favor of defendants from which ...