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■ Kojababian v. Genuine Home Loans, Inc., No. B205766

INTRODUCTION

            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)[1] 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.

FACTUAL BACKGROUND

            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.[2]

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.


■ Held:

In an action for fraudulent transfer and negligence, district court's grant of summary judgment is affirmed where: 1) the trial court correctly determined that no triable issue of fact remained since defendants' prima facie showing as to both causes of action was not rebutted by plaintiff; 2) the court did not abuse its discretion in granting the summary judgment motion without affording plaintiff the opportunity to cure his failure to file a separate statement; and 3) trial court did not abuse its discretion win denying defendant's motion for sanctions under Code of Civ. Pro. sec. 128.7 as there was no evidence to suggest the trial court's conclusion that sanctions were not warranted was arbitrary.  
Kojababian v. Genuine Home Loans-B205766-  5/28/09 CA2/5
Kojababian v. Genuine Home Loans-B205766-  5/28/09 CA2/5-PDF
 

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