Filed 1/30/18 Aza Properties v. Union Bank CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
| AZA PROPERTIES, LLC,
Plaintiff and Appellant,
v.
UNION BANK, N.A. et al.,
Defendants and Respondents.
| C083048
(Super. Ct. No. SCV0035603)
|
After foreclosure on three properties owned by members of the Alizadeh family, the Alizadehs and defendants Union Bank and Unionbancal Mortgage Corporation (collectively the Bank) entered into a settlement agreement under which plaintiff AZA Properties (AZA) would purchase the properties from the Bank. When that agreement was not consummated, AZA brought suit against the Bank, alleging the Bank prevented the closing of the transaction. AZA appeals from the judgment entered after the Bank’s successful motion for summary judgment. AZA contends the trial court erred in (1) sustaining the Bank’s objections to a declaration offered in opposition to the summary judgment motion, (2) denying a continuance, and (3) denying a motion for reconsideration. We find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Members of the Alizadeh family owned three properties in Granite Bay. The Bank held the mortgage on the properties and foreclosed. In August 2014,[1] the Alizadehs and the Bank entered into a settlement agreement, under which the Bank agreed to sell the properties to AZA for $1.45 million.[2] The deadline for the sale was August 22 and the agreement provided that time was of the essence. The Bank extended the deadline to August 28. AZA’s proposed lender did not fund the loan and the sale fell through.
AZA filed a complaint against the Bank for specific performance, quiet title, and breach of contract. The complaint alleged as follows: The Alizadehs had obtained financing for the purchase from Private Wealth Capital (PWC). PWC requested documentation from the Bank in the form of: a signed payoff demand; documentation that the Bank owned the properties; and copies of property deeds. The Bank failed to provide this documentation; consequently, PWC was unable to fund the loan.
The settlement agreement and a September 23, 2014 declaration from Justin Cozart were attached as exhibits to the complaint. In his declaration, Cozart, whose relationship to the transaction was not specified in the declaration, stated that PWC was prepared to make a loan of $1.45 million. He first saw the settlement agreement on August 22, the day the agreement expired. On August 23, he spoke with Kevin Whiteford, an attorney for the Bank, and requested a signed payoff demand, documentation that the Bank owned the properties, and copies of property deeds.
Cozart declared: “Mr. Whiteford was completely unhelpful. He said that his partner Serlin was in charge but Serlin was on vacation. Mr. Whiteford said he had to check with Union Bank. Mr. Whiteford' s attitude was that Alizadeh had to simply deposit $1.45 million with the bank without any prior documentation. Mr. Whiteford never got back to me and never provided any of the items requested, either immediately or ever. His entire attitude seems to be, this is never going to happen so why should Union Bank bother to provide anything.” The Bank never provided the necessary documents. PWC’s inability to fund the loan by August 28 was due to the Bank’s non-responsiveness and failure to provide the documents.
The Bank moved for summary judgment on the grounds that the Bank was ready, willing, and able to close the purchase and sale on both August 22 and August 28, and the failure to close was not the Bank’s fault.
In support of the motion, the Bank provided the declaration of Mark Serlin, its attorney. Serlin declared he sent the settlement agreement to the Alizadehs and their counsel on August 18. Counsel had represented that the Alizadehs were ready to close immediately so Serlin was surprised the agreement was not signed until August 22. He was on vacation the week of August 25 and when he returned he was surprised to learn the transaction had not closed. Counsel for the Alizadehs asked him to contact Cozart, the representative of the lender. Serlin spoke with Cozart on September 10. Cozart said his company was still considering the loan but had not completed its due diligence. The Bank offered a further extension, conditioned upon an immediate payment of $150,000. This offer was never accepted.
Serlin declared the Bank had the prepared deeds, but never received a request from anyone, including escrow, to deliver them anywhere. He subsequently subpoenaed documents from AJMC Holdings.[3] In response to the subpoena (after an order to compel), Serlin received various e-mails showing that AJMC was not ready, willing, and able to fund the loan as the due diligence had not been completed.
Copies of these e-mails were attached to Serlin’s declaration. These e-mails showed problems between Cozart and the Alizadehs and problems with the loan. On August 25, Cozart wrote: “Every day there has been something new on this despite [Abe Alizadeh’s] representations. [¶] This deal has not been full disclosure.” Later the same day, he wrote about the many “twists and turns” and that the “deal has changed multiple times which has affected our ability to fund.”
One of the documents that Serlin received in discovery was a September 2 letter from Cozart to the Alizadehs setting forth the problems with the loan. The letter stated the original deal involved four properties, but the collateral was later reduced to three. There were also issues with pending actions involving the properties. Cozart also complained about the Alizadehs’ lawyer and emphasized there was no commitment to fund. “The last thing I want to have happen is to fund these deals and be in a position that Union Bank is in right now.”
AZA opposed the motion and requested the court take judicial notice of the 2014 Cozart declaration that had been filed earlier as an exhibit to the complaint. This declaration and an unsigned draft of a new declaration were attached as exhibits to the declaration of Abolghassem Alizadeh (Abe). AZA made two arguments. First, it argued the Bank had delayed the closing by failing to provide the settlement agreement until August 18; the lender would not fund without a copy of the agreement. Second, in reliance on the Cozart declaration, AZA argued that the failure to close was due to the Bank’s failure to provide the requested documentation. As an alternative to denying the motion, the opposition requested a continuance.
The Bank objected to the Cozart declaration on the grounds of hearsay and lack of foundation to establish Cozart’s personal knowledge.
On July 19, 2016, the trial court granted the Bank’s motion for summary judgment. The court found the Bank provided admissible evidence that the lender’s failure to close was due to issues other than the Bank’s failure to provide documentation or information. AZA’s evidence was insufficient to raise a triable issue of fact. The court sustained the objection to Abe’s declaration and its exhibits. The court ruled exhibit A, the unsigned declaration, was inadmissible. It found exhibit B, the signed Cozart declaration of 2014, lacked foundation as to his personal knowledge. The court denied the request for a continuance as AZA had made no showing that essential facts may exist but could not then be provided. Judgment was entered for the Bank on July 28, 2016.
Shortly before the court’s order granting summary judgment, but after the hearing, AZA moved for reconsideration with a hearing date of August 16, 2016. In support of the motion, AZA provided a new declaration by Cozart that included information about his relationship with the lender, thus providing a basis for his personal knowledge. AZA also applied ex parte for a stay from entry of judgment, which was denied.
In September of 2016, the trial court denied the motion for reconsideration, noting that the entry of judgment in July had divested the court of authority to rule on the motion.
DISCUSSION
I
Objections to Cozart Declaration
AZA contends the trial court erred in failing to consider the original 2014 declaration of Cozart in ruling on the motion for summary judgment. In its reply brief, AZA reframes this contention to challenge the court’s sustaining of the Bank’s objection to the declaration on the grounds of lack of foundation.
Opposition to a summary judgment motion may include declarations. (Code Civ. Proc., § 437c, subd. (b)(2).) “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Id., subd. (d).) Personal knowledge means a present recollection of an impression derived from the exercise of the witness’s own senses. (People v. St. Andrew (1980) 101 Cal.App.3d 450, 458, fn. 3.) “A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony.” (Evid. Code, § 702, subd. (b).)
We review the trial court’s evidentiary rulings on a summary judgment motion for an abuse of discretion. (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 852; DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 679.)[4]
Cozart’s 2014 declaration begins: “The facts stated herein are of my own personal knowledge, and if called upon as a witness, I could and would testify competently thereto. [¶] AJMC Holdings was in a financial position to fund the deal at all times.” It continues to discuss the Alizadehs’ application to PWC, PWC‘s decision to fund the loan, and general terms of the loan, and Cozart’s interaction with Whiteford, set forth ante. Nowhere does the declaration provide any facts to show that Cozart had any personal knowledge of the loan. The declaration does not set forth his relationship with the Alizadehs, AJMC, or PWC. The trial court did not err in sustaining the Bank’s objection to the 2014 Cozart declaration.
AZA argues Cozart’s statement that the facts contained in the declaration are personally known to him is sufficient to meet the personal knowledge standard. AZA is, however, not correct on this point. Personal knowledge “must be shown by facts set forth in the declaration, and not merely by conclusions.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 10:109, p. 10-47.) Once a party has made an objection that the proffered witness lacks personal knowledge of the facts to which he proposes to testify, proof of personal knowledge must be shown. (People v. Daniels (1991) 52 Cal.3d 815, 862.) Here, it was not.
AZA next contends Cozart’s 2016 declaration cured the defect. That declaration added a paragraph stating: “At all times relevant to the loan, I was a principal of Private Wealth Capital (‘PWC’), a Division of AJMC HOLDINGS, LLC, a California limited liability company (‘AJMC Holdings’). I was personally involved in the application and processing of the loan and related documents.”
The 2016 declaration, however, was not submitted in opposition to the summary judgment motion. The hearing on the summary judgment motion was held June 14, 2016. Cozart’s 2016 declaration was not filed until July 8, 2016, and was in support of AZA’s motion for reconsideration. Accordingly, it was not before the court when it ruled on the summary judgment motion.
In its reply brief, AZA argues exhibits attached to the unsigned declaration provide the foundational elements of Cozart’s personal knowledge. One of these exhibits is a letter signed by Cozart as Principal of PWC. AZA contends the trial court should have liberally construed its evidence in opposition to the summary judgment motion and relied on the “misplaced” exhibits to establish a proper foundation for Cozart’s declaration. We reject this argument.
It is true that declarations of the party opposing summary judgment are liberally construed. (Dominguez v. Washington Mutual Bank (2008) 168 Cal.App.4th 714, 720.) Liberal construction, however, does not require the court to search through the record to find “misplaced” evidence. The declaration itself must show it is made on personal knowledge. (Code Civ. Proc., § 437c, subd. (d).) AZA made no such showing.
II
Failure to Grant Continuance
AZA next contends the trial court erred in denying its request for a continuance. AZA made the request in the conclusion to its opposition to the summary judgment motion. “Alternatively, Defendants should be entitled to a denial/continuance so as to review and develop further information regarding the statements attributed to Mr. Cozart, who has been unavailable to Plaintiff recently.”
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.” (Code Civ. Proc., § 437c, subd. (h).)
To make the necessary showing for a continuance, “an opposing party’s declaration must show (1) the facts to be obtained are essential to opposing the motion, (2) there is reason to believe such facts may exist, and (3) the reasons why additional time is needed to obtain these facts.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643 (Chavez).) We review the trial court’s ruling on a request for a continuance for an abuse of discretion. (Ibid.)
AZA’s one-sentence request for a continuance to “review and develop further information” falls far short of meeting the showing required to obtain a continuance. First, AZA failed to submit a declaration in support of the request for a continuance, as required by statute. “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion.” (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.) Next, AZA failed to show that essential evidence may exist; instead, it sought to develop evidence without specifying what such evidence would show or why it was essential. It is not sufficient simply to state that further discovery or investigation is contemplated. (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254-255.) The vague statement that Cozart was unavailable to AZA is insufficient to explain to show “why additional time is needed to obtain these facts.” (Chavez, supra, 238 Cal.App.4th at p. 643.)
The trial court did not err in denying the inadequate request for a continuance.
III
Denial of Motion for Reconsideration
AZA appears to contend that its motion for reconsideration should have been construed as a motion for a new trial and granted.[5] We presume this is the basis for its argument that the case should be remanded for consideration of Cozart’s 2106 declaration.
The trial court denied the motion for reconsideration because judgment had been entered. AZA does not contest this ruling, but argues the trial court should have treated the motion as one for a new trial. AZA provides no authority for the novel (and incorrect) proposition that a trial court has a duty to cure counsel’s ignorance or disregard of basic civil procedure by construing motions to be something other than what they purport to be.
Moreover, as with the motion for a continuance, AZA has failed to make an adequate showing for a new trial. Code of Civil Procedure “[s]ection 657, subdivision (4) authorizes the court to grant the motion where the moving party has discovered new, material evidence which could not, with reasonable diligence, have been discovered and produced at trial. ‘The essential elements which must be established are (1)[ ] the evidence is newly discovered; (2)[ ] reasonable diligence has been exercised in its discovery and production; and (3)[ ] the evidence is material to the movant’s case.’ [Citation.]” (Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1161.) Cozart’s 2016 declaration, corrected to establish the basis of his personal knowledge but not providing any new evidence, is not newly discovered evidence. Rather, it is a belated attempt to cure an inexcusable sloppiness in the drafting of Cozart’s 2014 declaration. In short, having failed to present its case properly, AZA seeks a do-over. The law does not so provide.
DISPOSITION
The judgment is affirmed. The Bank shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
/S/
Duarte, J.
We concur:
/S/
Hull, Acting P. J.
/S/
Renner, J.
[1] All dates are in 2014 unless otherwise specified.
[2] The record does not explain the relationship between the Alizadehs and AZA.
[3] PWC is a division of AJMC Holdings.
[4] We recognize that in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 535, our Supreme Court declined to decide “generally whether a trial court’s rulings on evidentiary objections based on papers alone in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.” (See also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255, fn. 4 [observing that the standard of review is unsettled and assuming, without deciding, that the abuse of discretion standard applies].) Our conclusion that the trial court correctly sustained the Bank’s objection to the 2014 Cozart declaration would be the same under either an abuse of discretion or de novo standard of review.
[5] This argument completely fails to comply with appellate rules. It is not stated under a separate heading summarizing the point, and is not supported by citation to authority. (Cal. Rules of Court, rule 8.204(a)(1)(B).) Indeed, the point is hardly intelligible. The Bank construes it as asking this court to treat Cozart’s 2016 declaration as if it had been filed in opposition to summary judgment motion.
