Talazazan v. Kadjar

Filed 10/19/06 Talazazan v. Kadjar CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Barbara M. Scheper, Judge. Reversed.

Law Offices of Roya Mohammadi and Roya Mohammadi, for Defendants and Appellants.

Payab & Associates, David Payab and Venessa F. Martinez, for Plaintiff and Respondent.

_____________________

INTRODUCTION

Appellant and defendant Kanan Kadjar appeals from an order granting respondent David Talasazan’s motion for monetary sanctions pursuant to California Code of Civil Procedure section 437c, subdivision (j) (hereafter § 437c(j)).[1] Kadjar contends that the trial court erred because: (1) Talasazan failed to meet the procedural requirements of section 1008, and (2) attorney’s fees are not recoverable as sanctions under section 437c(j). Because respondent did not comply with the reconsideration statute, we reverse.

STATEMENT OF FACTS

Kadjar owned the Northridge Arena Soccer League (NASL). On July 28, 1998, Talasazan was injured at a NASL game during a physical altercation with opposing team members. He filed a personal injury complaint against NASL for negligently failing to provide adequate security for the facility. On March 19, 2001, Talasazan joined Kadjar as a defendant, on a theory of alter ego liability.

On September 25, 2003, Kadjar brought a motion for summary judgment, contending that Talasazan could not prove his alter ego theory because Kadjar was not an owner or shareholder of NASL at the time Talasazan was injured. In a supporting declaration, Kadjar averred that NASL was incorporated by Roy Goring in August 1996; Goring contributed the entire initial capitalization of $180,000; Kadjar was an employee at NASL from September 1996 to September 1998, and purchased the business from Goring on September 4, 1998, three months after Talasazan was injured.

Talasazan’s opposition to the summary judgment motion included a request for sanctions in the amount of $3,500 pursuant to section 437c(j) against Kadjar and Kadjar’s attorney (the first sanctions motion). In support, Talasazan submitted portions of Goring’s deposition in which he testified that in late July 1996, Goring and Kadjar agreed to establish and incorporate NASL with Goring and Kadjar each owning a 50 percent share of NASL; Goring was to be a silent partner in the business and Kadjar was to manage the day-to-day operations of NASL; in September 1998, Goring sold his 50 percent interest to Kadjar. Goring testified that Kadjar both managed NASL and portrayed himself to the public as the sole owner of NASL, even when Goring owned 50 percent of the business. Relying on Goring’s deposition testimony, Talasazan argued that sanctions were warranted because Kadjar, in his declaration submitted in support of summary judgment, falsely averred that he did not own any shares of NASL at the relevant time.

On December 22, 2003, the trial court denied both Kadjar’s motion for summary judgment and Talasazan’s request for sanctions. The case was bifurcated and the issue of whether NASL was the alter ego of Kadjar was tried separately. On April 2, 2004, the trial court found that NASL was the alter ego of Kadjar.

On April 22, 2004, Talasazan’s attorney learned that, in a deposition in an unrelated lawsuit, Kadjar himself testified that he owned NASL from 1996 until 1999. Based on this new information, Talasazan brought another motion for monetary sanctions against Kadjar and his attorney on the same grounds as the first, namely that Kadjar submitted a false declaration in support of the motion for summary judgment (the second sanctions motion.) Like the first, the second sanctions motion was made pursuant to section 437c(j). In addition, the second sanctions motion asserted that sanctions for misuse of the discovery process were available pursuant to former sections 2023 and 2030.

The trial court granted the second sanctions motion pursuant to section 437c(j), finding that Kadjar’s September 2003 declaration was submitted in bad faith and for purposes of delay. It found that the evidence, including the prior court’s finding that NASL was the alter ego of Kadjar and Kadjar’s deposition testimony, demonstrated that Kadjar’s declaration was false. The court awarded sanctions to plaintiff’s attorneys in the amount of $11,480 in attorney’s fees and $1,209.86 in costs. It denied Talasazan’s request for sanctions pursuant to former sections 2023 and 2030.

Kadjar filed a timely notice of appeal. Because we agree that Talasazan failed to comply with section 1008, we need not reach Kadjar’s second contention that attorney’s fees may not be awarded as sanctions.

DISCUSSION

Kadjar contends that because Talasazan’s second sanctions motion failed to comply with the requirements of section 1008, subdivision (b) (§ 1008(b)), the trial court lacked jurisdiction to grant the motion.[2] He argues that the second sanctions motion fails to comply with section 1008(b) in that the affidavit submitted in support thereof did not show “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (§ 1008(b).) Talasazan counters that (1) Kajdar waived his section 1008 argument by failing to raise it in the lower court; (2) in any case, the second motion for sanctions is not governed by section 1008; and (3) even if section 1008 is applicable, the second motion satisfied that statue’s requirements. We conclude that the trial court was jurisdictionally barred from considering the second sanctions motion because the motion did not comply with section 1008.

a. Waiver

A trial court may not consider an application to reconsider an order or renew a motion unless it is made in accordance with the requirements of section 1008. (§ 1008, subd. (e) [section 1008 is jurisdictional]; Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 (Le Francois); Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391; Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1200 (Baldwin).) While appellants ordinarily may not raise arguments on appeal that were not raised in the trial court, because section 1008 is jurisdictional, failure to comply with its prerequisites is not waived by failure to object. (§ 1008, subd. (e); Andrus v. Estrada (1995) 39 Cal.App.4th 1030, 1042 (Andrus).) Thus, Talasazan’s waiver argument fails.

b. Section 1008 is Applicable to the Second Sanctions Motion

Talasazan’s claim that “no requirement exists at law that all motions that revisit previous requests to the court conform to the requirements of [section] 1008[,]” is also without merit.

In pertinent part, subdivision (e) of section 1008, which was added in 1992, reads: “This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, . . . No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.” Regarding the 1992 amendments to section 1008, the court in Baldwin observed: “In our view, the 1992 amendment of section 1008 ‘has tightened . . . the requirements of the statute.’ “ (Baldwin, supra, 59 Cal.App.4th at p. 1199.) “[T]he legislative history of the 1992 amendment to section 1008 shows that the measure was ‘designed “to reduce the number of motions to reconsider and renewals of previous motions heard by judges in this state.” ‘ [Citation.]” (Ibid.) In accordance with this policy, regardless of a motion’s title, if it raises the same issues as an earlier motion, it is properly deemed a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1502 [demurrer was in essence a motion for reconsideration where it sought the trial court’s consideration of issues previously and expressly determined adversely to respondent in prior motion for summary judgment], citing Curtin v. Koskey (1991) 231 Cal.App.3d 873, 878.)

In Andrus, supra, 39 Cal.App.4th 1030, the appellate court found a second motion for sanctions was not a motion for reconsideration of an earlier motion that had been denied. The court in Andrus reasoned that this was so because the second motion was based on a pattern of conduct which, although it included the same conduct at issue in the first motion -- refusal to stipulate to a change of venue -- also included additional, unrelated conduct, including the filing of a frivolous complaint, opposing a well founded demurrer to a conspiracy cause of action, advocating unfounded and untenable legal positions throughout discovery, and failure to follow local rules, among other things. (Id. at pp. 1042-1043, fn. 14.) Accordingly, the court in Andrus found the second sanctions motion in that case was not governed by section 1008; essentially, it was a new and different motion.

Here, although not designated a motion for reconsideration, Talasazan’s second sanctions motion raises issues identical to those raised his first sanctions motion: whether Talasazan is entitled to monetary sanctions as a result of Kadjar’s falsely testifying -- at deposition, in interrogatory responses and in a declaration -- that he did not own NASL at the relevant time period. As such, the second sanctions motion is effectively a motion for reconsideration of the first sanctions motion and is governed by section 1008. That the manner of proof of the lie is different -- Talasazan has even stronger evidence in the form of Kadjar’s own testimony -- does not change the fact that the challenged conduct, the lie, remains the same.

In this respect, the second sanctions motion is distinguishable from the second motion in Andrus. Here, the second motion is based entirely on the identical conduct that formed the basis of the first sanctions motion. As such, compliance with the procedural requirements of section 1008; was a prerequisite to consideration of the second sanctions motion.

c. The Second Sanctions Motion Did Not Comply with Section 1008

Section 1008(b) requires an application for an order that was previously denied be supported by an affidavit detailing (1) what application was made before; (2) when and to what judge it was made; (3) what order or decision was made, (4) what new or different facts, law or circumstances would support a different outcome, and (5) a satisfactory explanation for the failure to present the new or different facts or law earlier. (§ 1008(b); McPherson v. City of Manhattan Beach (2000) 78 Cal.App.4th 1252, 1265 [“To merit reconsideration, a party must give a satisfactory reason why it was unable to present its ‘new’ evidence at the original hearing”]; Baldwin, supra, 59 Cal.App.4th 1192 at p. 1200 [trial court has no jurisdiction to reconsider prior order on the basis of new or different facts or law in the absence of a satisfactory explanation for the failure to present such facts or law earlier]; Andrus, supra, 39 Cal.App.4th at p. 1042 [detailing requirements of section 1008(b)].)

Although a trial court’s ruling on the merits of a section 1008 motion is reviewed for abuse of discretion (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213 [“The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial]; Glade v. Glade (1995) 38 Cal.App.4th 1441), the issue of jurisdiction presents a pure question of law and is therefore subject to de novo review. (Cf. Robbins v. Foothill Nissan (1994) 22 Cal.App.4th 1769, 1774 [subject matter jurisdiction under Financial Institutions Reform, Recovery, and Enforcement Act of 1989 is a pure question of law subject to de novo review].)

Here, Talasazan’s second sanctions motion failed to comply with section 1008. Although it was accompanied by attorney Payab’s sworn affidavit in which Payab avers that he filed an opposition to Kadjar’s motion for summary judgment, Payab does not aver (1) that the opposition included an application for monetary sanctions based on Kadjar’s false averment that he did not own NASL at the relevant time; (2) to what judge the prior application for sanctions was made, or (3) what decision was made on the prior application. Moreover, Talasazan does not provide a full explanation for his failure to present or uncover the allegedly new fact -- that months prior to the first sanctions motion Kadjar had testified in an unrelated deposition that he owned NASL at the relevant time -- in the first sanctions motion.[3]

Although we conclude the order must be vacated because the second sanctions motion did not comply with section 1008, we share the trial court’s finding that Kadjar’s conduct was sanctionable. We do not foreclose the trial court from taking other appropriate steps to address this egregious behavior. For example, even at this late date the trial court on its own instigation would appear to have the power to reconsider a prior ruling. (See Le Francois, supra, 35 Cal.4th at pp. 1108-1109.) To the extent the court has found Kadjar’s counsel complicit in this conduct, other remedies may be appropriate. (See e.g. Rules Prof. Conduct, rule 5-200; Cal. Code Jud. Ethics, canon 3D(2).)

DISPOSITION

The order granting Talasazan’s motion for sanctions is vacated. Each party shall bear his own costs on appeal.NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P. J. BOLAND, J

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[1] All further undesignated statutory references are to the California Code of Civil Procedure. In pertinent part, section 437c(j) states: “If the court determines at any time that any of the affidavits are presented in bad faith or solely for purposes of delay, the court shall order the party presenting the affidavits to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur.”

[2] In pertinent part, section 1008 provides: “(b) A party who originally made an application for an order which was refused . . . may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order of decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. . . . (e) This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, . . . No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”

[3] He describes the fortuitous sequence of events which led him to the discovery of the earlier deposition but not why he failed to discover it before filing the first sanctions motion.