Berney v. Downey Savings & Loan
Filed 2/3/06 Berney v. Downey Savings & Loan CA2/2



NOT TO BE PUBLISHED


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 This opinion has not been certified for publication or ordered published for purposes of rule 977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 TWO






RUSSELL L. BERNEY et al.,

Plaintiffs and Respondents,

v.

DOWNEY SAVINGS & LOAN, F.A.,

Defendant and Appellant.
B181285

(Los Angeles County

Super. Ct. No. BC307245)


APPEAL from a judgment of the Superior Court of Los Angeles County.

Ernest M. Hiroshige, Judge. Reversed and remanded.

Ivanjack, Shuck & Milstead, Holly A. Hayes; Joey DeLeon for Defendant and Appellant.

Berney Law Corporation and Russell L. Berney, in pro. per., for Plaintiffs and Respondents.

___________________________________________________

The trial court imposed sanctions of $9,000 on the defendant in this case. On appeal, the defendant challenges the propriety and the amount of the sanctions. We conclude that the trial court was authorized to award sanctions because the defendant filed a flawed separate statement of undisputed material facts in support of its motion for summary judgment. However, the amount of the award is not justified, as we discuss in detail below. Accordingly, the matter must be returned to the trial court for further consideration.

FACTS

Appellant Downey Savings & Loan Association, F.A. (Downey) is the target of a lawsuit brought by respondents Russell L. Berney (Berney) and the Russell Berney Personal Residence Trust (the Trust). Berney is a lawyer, and is representing himself and the Trust in this litigation. Berney applied to Downey for a loan on his residence. During the loan application process, Downey received a preliminary title report and discovered that the residence is owned by the Trust, and that Berney is not the trustee. Downey obtained a copy of the Trust instrument and learned that the Trust is irrevocable. Downey does not make loans to irrevocable trusts. Berney and the Trust sued Downey for taking a $50 loan application fee and then denying them a loan.

On July 19, 2004, Downey filed a motion for summary judgment. Downey admits that its accompanying separate statement of undisputed material facts did not conform to state court rules because it did not individually address each cause of action alleged in the complaint. To cure the defect, Downey filed an amended separate statement of facts with the court on August 13, 2004, and attempted to serve it on Berney. However, Berney's numerical address was transposed upon the proof of service, so he did not receive proper notice of the amendment. The amendment did not make any substantive changes to the separate statement: the defective, original statement listed 37 undisputed material facts, and the amendment repeated the same 37 undisputed facts six times over, while placing them under headings for each of the six causes of action.

At a hearing on November 1, 2004, Berney complained that he did not receive the improperly addressed amendment. The court observed that Berney's objections to the original separate statement were well taken, and that Berney â€