Chee-Wong v. Chen

Filed 1/6/10 Chee-Wong v. Chen CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Laura W. Halgren, Judge. Affirmed.

This action arises out of a loan in the amount of $25,000 given by the plaintiff, Miguel Chee-Wong, to the defendant, Aina A. Chen. When the loan was not paid, Chee-Wong filed an action for breach of contract against Chen, and Chen filed a cross-complaint for emotional distress. Chee-Wong brought a motion for summary judgment on the complaint and cross-complaint, which the court granted.

Chen appeals in propria persona, asserting the court erred in granting summary judgment because (1) the court failed to consider evidence there was a separate oral agreement that raised a triable issue of fact on the complaint; (2) the court should have granted her request to compel discovery; (3) the court should have granted her request for a continuance; and (3) there are triable issues of fact on her cross-complaint. Chee-Wong has brought a motion requesting that, because the appeal lacks merit and is frivolous, we either issue a summary affirmance or dismiss the appeal. We ordered the motion be heard concurrently with the appeal. We affirm the judgment and decline to either issue a summary affirmance or dismiss the appeal.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Loan Agreement

In October 2003 Chee-Wong entered into an agreement whereby he agreed "to lend the amount of $25,000 to the borrower, Aina Chen." Chen agreed to pay Chee-Wong back within 10 days and gave her house as collateral for the loan. The agreement also provided, "Another profit on the lender's part is stated in the oral agreement discussed between the borrower and the lender." The agreement was drafted by Chen.

B. The Instant Action

When Chen did not repay the loan, Chee-Wong filed this action, stating claims for breach of contract, account stated and money lent. Chen answered the complaint, in propria persona, stating that Chee-Wong lent her the money to invest in what turned out to be an "international lottery scam." She also alleged that the money was not a loan, but rather was payment for her (1) providing a reference for Chee-Wong's sister; (2) searching for a marriage partner for Chee-Wong and his father; (3) assisting in registering Chee-Wong for school at Grossmont College; (4) searching for rental property for Chee-Wong's family; and (5) attending Chee-Wong's sister's parent/teacher meetings.

Chen also filed a cross-complaint for intentional infliction of emotional distress, alleging that Chee-Wong threatened to take her daughter, prevented her from leaving her residence and alleged that she owed him $150,000.

C. Summary Judgment Motion

Chee-Wong filed a motion for summary judgment on the complaint and cross-complaint. In support of the complaint, Chee Wong submitted his declaration, setting forth the terms of the loan agreement and stating that Chen had failed to repay the amount owing. In his declaration, Chee-Wong also denied the allegations of the cross-complaint. Chee-Wong's counsel also detailed Chen's failure to respond to discovery requests.

Chen opposed the motion, submitting two "declarations" that were not signed under penalty of perjury. Rather, they simply stated, "Signed, Aina Chen." In her first declaration, Chen asserted that the contract was between her and Chee-Wong's father, Valentine Chee, and that Chee-Wong was merely a "proxy" for his father, Chee. She further stated that the contract was more of an investment in the international lottery than a loan. She further stated that she wired the money to Spain and only later found out the lottery was a scam. Her declaration stated that she promised Chee "to pay back his investment slowly over time to make up for it." She also asserted that the loan was actually a form of compensation for her acting as a guardian for Chee's children. Chen asserted that Chee-Wong harassed her and demanded more money than what was owed. She also stated that she was told that the loan would be forgiven if she made her daughter marry Chee-Wong.

In her second declaration, Chen stated that she timely responded to all discovery requests. She further asserted that Chee-Wong did not respond to her requests for discovery. Chen asserted the amount of the loan should be offset against the costs associated with her caring for Valentine Chee's children.

Chen did not file a separate statement in response to Chee-Wong's motion.

Along with his reply points and authorities, Chee-Wong filed written objections to Chen's declarations, asserting they were improper because they (1) were not signed under oath, (2) contained hearsay; (3) were irrelevant; (4) lacked foundation; and (5) contained impermissible parol evidence.

D. Court's Ruling

The court granted summary judgment on the complaint and cross-complaint. In doing so, the court found that Chee-Wong's declaration established there was a written agreement for Chee-Wong to loan Chen $25,000 and that money was not paid back. The court also found that Chen did not provide "any admissible evidence that she did not enter into the agreement or that she paid any of the amount owed." The court granted judgment on the complaint in the amount of $36,580.12, consisting of principal and interest. The court also granted judgment in favor of Chee-Wong on the cross-complaint, noting that Chee-Wong had submitted evidence that he did not make threats or blackmail Chen and that "[t]here is no evidence offered by [Chen] to support the allegations made [in] the cross-complaint."

DISCUSSION

I. STANDARDS GOVERNING SUMMARY JUDGMENT MOTIONS

A defendant moving for summary judgment bears the burden of persuasion to show either (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is a complete defense to that cause of action. (Code Civ. Proc.,[1] 437c, subds. (o), (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851 (Aguilar); Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) When the motion is based on the assertion of an affirmative defense, the defendant has the initial burden to demonstrate that undisputed facts support each element of the affirmative defense. (Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.) "The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. [Citation.] If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden does 'the burden shift[] to plaintiff to show an issue of fact concerning at least one element of the defense.' " (Id. at pp. 289-290.)

On appeal, we independently review the trial court's decision, considering all of the evidence in the supporting and opposing papers and apply the same standard as the trial court. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Guz, supra, 24 Cal.4th at p. 334.) We liberally construe the evidence in support of the opposing party, resolving doubts concerning the evidence in its favor (Yanowitz, at p. 1037; Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142) and assess whether the evidence would, if credited, permit the trier of fact to find in its favor under the applicable legal standards. (Cf. Aguilar, supra, 25 Cal.4th at p. 850.) We do not weigh the evidence and inferences, but merely determine whether a reasonable trier of fact could find in the opposing party's favor, and we must reverse the order granting summary judgment when there is some evidence that, if believed, would support judgment in its favor. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139.)

II. ANALYSIS

A. Failure To Submit Sworn Affidavit

An opposition to a motion for summary judgment must be supported by admissible evidence showing a triable issue of fact. ( 437c, subd. (b)(3); Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 161.)

"An affidavit is a written declaration under oath . . . ." ( 2003.) A declaration that is not signed under oath is inadmissible and does not constitute competent evidence. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 612 & fn. 3; Common Wealth Ins. Systems, Inc. v. Kersten (1974) 40 Cal.App.3d 1014, 1031.)

The sole matters Chen submitted in opposition to the motion for summary judgment were two "declarations." However, as discussed, ante, neither declaration was signed under oath. Accordingly, they did not constitute admissible evidence that could raise a triable issue of fact on the complaint or cross-complaint. Because Chee-Wong did submit admissible evidence showing a prima facie case on his complaint and because he submitted a declaration denying the allegations of the cross-complaint, the court properly granted summary judgment.[2]

B. Failure To File Separate Statement

Section 437c, subdivision (b)(3) provides: "The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion."

It is undisputed that Chen did not file a separate statement responding to Chee-Wong's statement of undisputed material facts. "Without a separate statement of undisputed facts with references to supporting evidence . . . it is impossible . . . to demonstrate the existence of disputed facts." (Lewis v. County of Sacramento(2001) 93 Cal.App.4th 107, 116.) Thus, the court could have properly granted summary judgment on this ground as well, especially as there was no admissible evidence submitted in support of Chen's opposition and that failure provides an additional ground for affirming the judgment.

C. Request To Compel Discovery

Chen asserts the court erred by ruling on the motion for summary judgment without first compelling Chee-Wong to produce discovery. However, there is nothing in the record reflecting a motion to compel discovery made to the trial court. Chen asserts she made a request at oral argument on the motion for summary judgment. However, a review of the reporter's transcript reveals that no such request was made.

Further, even if such a request had been made orally, it would have been inadequate. Section 2030.300, subdivision (a) allows a party to move to compel discovery if discovery responses are inadequate. However, such a motion must be preceded by a meet-and-confer to attempt to resolve the dispute, and, if the dispute cannot be resolved informally, a noticed motion must be brought. ( 2030.300, subds. (b)-(c).) If a motion is not brought within 45 days of the response to discovery, the party propounding the discovery waives the right to compel a further response. ( 2030.300, subd. (c).)

Chen has not submitted any evidence she brought a motion to compel further responses. Indeed, in her reply brief she admits, "It is clear that Appellant did not make a written motion to compel discovery." Thus, the court did not err in refusing to compel discovery before ruling on Chee-Wong's motion for summary judgment.

D. Request for Continuance

Chen asserts the court erred by denying her request for a continuance. This contention is unavailing.

Section 437c, subdivision (h) provides that a court shall continue a ruling on a motion for summary judgment if the opposing party demonstrates that there are facts essential to the opposition that may exist but cannot be presented at the time originally set for the hearing. Such a request must be made in an affidavit in opposition to the motion, or by ex parte application. (Ibid.) An application for a continuance must be supported by a declaration detailing the facts that would show a triable issue of fact and why the evidence could not be produced in time for the hearing. (Lerma v. County of Orange(2004) 120 Cal.App.4th 709, 715-716.)

During the hearing on the motion for summary judgment, Chen at one point stated, "I need more time . . . .", and at another point stated, "I wanted the opportunity to provide a lawyer . . . ." To the extent these comments could be construed as a request for a continuance, they were inadequate. Chen submitted no declaration specifying evidence that existed that could create a triable issue of fact, but could not be provided to the court at the hearing, nor the reasons such evidence was not presented in opposition to the motion for summary judgment. As detailed, ante, the only thing submitted in opposition to the motion for summary judgment were two "declarations" that were not signed under penalty of perjury. The court did not err in failing to grant a continuance of the hearing on the motion for summary judgment.

E. Motion for Summary Affirmance or To Dismiss Appeal

While this appeal was pending, Chee-Wong filed a motion for a summary affirmance or to dismiss the appeal as frivolous, arguing the appeal has no merit. Chen has opposed the motion, arguing she has properly raised both procedural and substantive issues on appeal, the record shows errors by the trial court, and the appeal is neither subjectively nor objectively frivolous. We ordered the motion to be heard with the appeal.

An appeal is frivolous "only when it is prosecuted for an improper motive─to harass the respondent or delay the effect of an adverse judgment─or when it indisputably has no merit─when any reasonable attorney would agree that the appeal is totally and completely without merit." (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) California courts apply both objective and subjective standards to determine whether an appeal indisputably has no merit. "The subjective standard looks to the motives of the appealing party and his or her attorney, while the objective standard looks at the merits of the appeal from a reasonable person's perspective. [Citation.] Whether the party or attorney acted in an honest belief there were grounds for appeal makes no difference if any reasonable person would agree the grounds for appeal were totally and completely devoid of merit." (Cox v. County of San Diego (1991) 233 Cal.App.3d 300, 313 (Cox), overruled on different grounds in Zavala v. Arce (1997) 58 Cal.App.4th 915, 925, fn. 8.) However, the Flaherty court cautioned that "[c]ounsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals." (Flaherty, supra, 31 Cal.3d at p. 650, italics omitted.)

We decline, under the facts of this case, to either issue a summary affirmance or dismiss the appeal as frivolous. There is no evidence Chen has acted in bad faith. Moreover, although Chen's claims are weak, and the motion for summary judgment itself was granted due to her failure to produce any admissible evidence, reviewing the appeal in its entirety, we do not believe it is an appropriate case for such a result. "[W]e are unable to conclude that the appeal as a whole is so utterly devoid of potential merit" as to justify a dismissal or summary affirmance. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1112.)

DISPOSITION

The judgment is affirmed. Chee-Wong shall recover his costs on appeal.

NARES, Acting P. J.

WE CONCUR:

McINTYRE, J.

AARON, J.

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[1] All further statutory references are to the Code of Civil Procedure.

[2] While this appeal was pending, Chen filed a motion seeking to have this court consider a new affidavit that was not considered by the trial court. This application was opposed by Chee-Wong. On April 17, 2009 we denied Chen's application and the affidavit was returned to her and did not become a part of the record on appeal. Accordingly, we do not address any issues raised by that motion.