## Facts

- A judgment creditor obtained a temporary protective order restricting a debtor from further encumbering certain real property and sought to attach that property.
- Around the same period, the debtor and spouse sought two loans from a lender to pay debts and fund their jewelry business.
- The lender made a $650,000 loan secured by a first deed of trust and a $250,000 loan secured by a second deed of trust on the property.
- The borrowers did not disclose the creditor’s claims or the protective order in the loan process.
- During title review, a prior judgment in the creditor’s favor appeared, but the lender was told it had been removed and that title was free of claims.
- The creditor later sued the lender and its principals for fraudulent transfer and negligence, alleging the loans were intended to hinder collection and were improvidently made despite the creditor’s rights.

## Issues

1. Whether summary judgment may be granted when the moving parties make a prima facie evidentiary showing, but the opposing party fails to file the separate statement required by Cal. Code Civ. Proc. § 437c(b)(3).
2. Whether Cal. Code Civ. Proc. § 128.7(c) required the trial court to impose monetary sanctions if the plaintiff’s action allegedly violated § 128.7(b).

## Decision

- The Court of Appeal affirmed summary judgment for defendants.
- Defendants’ motion was supported by a separate statement, declarations, and documents establishing a prima facie entitlement to judgment.
- Plaintiff failed to file a compliant separate statement and failed to submit admissible evidence creating a triable issue of material fact.
- The trial court properly treated defendants’ supported facts as undisputed and properly denied a continuance where plaintiff did not identify essential facts to be obtained through additional discovery or explain prior inability to obtain them.
- The Court of Appeal also affirmed denial of defendants’ sanctions request, holding monetary sanctions under § 128.7(c) are not mandatory.

## Legal Principles

- Summary judgment cannot be granted solely because the opponent failed to file a separate statement; the moving party must first make a prima facie evidentiary showing of entitlement to judgment as a matter of law.
- Once the moving party makes a prima facie showing, the burden shifts to the opponent to produce admissible evidence showing a triable issue of material fact; procedural noncompliance in the opposition may be fatal when no counter-evidence is presented.
- A request for continuance to obtain discovery in opposition to summary judgment requires a specific showing of what facts are essential, why they are essential, and why they could not have been obtained earlier.
- Cal. Code Civ. Proc. § 128.7(c) authorizes sanctions for violations of § 128.7(b) but does not impose a mandatory duty to award monetary sanctions; the trial court retains discretion to deny sanctions.

## Conclusion

The court upheld summary judgment because defendants carried their initial evidentiary burden and plaintiff neither filed the required separate statement nor produced admissible evidence raising a triable issue, and it confirmed that monetary sanctions under § 128.7 are discretionary even if a violation is asserted.


Kojababian v. Genuine Home Loans, Inc., 174 Cal. App. 4th 408, 94 Cal. Rptr. 3d 288 (Ct. App. 2009)