Opinion
NOT TO BE PUBLISHED
Proceedings in mandate after trial court denied summary judgment. San Diego County Super. Ct. No. GIC 878347, Jeffrey B. Barton, Judge.
HUFFMAN, Acting P. J.
FACTUAL AND PROCEDURAL BACKGROUND
Randall and Trudy McAvoy in their capacity as trustees of a family trust (McAvoys) owned a commercial building (property) that housed their carpentry studio (business) and four tenants. McAvoys sold the property and business to Charles Hughes, who formed two entities — Charvania Investments LLC (Charvania), and Willster Construction, Inc. (Willster) — for the transaction. In June 2004, Charvania bought the property for $2.7 million, and Willster bought the business for $750,000. The buyers deposited cash and obtained Small Business Administration (SBA) loans through Community Bank, and McAvoys carried back secured notes on the property and business.
Hughes was unsuccessful in the business and fell behind on payments to McAvoys. McAvoys recorded a notice of default, and Hughes listed the property for sale. Sidney and Judith Levine (Levines) agreed to buy the property for $3.15 million and enter into a lease with Willster based on Hughes' purported verbal representation that Charvania would use the sale proceeds to infuse capital into Willster. Escrow closed in June 2006, paying the secured liens including McAvoys' notes and allocating the remaining proceeds first to the Levines (for payment of Willster's security deposit and first month's rent) and then to Community Bank to pay down Willster's SBA loan.
After the close of escrow, Willster shut its doors and, along with Hughes, filed for bankruptcy. Levines were left with an abandoned building but still required to make payments on the loan they obtained to finance the purchase.
In 2007 Levines, in their capacity as cotrustees of their family trust, filed suit against various parties including McAvoys against whom they asserted causes of action under the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.). McAvoys cross-complained against Levines and the broker.
The broker has an appeal pending from the denial of his motion to compel arbitration (D052802).
McAvoys moved for summary judgment or alternatively summary adjudication asserting the payments to retire their notes were made in good faith, for reasonably equivalent value, and based on the parties' written escrow instructions that the proceeds be distributed exactly as they were and that Charvania receive no funds from the sale. The court tentatively granted the motion. After hearing argument and taking the matter under submission, however, the court issued an order denying the motion, which stated Levines had raised triable issues of material fact but did not specify issues or evidence, and affirmed the evidentiary rulings made at the hearing.
In this petition, McAvoys fault the trial court for denying the motion without specifying triable issues of material fact or identifying evidence. They also assert they were prejudiced by the trial court's refusal to grant them sufficient time to prepare and file their motion, and argue they are entitled to judgment on the merits. We requested a response, and later issued Palma notice making specific reference to Tera Pharmaceuticals v. Superior Court (1985) 170 Cal.App.3d 530, 532 and Payless Drug Store v. Superior Court (1993) 20 Cal.App.4th 277. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171.)
DISCUSSION
The order denying summary judgment is defective on its face. Code of Civil Procedure section 437c, subdivision (g), requires: "Upon the denial of a motion for summary judgment, on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that a triable controversy exists." (Emphasis added.) The court here did not specify facts or refer to the evidence. Failure to comply with the specification requirement is itself sufficient to require that a writ be issued. (Globe Indem. Co. v. Superior Court (1992) 6 Cal.App.4th 725, 728; Tera Pharmaceuticals v. Superior Court, supra, 170 Cal.App.3d 530, 532 [failure to detail conflicting evidence on each issue]; Payless Drug Store v. Superior Court, supra, 20 Cal.App.4th 277 [insufficient merely to refer to opposition filed].)
The court must make the same specification when it denies a motion for summary adjudication of issues based on the existence of a triable controversy. (Code of Civ. Proc., §437(c), subd. (f).)
We also reject Levines' argument that McAvoys must make a request on the trial court to trigger the statutory specification. The statute puts the onus on the court to specify facts and refer to conflicting evidence when it denies summary judgment based upon a triable controversy, and imposes no express obligation on the parties to ask the court to perform its duty.
Because the relevant facts are not in dispute, the law is well-settled, and McAvoys' entitlement to relief is clear, we conclude a peremptory writ in the first instance is proper. (Code of Civ. Proc., § 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4; Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to vacate its order denying the motion for summary judgment, to reconsider the motion, and to enter an order in compliance with statute. McAvoys are entitled to costs in the writ proceeding. This opinion is made final immediately as to this court. (Cal. Rules of Court, rule 8.264(b)(3).)
WE CONCUR, HALLER, J., McDONALD, J.