Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 05CC02747 Steven L. Perk, Judge.
Burke Molina and Gregory M. Burke for Plaintiff and Appellant.
Newmeyer & Dillion and Michael A. Corfield for Defendant and Respondent.
OPINION
BEDSWORTH, J.
Christina Burke appeals from a judgment for Jon Nathan Owens entered after he prevailed on a motion for summary judgment. Her main arguments are that a continuance should have been granted to allow completion of discovery, there was no showing her causes of action lacked merit, and her dismissal of the action should not have been set aside. We disagree and affirm.
FACTS
This is an action by Burke against Owens for conversion of the property of Antares Design System, Inc. (Antares), a now defunct corporation once in the business of custom motorcycle painting. Burke was a shareholder, officer, and director of Antares. The complaint alleged that in December 2002, Antares defaulted on its lease and was evicted from its business premises. Antares entrusted its office and business equipment to the company president, Ryan Stewart, in order to continue operations at another location. In December 2003, Burke purchased Antares’ assets and business opportunities under an agreement to liquidate them for the benefit of creditors and shareholders.
The facts are drawn from the complaint, the parties’ separate statements of undisputed facts, and the evidence submitted on the motion for summary judgment.
In 2004, it was alleged, Stewart formed a new motorcycle painting company with Owens and others, Defiant Customs, LLC (Defiant). They used the former Antares equipment, collected payment for work done by Antares, and took over business opportunities (painting contracts) that belonged to Antares. The causes of action against Owens were for conversion (denominated “receipt of stolen property”) and conspiracy (with Stewart and others) to convert Antares’ property and business opportunities.
The conversion claim also named Defiant, Stewart and two others who were alleged to be associated with Defiant, Christopher Greazel and Kimbal Hotinger. The conspiracy claim was against all of the defendants. Other causes of action against Stewart were for conversion of $30,000 allegedly due Antares, fraud, misrepresentation, concealment, slander, accounting, and constructive trust.
The complaint was filed in February 2005. It appears Burke propounded discovery to Owens shortly thereafter, because his responses of May and June 2005 are in the record. Burke did not serve discovery on Defiant until March 2006 (this is claimed by Owens, but without a record citation). Apparently responses were not forthcoming and a motion to compel was made, but it is not in the record and we know of its existence only from a later order granting the motion.
Meanwhile, on April 19, 2006, Owens moved for summary judgment. Hearing was set for July 7, 2006. Owens’ separate statement of undisputed facts alleged, among other things, that Owens never received the assets allegedly converted from Antares, never knowingly received stolen property, never helped Stewart convert assets or business opportunities of Antares, and never helped any of the other defendants do so. (Owens’ undisputed facts 36-39.) The facts were based on Owens’ accompanying declaration.
Burke’s June 23, 2006 opposition argued she did not have a chance to complete discovery. A memorandum of points and authorities asserted Owens’ discovery responses denied he had documents Burke requested, saying Defiant had them, and Defiant refused to produce the documents until Burke moved to compel. The trial court had only recently (June 16, 2006) ordered Defiant to respond by July 11, 2006. Burke’s separate statement responded to each of Owens’ facts 36-39 with the following statement: “Plaintiff is unable to admit the facts asserted because she has not had a reasonable opportunity to conduct discovery.”
The motion was continued to August 4, 2006 (with trial scheduled for September 11, 2006). Defiant responded to Burke’s interrogatories and requests for production on June 29, 2006, and amended its production response on July 17, 2006.
Burke’s supplemental opposition to the motion argued further discovery was needed. In a memorandum of points and authorities, Burke said documents received from Defiant revealed it had hired two former Antares employees as independent contractors, and she claimed to have served additional discovery concerning their involvement with Defiant. The memorandum also stated that Burke had just learned from the documents the names of Defiant’s suppliers and had issued subpoenas for their records. The newly served discovery was not attached. Nor did counsel’s accompanying declaration attest to any of the facts alleged in the memorandum. (Instead, it attached documents which counsel contended showed Defiant’s written responses were less than candid in revealing its independent contractors and suppliers.)
The motion was continued again, this time to September 8, 2006. The trial court noted the reason was “to complete discovery.” It appears Burke subsequently noticed five depositions (including Owens’) for the week prior to trial, then failed to arrange for a court reporter or show up for them. At least that is what Owens’ counsel said in a declaration, uncontradicted by Burke.
On September 5, 2006, Burke wrote to Owens to say she was continuing the depositions until she could move to complete further answers to evasive discovery responses. She also gave notice she would move ex parte on September 7, 2006, to continue the trial date. When Owens’ counsel showed up to oppose the continuance, he learned no motion had been filed nor was one on calendar.
On September 7, 2006, a tentative ruling granting the motion for summary judgment was posted. Burke faxed a letter to Owens’ counsel that afternoon, saying she had dismissed the action without prejudice the previous day, and she acted because the trial court had refused to continue the trial date to permit completion of discovery. The dismissal is not in the record.
The motion was heard on September 8, 2006. The trial court found Owens offered sufficient evidence that Burke could not prove conversion or conspiracy. That shifted the burden of production persuasion to Burke, but she failed to offer any evidence of a triable issue on either claim. The motion was granted and judgment entered for Owens.
I
Burke argues the trial court improperly denied her request to continue the motion to allow her to complete discovery and should have denied the motion because discovery was not completed. Neither point has merit.
The motion was twice continued to allow Burke additional time for discovery, first to August 4, 2006, and then to September 8, 2006. Nothing in the record indicates Burke sought any further continuance. To the contrary, although Burke told Owens she would move for a continuance on September 7, 2006, counsel appeared in opposition only to learn no motion had been filed or calendared. Of a piece, Burke’s brief fails to identify the request for a continuance she claims was wrongly denied, and a supporting record citation is to the order granting summary judgment, not a motion for a continuance. So, it cannot be said the motion should have been postponed a third time when no such request was made.
The only later request for a continuance that appears in the record came on August 16, 2006. It was by Owens. He moved ex parte to continue the trial to October due to counsel’s prior vacation plans. Burke did not join in the motion. According to counsel’s supporting declaration, Burke had refused to stipulate to the continuance when Owens would not consent to an extension of the discovery cut-off. The trial court denied the motion without explanation.
Nor can we say the motion should have been denied for lack of discovery. After two continuances, with no further motion showing why essential facts still could not be obtained, no basis was shown to deny summary judgment for lack of discovery, or to further continue the motion.
II
Burke contends Owens failed to make a prima facie showing that shifted the burden of production to her. She reasons that Owens was not entitled to rely on her separate statement’s failure to dispute his declaration, because she had not completed discovery. The argument is comprised of two strands – one relates to discovery and the second to whether a triable issue was shown. We cannot agree with either.
A defendant moving for summary judgment has the burden of showing a cause of action has no merit, which is satisfied by showing one or more elements cannot be established. Then, “the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . . The plaintiff . . . shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (Code Civ. Proc., § 437c, subd. (p)(2).)
On the discovery issue, our view remains firm that no grounds were shown for continuing or denying the motion for lack of discovery. Burke contends a party moving for summary judgment must show the opposing party has had an adequate opportunity to conduct discovery. But the cited cases did not raise that issue, and in fact the burden of raising the need for discovery is on the opposing party. (Code Civ. Proc. § 437c, subd. (h); Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224 [failure to request a continuance to pursue discovery waives the right to further discovery].) As we have said, it was not carried here.
As for a triable issue, Owens’ supporting declaration stated he had never received Antares’ assets, or assisted another defendant in converting those assets. That is prima facie evidence Owens did not convert Antares’ assets or participate in a conspiracy to do so. The burden of production then shifted to Burke to make a prima facie showing there was a triable issue. Whether Burke met her burden is another question, one we take up shortly in the following section. But there is no doubt Owens made a sufficient showing to throw the burden onto Burke to produce evidence of a triable issue or suffer summary judgment.
Burke also contends documents obtained after summary judgment show Owens withheld evidence, so the burden of production never shifted to her. But that is not the law. The burden shifts once the moving party makes a prima facie case that a cause of action has no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) Contrary evidence does not prevent the burden shifting, but may be used by the opposing party to show a fact dispute that warrants trial. Nor is the later discovered evidence properly before us. The way to introduce evidence discovered after summary judgment is by motion for new trial. (Cf. Scott v. Farrar (1983) 139 CalApp.3d 462, 468-469; Weil, Brown, & Rylaarsdam, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:68, p. 10-27, ¶ 10:375, p. 10-132.) No such motion was made, so any contention based on later-discovered evidence was waived.
III
Burke contends she offered evidence of a triable issue of material fact. Upon examination of the record, we cannot agree.
The first evidence is three letters demanding return of the property allegedly converted. One was to Stewart, a second to Stewart with a copy to Owens, and a third to Owens. A declaration from Burke’s counsel (and husband) alleged Owens never responded, and his silence in the face of an accusation of a crime was evidence he admitted the accusation. But the trial court sustained objections to the statements that Owens never responded to the letters (objections 51, 57, and 60 to the declaration of Gregory Burke), and Burke does not argue those rulings were in error. So this evidence was not before the trial court, nor this court, and it does not raise an issue for trial.
Next, Burke challenges Owens’ credibility, pointing to evidence she contends demonstrated he was not telling the truth. But that is not enough to raise a triable issue. The general rule is summary judgment may not be denied for lack of credibility of the moving party’s witnesses or the opportunity to cross-examine. (Code Civ. Proc., § 437c, subd. (e).) An exception gives the trial court discretion to deny the motion where the only proof of a material fact is a declaration of an individual who was the sole witness to the fact, or where the declarant’s state of mind is a material fact. (Code Civ. Proc., § 437c, subd. (e); Violette v. Shoup (1993) 16 Cal.App.4th 611, 621.)
Only one of the challenged statements goes to Owens’ state of mind. That was Owens’ claim he never knowingly received stolen property. Burke never explains why it was an abuse of discretion to accept the statement and grant the motion, so the point was waived. And even if it was not, the trial judge acted within his discretion. The statement is irrelevant, since lack of knowledge is not a defense to conversion, which imposes strict liability for a wrongful interference with dominion over property of another. (Burlesci v. Petersen, supra, 68 Cal.App.4th at p. 1066.) To refocus on the point at hand, Burke’s challenges to the credibility of Owens’ declaration do not require denial of the motion. Since Burke failed to come forward with evidence of a triable issue of material fact, summary judgment was proper.
IV
Next, Burke argues it was an abuse of discretion to set aside her dismissal of the action. We think not.
A party may dismiss his action without prejudice before the time to file opposition to a summary judgment motion (Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1172-1173), but not after he fails to file opposition. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 257.) In an analogous situation, it has been held impermissible to dismiss without prejudice after an adverse tentative ruling (sustaining a demurrer without leave to amend), because allowing the dismissal “would make a mockery of the tentative ruling procedure . . . .” (Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 73.)
There was no abuse of discretion in setting aside the dismissal. Owens suggests, without denial by Burke, that the dismissal was filed after the tentative ruling was posted on September 7, 2008, the day before the hearing on the summary judgment motion. The dismissal is not in the record, and the consequences of the omission must fall upon the appellant, Burke. The record does contain Burke’s September 7, 2007 letter advising Owens of the dismissal. It bears a fax legend across the top that indicates it was faxed by Burke’s counsel at 2:56 p.m. Burke did not appear at the summary judgment hearing on September 8, 2007, to support her dismissal, and the trial judge set it aside. On the record before us, it is a fair inference the dismissal followed the tentative ruling. For that reason, the trial judge acted within his discretion in setting aside the dismissal and ruling on the motion.
V
Finally, Burke asks for sanctions on appeal to penalize Owens for filing a discovery sanction motion in the trial court after a notice of appeal was filed. She contends the motion violated the automatic stay that accompanies an appeal. The argument is meritless.
No motion for sanctions was filed, so the point is not properly before us. A party seeking sanctions on appeal must file a separate motion for sanctions (Cal. Rules of Court, rule 8.276(a)), absent which he will not be heard on the matter. (Kajima Engineering and Construction, Inc. v. Pacific Bell (2002) 103 Cal.App.4th 1397, 1402.) No grounds for sanctions are shown.
Since Burke did not seek a third continuance to complete discovery, nor offer evidence of a triable issue of material fact, she cannot complain that summary judgment was wrongly granted. And no abuse of discretion is shown in setting aside her dismissal of the action filed after an adverse tentative ruling on the motion. The judgment appealed from is affirmed. Respondent is entitled to costs on appeal.
WE CONCUR: SILLS, P. J. RYLAARSDAM, J.
Conversion is the wrongful exercise of dominion over the property of another. (See, e.g., Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) A civil conspiracy requires an agreement, a wrongful act, and damages. (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 511.)