Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCV092365, Ben T. Kayashima, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Kevin Jen-Kang Yang and Lee Yang, in pro. per., for Plaintiffs and Appellants.
Bate, Peterson, Deacon, Zinn & Young, Linda Van Winkle Deacon, Patricia M. Berry, and Barri Friedland for Defendants and Respondents.
OPINION
In this action, Kevin Jen-Kang Yang is asserting a cause of action for disability discrimination against Union Bank of California, N.A. (the Bank), and his wife Lee Yang is asserting a cause of action for defamation against both the Bank and Vincent Tabata, Mr. Yang’s former supervisor. The trial court granted a summary judgment against the Yangs and in favor of defendants. We will affirm.
I
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
The Yangs contend that the trial court erred by granting defendants’ motion for summary judgment.
A. Standard of Review.
“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “[I]n moving for summary judgment, a ‘defendant . . . has met’ his ‘burden . . . if’ he ‘has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, 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 or a defense thereto. . . .’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, second ellipsis added, quoting former Code Civ. Proc., § 437c, subd. (o)(2).) “We review the trial court’s decision de novo . . . . [Citations.]” (Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 65-66.)
The Yangs complain that the trial court’s order failed to specify the evidence on which it was based, as required by Code of Civil Procedure section 437c, subdivision (g), which provides that an order granting summary judgment “shall specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists.” The Yangs never objected to this asserted error below; thus, they have forfeited this contention. (Estes v. Rowland (1993) 14 Cal.App.4th 508, 524, fn. 3.) In any event, precisely because we review the trial court’s decision de novo, any failure to specify such evidence is harmless. (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 703 [Fourth Dist., Div. Two].)
B. Mr. Yang’s Disability Discrimination Claim.
1. Additional factual and procedural background.
In February 2000, Mr. Yang went to work for the Bank as a cost analyst. In November 2001, he filed a worker’s compensation claim, alleging work-related stress. In April 2002, he was diagnosed as suffering from major depression, with psychotic features. Also in April 2002, the Bank allegedly required him to take a disability leave, even though he asked to be allowed to continue to work part time. At that point, the Bank allegedly stopped providing him with 401(k) plan benefits.
The Bank provided its employees with one year of short-term disability benefits and with certain long-term disability benefits, including up to two-thirds of their salary. Most employees with a physical disability could receive long-term disability benefits until they reached age 65. By contrast, an employee with a mental disability could only receive long-term disability benefits for two years. A disabled employee was not eligible for either health or life insurance unless he or she qualified for long-term disability benefits.
An employee became vested in the Bank’s retirement plan after five years of service. Because the Bank required Mr. Yang to take disability leave, he never became vested; if it had not done so, he allegedly would have become vested by 2005.
In May 2004, Mr. Yang filed an action against the Bank in federal court. In November 2004, he filed a separate action against the Bank in state court.
In their respondent’s brief, defendants suggested that we take judicial notice of Mr. Yang’s previous complaints. In their reply brief, the Yangs did not object. Accordingly, we hereby take such judicial notice.
In January 2005, Mr. Yang and the Bank entered into a settlement agreement. It was agreed that his employment with the Bank would end on April 30, 2005. The Bank agreed to pay him $1,200 a month for 15 years starting on May 1, 2005, “which,” the agreement provided, “is immediately after Yang’s . . . []long term disability[] benefits are anticipated to end . . . .” In return, Mr. Yang agreed to dismiss his federal and state actions with prejudice.
Mr. Yang had the right to revoke the agreement within seven days, which was defined as the “Revocation Period.” Because he executed the agreement on January 24, 2005, the Revocation Period expired on January 31, 2005.
In the settlement agreement, Mr. Yang released the Bank “from any and all claims, actions, suits, losses, rights, damages, costs, fees, liabilities, and causes of action of every character, nature, kind or description whatsoever, known or unknown, foreseen or unforeseen, and suspected or unsuspected, arising out of, or relating to, any act or omission[] whatsoever arising from, occurring during or related in any manner to his employment with the [Bank] that he has or may have as of the expiration of the Revocation Period . . ., including without limitation . . . any . . . federal, state or local laws or regulations prohibiting employment discrimination.” (Italics added.) He also expressly waived the right he would otherwise have had under Civil Code section 1542 to avoid the release of any unknown claims.
On April 7, 2005 — i.e., at the end of Mr. Yang’s one year of short-term disability and two years of long-term disability — the Bank allegedly terminated his long-term disability benefits. On April 30, 2005 — i.e., when his employment ended pursuant to the settlement agreement — it allegedly terminated his health insurance.
In the operative complaint, Mr. Yang asserted a cause of action against the Bank for disability discrimination. According to the complaint, and also according to the Yangs’ own characterization of their claims in their opening brief, the basis for this cause of action was twofold. First, the Bank allegedly stopped providing Mr. Yang with 401(k) plan benefits, and did not provide him with retirement benefits at all, because he had become disabled. Second, in providing long-term disability benefits, health insurance, and life insurance, the Bank allegedly discriminated against Mr. Yang because he had a mental disability as opposed to a physical disability.
2. The effect of the release.
The trial court ruled that Mr. Yang’s disability discrimination claim was barred by the release contained in the settlement agreement. The Yangs now contend that this was error, because the settlement agreement released only claims that Mr. Yang had “as of the expiration of the Revocation Period” — i.e., as of January 31, 2005 — whereas his present claims arose after that date.
“‘Release agreements are governed by the generally applicable law of contracts. [Citation.] . . .’ [Citation.]” (City of Hope v. Bryan Cave, L.L.P. (2002) 102 Cal.App.4th 1356, 1370, quoting Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328.) Thus, if Mr. Yang’s present claims are within the scope of the release, the expressed intent of the parties must be controlling, regardless of whether those claims had arisen or accrued for other purposes, such as the statute of limitations. (See Sawyer v. First City Financial Corp. (1981) 124 Cal.App.3d 390, 404-406 [release of claims “arising out of any fact or event occurring prior to the date of this agreement,” including alleged conspiracy, also released claims based on one defendant’s subsequent participation in same conspiracy].)
The wording of the release was very broad. Had it released only “causes of action,” that arguably could have been taken to mean only causes of action that had fully accrued by January 31, 2005. In addition, however, it also released “claims” and “rights.” Moreover, it released not only claims and rights that Mr. Yang “has,” but also that he “may have” as of January 31, 2005.
The Bank allegedly stopped providing 401(k) benefits as soon as Mr. Yang went on disability leave, which occurred in April 2002 — long before he executed the settlement agreement. Hence, the release did bar any claim relating to the failure to provide 401(k) benefits.
The Bank also allegedly prevented Mr. Yang from becoming vested in the retirement plan. An employee became vested after five years of service. However, for vesting purposes, an employee earned one year of service by performing at least 1,000 hours of actual service during any calendar year. Mr. Yang started working for the Bank in February 2000. Accordingly, by the end of calendar year 2000, he had one year of vesting service; by the end of calendar year 2001, he had two years of vesting service. If, as he alleged, the Bank had not required him to go on disability leave, by the end of calendar year 2004, he would have had five years of vesting service — i.e., he would have been fully vested. Accordingly, the point at which the Bank allegedly discriminated against him based on disability was on January 1, 2005. Again, this was before he executed the settlement agreement. Hence, the release barred any claim of discrimination in the vesting of the retirement plan.
The Bank also allegedly terminated Mr. Yang’s long-term disability benefits and his life and health insurance. This did not actually occur until April 2005. Thus, the analysis is a little more complicated, although it leads to the same result. In the settlement agreement, Mr. Yang agreed that his long-term disability benefits were due to end on April 30, 2005. Indeed, he agreed that that was why the Bank would begin making monthly payments to him starting on May 1, 2005. It would be flatly inconsistent for him to agree that the Bank could end his long-term disability benefits on April 30, 2005, while at the same time reserving the right to sue the Bank on the theory that this would constitute disability discrimination. Moreover, because the termination of his health and life insurance benefits was linked to the termination of his long-time disability benefits, he could not sue the Bank over this, either. Even assuming that this claim had not yet ripened into a “cause of action,” it was still a “claim” or a “right” that he “may have” within the meaning of the release. If Mr. Yang knew of an unasserted claim against the Bank, he had a duty to specifically exclude that claim from the release; otherwise, by releasing “all” claims, he misled the Bank, to its detriment. (Edwards v. Comstock Insurance Co. (1988) 205 Cal.App.3d 1164, 1169.)
Separately and alternatively, we also agree with the trial court that Mr. Yang’s claims of discrimination regarding long-term disability benefits and health and life insurance were barred because an employee benefits program can lawfully discriminate between physical and mental disabilities. Certainly this is the law under the federal Americans with Disabilities Act (42 U.S.C. § 12101 et seq.). (E.E.O.C. v. Staten Island Sav. Bank (2d Cir. 2000) 207 F.3d 144, 148-152; Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1116-1118; Kimber v. Thiokol Corp. (10th Cir. 1999) 196 F.3d 1092, 1101-1102; Rogers v. Department of Health and Environmental Control (4th Cir. 1999) 174 F.3d 431, 433-436; Ford v. Schering-Plough Corp. (3d Cir. 1998) 145 F.3d 601, 608-610; Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006, 1015-1019 [en banc]; E.E.O.C. v. CNA Ins. Cos. (7th Cir. 1996) 96 F.3d 1039, 1044-1045; but see Fletcher v. Tufts Univ. (D. Mass. 2005) 367 F.Supp.2d 99, 109-114 ; Iwata v. Intel Corp. (D. Mass. 2004) 349 F.Supp.2d 135, 147-149; Conners v. Maine Med. Ctr. (D. Me. 1999) 42 F.Supp.2d 34, 39-40.) We see no reason not to follow these cases with respect to the state FEHA. “Courts often look to cases construing . . . the Americans with Disabilities Act . . . when interpreting FEHA. [Citation.]” (Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591.)
The Yangs quote the trial court as stating, “I do not believe that the settlement agreement . . . absolutely bar[s] all the claims alleged . . . in th[e] first cause of action,” implying that it contradicted itself. What they fail to mention, however, is that the trial court made this statement in March 2006, when it ruled on the Bank’s demurrer. In July 2007, when it ruled on the Bank’s motion for summary judgment, it was free to come to a different conclusion.
We therefore conclude that the trial court properly granted summary judgment on Mr. Yang’s cause of action for disability discrimination, based on the release.
C. Mrs. Yang’s Defamation Claim.
1. Additional factual and procedural background.
On March 29, 2002, Mr. Yang had a meeting with his supervisor, Vincent Tabata. After the meeting, Tabata wrote a memo summarizing the meeting and commenting on it.
Mrs. Yang alleges that the following four italicized statements in the Tabata memo defamed her:
1. “Original doctor felt/still feels that [Mr. Yang] is not ready to return to work. His wife found another doctor to clear him to return to work. [Mr. Yang] said he was feeling better so he wanted to return to work.” (Italics added.)
2. “[Mr. Yang] is very concerned with holding his current position at all costs. Not sure if [Mr. Yang] is pushing for this . . . or his wife is.” (Ellipsis in original; italics added.)
3. “Wife does not want [Mr. Yang] to show the doctor the written summary of our meeting.”
4. “Encouraged him to work on getting well. To be completely honest with his doctor. Follow the doctor’s instructions. Needed to stand up to his wife, if she was trying to mislead the doctor . . . it wouldn’t help him get well.” (Ellipsis in original; italics added.)
The state Department of Fair Employment & Housing (the Department) instructed the Bank to respond to a discrimination charge that Mr. Yang had filed. In response, on February 28, 2003, Susan Gillaspie, a vice-president of the Bank, sent the Department a “statement of position.”
Mrs. Yang alleges that the following italicized statement in the statement of position defamed her: “ . . . Mr. Yang specifically told Mr. Tabata that his original doctor did not believe that he was ready to return to work, but his wife had found a doctor that agreed to release him. Accordingly, it is quite curious that Mr. Yang now claims that the Bank refused to accommodate him when . . . he expressly admitted to his supervisor that his treating doctor did not release him to return to work.”
The contents of the Tabata memo were allegedly communicated to Gillaspie. A copy of the memo was also found in the files of Mr. Yang’s worker’s compensation attorneys.
The contents of the statement of position were allegedly communicated to the Department and to an attorney for the Bank.
In her deposition, Mrs. Yang admitted that she had no basis for thinking that Tabata was personally hostile to her. She also admitted that she had no knowledge of what Mr. Yang may have said to Tabata at their meeting.
The trial court granted summary judgment on the defamation claim, ruling, among other things, that the allegedly defamatory statements in the Tabata memo were protected by the common interest privilege, and the allegedly defamatory statement in the statement of position was protected by the litigation privilege.
2. Analysis.
i. The common interest privilege.
Under the common interest privilege, a defamation action cannot be based on “a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.” (Civ. Code, § 47, subd. (c).) “Parties in a business or contractual relationship have the requisite ‘common interest’ for the privilege to apply. [Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 440.)
Here, the Bank and Tabata had a common interest in what had occurred at the meeting between Tabata and Mr. Yang, and more generally in all of the facts and circumstances concerning Mr. Yang’s fitness for duty. Inasmuch as Gillaspie was called upon to respond to Mr. Yang’s discrimination complaint, she and Tabata also shared the necessary common interest. Finally, Mr. Yang’s worker’s compensation attorneys also had an interest in learning Tabata’s version of what occurred at the meeting. Moreover, in the course of handling the worker’s compensation claim, they would have obtained the memo in discovery. Accordingly, either they requested the information, or they stood in such a relation to the Bank as to afford a reasonable ground for supposing that the Bank’s motive for providing the memo to them was to cooperate with the worker’s compensation claim. Certainly there are no grounds for supposing that the Bank was trying to lower Mrs. Yang’s reputation in their eyes! Thus, the Bank and Tabata had the necessary common interest with everyone to whom the Tabata memo was allegedly published.
Defendants’ communication of the memo to Mr. Yang’s worker’s compensation attorneys was also protected by the litigation privilege. (See part I.C.2.ii., post.)
The Yangs argue that neither the Bank nor Tabata had an interest in Mrs. Yang’s “personal family life.” However, to the extent that Mrs. Yang’s personal life had a bearing on whether Mr. Yang was fit for duty, they did indeed have such an interest. All of the allegedly defamatory statements were relevant to whether Mr. Yang was fit for duty.
The Yangs do not argue that the Bank failed to disprove malice; they have waived any such contention. In any event, the Bank introduced Mrs. Yang’s concession that she had no evidence that Tabata was personally hostile to her and no way of knowing what her husband actually told Tabata. We therefore conclude that the Tabata memo was protected by the common interest privilege.
The Yangs also argue that the trial court erred by overruling their evidentiary objection to their deposition transcripts. The basis of that objection was that they had never reviewed or corrected the transcripts; they had refused to do so unless the Bank (or the court reporter) either (1) prepaid the costs of postage for mailing the transcripts, or (2) paid the Yangs’ travel expenses (plus unspecified “fees”). Defendants, however, were not required to pay the Yangs’ expenses of reading, reviewing, and correcting the deposition transcripts. (See Code Civ. Proc., § 2025.510, 2025.520.) Alternatively, even if they were, the Yangs never made a motion to suppress the transcripts on this ground. (Code Civ. Proc., § 2025.520, subd. (g).) Hence, the transcripts were fully admissible. (Id., subd. (f).)
The Yangs also objected that defendants did not pay to translate the transcripts into Mandarin. There is no evidence, however, that they had ever asked defendants to do so.
The Yangs also argue that, because Mr. Yang was “totally disabled,” he was not competent to testify. There was no evidence, however, that he was either “[i]ncapable of expressing himself or herself concerning the matter so as to be understood” (Evid. Code, § 701, subd. (a)(1)) or “[i]ncapable of understanding the duty of a witness to tell the truth.” (Id., subd. (a)(2).) Inasmuch as the Yangs themselves introduced his declaration in opposition to the motion for summary judgment, this contention is frivolous.
ii. The litigation privilege.
The litigation privilege “‘applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ [Citation.]” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241, quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) Unlike the common interest privilege, the litigation privilege is absolute — i.e., it applies even if the communication was made with malice. (Ibid.)
Here, by filing a discrimination complaint with the Department, Mr. Yang commenced a judicial or quasi-judicial proceeding; moreover, the Bank was a participant in the proceeding. The Yangs argue that the particular statement concerning Mrs. Yang was irrelevant to the proceeding. The statement of position, however, went on to explain that Mr. Yang could not claim that the Bank had failed to accommodate him when his original treating physician had not cleared him to return to work and when Mrs. Yang had found a different doctor to clear him instead. Thus, the allegedly defamatory statement was made to achieve the Bank’s object in the proceeding, and it had the necessary connection or logical relation to the proceeding.
The Yangs also argue that the Bank did not send them a copy of the statement of position, supposedly in violation of Government Code section 11430.10. Government Code section 11430.10 prohibits ex parte communications during an administrative proceeding. (Gov. Code, § 11430.10, subd. (a).) However, it applies only if the agency is required to hold an evidentiary hearing. (Gov. Code, §§ 11405.20, 11410.10, 11410.50, 11415.50.) Because the Department never issued an accusation (see Gov. Code, § 12965, subd. (a)), and ultimately issued Mr. Yang a “right to sue” letter instead, it does not appear that Government Code section 11430.10 applied. In any event, even assuming that the Bank’s statement of position was an improper ex parte communication, it was nevertheless made in a judicial or quasi-judicial proceeding.
We therefore conclude that the statement of position was protected by the litigation privilege.
D. The Timing of the Motion for Summary Judgment.
The Yangs contend that the trial court erred by specially setting the motion for summary judgment.
1. Additional factual and procedural background.
A motion for summary judgment must be heard no later than 30 days before the date of trial, “unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (a).) In addition, the motion must be served and filed at least 75 days before the hearing, plus five days if served by mail. (Ibid.)
Here, rial was set for July 30, 2007. Accordingly, the last day on which a motion for summary judgment could be heard was Friday, June 29, 2007.
On April 16, 2007, defendants presented an ex parte application to specially set the motion for summary judgment. In a declaration in support of the application, counsel for defendants testified that she had been planning to set the motion for hearing sometime during the week of June 25-29, 2007. However, on April 10, 2007, when she called the court to obtain a hearing date, she learned that it was going to be dark that whole week. At that point it was too late to set a hearing any earlier than June 25, 2007. Accordingly, if the motion was going to be heard at all, it would have to be specially set.
The trial court later confirmed, “ . . . I’m going to go to a wedding. So I’m going to be dark.”
The Yangs opposed the application on the ground that defendants had shown a “lack of diligency” by failing to file the motion for summary judgment sooner.
The trial court granted the application and set the motion for hearing on July 10, 2007.
2. Analysis.
We review an order setting a motion for summary judgment less than 30 days before trial for abuse of discretion. (See Mann v. Columbia Pictures, Inc. (1982) 128 Cal.App.3d 628, 633-634.) Here, the trial court could properly find good cause, in that hearing the motion could (and ultimately did) obviate the entire trial. It was not defendants’ fault that they were unable to set the motion more than 30 days before trial.
The Yangs argue that defendants were not diligent, claiming that they had announced their intention of filing a motion for summary judgment as early as August 2006 and thus had had ample time to file one. As of August 2006, however, there was a demurrer pending; the Yangs had not yet been deposed. The trial court was not required to find that defendants delayed unduly before filing the motion — particularly as defendants had every reason to expect that the motion could still be heard in a timely manner before trial.
The Yangs argue that defendants violated San Bernardino Superior Court Local Rules, rule 520. They did not raise this argument below, and hence they have forfeited it. In any event, the rule was not violated. It provides, as relevant here: “No motion shall be scheduled or noticed for hearing without first contacting the clerk . . . to request a date for hearing.” In her declaration, counsel for defendants stated that she had contacted the clerk and had requested a hearing date but that a timely date was unavailable.
The Yangs also argue that they had only 69 days’ notice of the motion, not 75. They did not raise this argument below, and hence they have forfeited it, too. In any event, they are incorrect. The motion had already been served by personal delivery on April 12. On April 16, the trial court set a hearing for July 10. On April 17, notice of the trial court’s ruling was served by mail. Thus, between April 17 to July 10 — and even allowing an extra five days for service by mail — the Yangs had 79 days’ notice.
Basically, the Yangs are looking at a wholly fictitious notice period — starting on April 13 (when they claim the motion was served) and ending on June 21 (the last day the trial court had available for a timely hearing on the motion). However, precisely because the trial court granted the application to specially set, the motion was not heard on June 21; it was heard on July 10. This was more than 75 days’ notice.
Next, the Yangs argue that the motion was not actually “served and filed” until defendants filed a proof of service (see Cal. Rules of Court, rule 1.21(b) [“a requirement to ‘serve and file’ a document means that [among other things] a proof of service of the document must be filed with the court”]), which they supposedly did not do until May 15. Once again, the Yangs did not raise this argument below and thus have forfeited it. In any event, we also reject it on the merits. On April 16, when defendants filed the motion for summary judgment, they also filed proofs of service of the motion. Whatever document defendants filed on May 15 is not in the record. From its caption, however, it appears to have been a proof of service of the ex parte application, not of the motion. If it was a proof of service of the motion, it was redundant and duplicative.
The Yangs further contend that the declaration in support of the ex parte application contained false statements. They did not raise this argument below in opposition to the ex parte application; hence, they have forfeited it. In any event, it does not appear that any of the assertedly false statements were material. First, according to the Yangs, defendants stated that the motion was filed on April 13, whereas it was really filed on April 16. This made no difference to whether the trial court should have granted the ex parte application. Second, according to the Yangs, defendants failed to state that, when the Yangs were given notice of the ex parte application, they said they would oppose it. The trial court, however, held a hearing on the application, at which the Yangs appeared and argued in opposition to the application. Accordingly, the asserted omission could not possibly have affected the outcome.
At the hearing on the application, Mrs. Yang did state: “I think [defendants’ counsel] made a deceitful [sic] on her declaration . . . . I don’t think with the lack of diligency . . . would be the good cause to request the Court shortening the period.” However, she did not specify what in the declaration supposedly was deceitful, nor did she make it clear that this was a ground of opposition separate and apart from lack of diligence. Thus, this was inadequate to alert the trial court that it was being called upon to determine whether the application contained false statements.
Finally — and in the alternative to the foregoing — even assuming the trial court did err by specially setting the motion for summary judgment, the Yangs cannot show that they were prejudiced. (See Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.) They do not claim that they were somehow handicapped in preparing their opposition to the motion. If their claims could not survive a motion for summary judgment, then we must assume they would not have survived a full trial; defendants would have been entitled to a nonsuit or a directed verdict. Thus, even if the application to specially set had been denied, the Yangs would not have enjoyed a more favorable result.
II
THE YANGS’ MOTION FOR SANCTIONS
The Yangs contend that the trial court erred by denying their motion for sanctions.
A. Additional Factual and Procedural Background.
On April 23, 2007, the Yangs served and filed a motion for sanctions under Code of Civil Procedure section 128.7, on the ground that defendants and their counsel had supposedly made false statements in their ex parte application and motion for summary judgment.
Actually, at that point, it was improper to file the motion for sanctions. Code of Civil Procedure section 128.7, subdivision (c)(1) provides that notice of such a motion “shall be served . . ., but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.” (Italics added.)
The Yangs had not yet set a hearing date. Nevertheless, on May 3, 2007, defendants served and filed an opposition to the motion.
Defendants may have misread the notice of motion, which stated that the motion would be filed (rather than heard) on May 16, 2007. Alternatively, they may have felt that, because the motion had been filed — albeit improperly — they were required to file an opposition to it.
On June 15, 2007, the Yangs refiled the motion for sanctions and set it for hearing on July 10, 2007.
On July 2, 2007, the Yangs filed reply papers.
On July 5, 2007, defendants re-served and refiled the same opposition that they had previously served and filed on May 3.
On July 9, 2007, the Yangs filed a written request to disregard defendants’ July 5 opposition, on the ground that it had not been served and filed at least nine court days before the hearing. (Code Civ. Proc., § 1005, subd. (b).)
The trial court denied the motion for sanctions. It ruled that the only possible statutory basis for sanctions was Code of Civil Procedure section 128.7. It concluded that the assertedly false statements were either trivial, matters of interpretation, or not false.
B. Analysis.
Preliminarily, the Yangs argue that defendants’ opposition papers, filed on July 5, 2007, were untimely. Somewhat unhelpfully, defendants do not really respond to this argument.
Actually, defendants’ opposition was timely. Indeed, it was premature — defendants served and filed it before a hearing date had even been set. Thus, the Yangs were well aware of what defendants were going to argue. They even filed a reply, in which they conceded that “on or about May 3, 2007, [defendants] filed an opposition to the advance notice of motion for sanction[s].” They proceeded to respond to arguments made in the opposition. The fact that defendants later re-served and refiled their opposition is irrelevant.
Separately and alternatively, even assuming the opposition was indeed untimely, the trial court had discretion to consider it. (Cal. Rules of Court, rule 3.1300(d).) The Yangs have not shown that the trial court abused that discretion.
Next, the Yangs argue that the trial court relied solely on Code of Civil Procedure section 128.7, even though their moving papers had also cited Code of Civil Procedure section 2015.5, Business and Professions Code sections 6067, 6068, 6103, 6106, 6128, Civil Code section 3294, and rule 5-200(B) of the Rules of Professional Conduct. They do not explain, however, how these other authorities were relevant. They were not. The only authority for an award of sanctions such as the Yangs were seeking was Code of Civil Procedure section 128.7.
Finally, the Yangs also argue that they were entitled to sanctions, and the trial court erred by ruling otherwise. Under Code of Civil Procedure section 128.7, the trial court can impose monetary and other sanctions against an attorney or a party who has filed a notice of motion or similar paper containing factual contentions that lack evidentiary support. (Code Civ. Proc., § 128.7, subds. (a), (b)(3), (b)(4), (c), (d).) We review the trial court’s ruling for abuse of discretion. (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 767-768.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478.)
This argument requires us to examine each of statements that the Yangs have listed, in this appeal, as false. To the extent that they listed certain statements as false in their motion for sanctions, but have not listed them as false in this appeal, we deem them to have forfeited any reliance on them.
1. Jones’s declaration in support of defendants’ ex parte application.
On April 12, 2007, defendants’ counsel Susan C. V. Jones executed a declaration in support of defendants’ ex parte application to specially set their motion for summary judgment. On April 13, 2003, defendants filed the ex parte application, including the declaration.
Jones’s declaration stated: “Defendants’ [m]otion [for summary judgment] has been timely filed and served. We filed and personally served [d]efendants’ [m]otion on April 13, 2007 . . . .”
The Yangs argue that this was false because, on April 12, when Jones signed the declaration, she could not truthfully state that the motion had already been served and filed on April 13. The relevant date, however, is not when the declaration was signed, but when it was “present[ed] to the court . . . .” (Code Civ. Proc., § 128.7, subd. (b); cf. Collins v. Superior Court (2001) 89 Cal.App.4th 1244, 1247 [“‘[b]efore a party may be convicted of perjury in making a false affidavit, he must either use the affidavit . . . or deliver it to some one for such use’”].)
Admittedly, in the event, the motion was not actually filed until April 16. However, as the trial court noted, “What apparently happened was the ex parte hearing was held on April 13th, Friday, where the motion was presented and considered by the Court. The motion was not officially entered as filed by the clerk until Monday, April 16th. This sequence of events is hardly a basis for sanctions.” We agree — the technical distinction between lodging the motion and filing the motion was immaterial.
2. Jones’s declaration in support of defendants’ motion for summary judgment.
Jones also executed a declaration in support of defendants’ motion for summary judgment. In it, she stated that attached as Exhibits E and F were “true and correct copies of . . . pages from the transcript[s]” of the depositions of Mr. and Mrs. Yang.
The Yangs argued that the copies were not “true and correct” because they had not reviewed and corrected the transcripts. However, as we held in part I.C.2.ii., ante, the transcripts were nevertheless admissible. In any event, unless and until the Yangs did correct the transcripts, Jones’s statement that the copies were true and correct was not false.
3. Memorandum of points and authorities in support of defendants’ motion for summary judgment.
a. Statement regarding previous lawsuits.
In the memorandum of points and authorities in support of their motion for summary judgment, defendants stated: “This lawsuit represents one in a string of similar cases initiated and litigated by [p]laintiffs in propria persona Kevin Jen-Kang Yang . . . and his wife Lee Yang . . . against Kevin Yang’s former employer, Union Bank of California . . . .”
The Yangs claim that this was false because this is the first and only lawsuit that Mrs. Yang — as opposed to Mr. Yang — had ever brought against the Bank. However, the statement most reasonably seems to mean that this is the third lawsuit brought by either Mr. or Mrs. Yang against the Bank. As so construed, it is not false. Finally, and again alternatively, the trial court could reasonably conclude that the asserted falsity was trivial and immaterial.
b. Statement regarding the basis of Mrs. Yang’s claims.
In the same memorandum of points and authorities, defendants also stated: “ . . . Lee Yang has named Kevin Yang’s former supervisor . . ., Vincent Tabata . . ., as defendant in her claim for defamation based upon the contents of one inter-office memorandum authored by Tabata.”
The Yangs claim that this is false because Mrs. Yang’s defamation claim was based not only on the Tabata memo, but also on the Bank’s statement of position. However, the only allegedly defamatory statement in the statement of position merely republished one of the four allegedly defamatory statements in the Tabata memo. Indeed, the Yangs themselves alleged that the Tabata memo was the source of the allegedly defamatory statement in the statement of position. Thus, it was not false to say that the Yangs sued Tabata “based upon the contents” of the Tabata memo.
And finally, once again, the trial court could reasonably find that the asserted falsity was trivial and immaterial.
We therefore conclude that the trial court did not err by denying the motion for sanctions.
III
DISPOSITION
The judgment is affirmed. Defendants are entitled to recover costs on appeal against the Yangs.
We concur: HOLLENHORST Acting P.J., GAUT J.