Filed 2/27/20 Ieng v. JPMorgan Chase Bank, N.A. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

MARGARET IENG,

Plaintiff and Appellant,

v.

JPMORGAN CHASE BANK, N.A.,

Defendant and Respondent.

E070505

(Super.Ct.No. CIVDS1104528)

OPINION

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez, Judge. Affirmed.

Margaret Ieng, Plaintiff and Appellant in pro. per.

Bryan Cave Leighton Paisner, Glenn J. Plattner, Aileen M. Hunter, and Kristin S. Webb for Defendant and Respondent.

Margaret Ieng filed this action against JPMorgan Chase Bank, N.A. (Chase), EMC Mortgage Corporation (EMC), and others, essentially alleging that EMC wrongfully foreclosed on her house and that Chase was liable as the successor in interest to EMC.

Chase filed a motion for summary judgment. Ieng — who was in propria persona at the time — filed a memorandum of points and authorities in opposition, but she did not file any declarations and she did not file a separate statement. The trial court granted the motion on multiple grounds. Thus, it entered summary judgment against Ieng and in favor of Chase.

Ieng then obtained counsel, who filed a motion to set aside the judgment. Belatedly, it included a declaration by Ieng and a separate statement; it argued that there were triable issues of fact. The trial court denied the motion.

Ieng — now in propria persona again — appeals. She contends that the trial court erred by:

1. Granting summary judgment on the grounds that:

a. Ieng lacked standing because her family trust was the real party in interest.

b. Chase did not contractually assume EMC’s liabilities.

c. Ieng’s complaint was barred by the statute of limitations.

d. Ieng was in default on the underlying loan and on the subsequent forbearance agreements.

2. Failing to substitute (or to hold Chase liable in lieu of) a related entity that Ieng intended to sue.

3. Dismissing EMC under the five-year rule.

4. Denying Ieng’s motion to set aside.

Some of the grounds of Chase’s motion for summary judgment were flimsy, at best. We will discuss them briefly, if only to explain why we are not relying on them. However, the motion for summary judgment did show that Ieng was in default; in her opposition, she did not introduce any contrary evidence. She introduced contrary evidence belatedly, in connection with her motion to set aside, but that did not require the trial court to set aside the judgment. Her remaining arguments are groundless.

I

FACTUAL BACKGROUND

The following facts are taken from the evidence that Chase introduced in connection with its motion for summary judgment, including matters of which the trial court took judicial notice. Ieng did not object to any of Chase’s evidence. She also did not introduce any evidence in opposition.

In July 2005, Ieng took out a $653,650 home loan from Long Beach Mortgage Company. The loan was originally serviced by Washington Mutual Bank (WaMu).

On May 16, 2006, Ieng conveyed the property to herself as trustee of the “Family Trust of Margaret T.D. Ieng.”

In June 2006, the servicing rights to the loan were transferred from WaMu to EMC.

As of June 2006, and continuing until at least February 2007, Ieng was in default on the loan. Accordingly, in November 2006, EMC recorded a notice of default, and in February 2007, it recorded a notice of trustee’s sale.

Also in February 2007, EMC and Ieng entered into a forbearance agreement. Ieng, however, failed to make payments required by the forbearance agreement.

In May 2007, EMC and Ieng entered into a second forbearance agreement. Once again, Ieng failed to make payments required by the second forbearance agreement.

On June 1, 2007, EMC foreclosed and bought in the property.

At some point, JPMorgan Chase & Co. acquired the Bear Stearns Companies Inc. Thus, it also acquired EMC, which was a subsidiary of the Bear Stearns Companies Inc.

On April 1, 2011, Chase acquired EMC’s servicing rights. Under the agreement between Chase and EMC, Chase expressly did not acquire EMC’s liabilities relating to any servicing activity occurring prior to April 1, 2011.

II

PROCEDURAL BACKGROUND

Ieng filed this action in March 2011. She was represented by counsel from March 2011 through July 2011 and from March 2016 through December 2016. Otherwise, at all times up until entry of judgment, she was in propria persona.

Initially, EMC was the only named defendant. In 2013, in Ieng’s first amended complaint, she added other defendants, including Chase.

In June 2016, the trial court dismissed EMC with prejudice, based on Ieng’s failure to bring the case to trial within five years.

In December 2016, Ieng filed her fourth amended complaint.

The first cause of action, for breach of contract, alleged that EMC breached the May forbearance agreement by foreclosing.

The second cause of action, for unfair competition (Bus. & Prof. Code, § 17200), alleged that EMC’s foreclosure in breach of the May forbearance agreement, as well as its “negligence and malice in processing and negotiating Plaintiff’s request for a loan workout, [its] intentional delays in processing such documentation, [its] ‘dual-tracking’ of Plaintiff’s Repayment Agreement and foreclosure proceedings, breach of the Repayment Agreement, false promises made to Plaintiff, intentionally overstating the amount of the debt at the trustee’s sale, failing to accurately calculate the amount due on the Subject Loan’s [sic], and inappropriately adding additional amounts due to the Subject Loan . . . were unfair business acts or practices . . . .”

Finally, the complaint alleged that on April 1, 2011, Chase merged with EMC and thus became liable, as successor to EMC, for all of EMC’s acts and omissions.

In October 2017, Chase filed a motion for summary judgment. It argued that:

1. Ieng’s family trust, rather than Ieng, was the real party in interest.

2. The misconduct alleged was committed by EMC, not by Chase, and Chase had not assumed any of EMC’s liabilities.

3. The complaint was barred by the statute of limitations.

4. Ieng had breached the loan and the forbearance agreements.

Ieng did not file a timely opposition. She did file a belated opposition, just one day before the hearing. However, it did not include any evidence. It also did not include the required separate statement.

At the hearing on the motion, Ieng did not request a continuance. The trial court did consider her late-filed opposition. After hearing argument, it granted the motion, on all of the grounds that Chase had asserted.

Accordingly, on February 16, 2018, it entered judgment against Ieng and in favor of Chase. On March 7, 2018, Chase served notice of entry of judgment.

On March 16, 2018, Ieng — now represented by counsel — filed a motion to set aside the judgment, along with a belated declaration by Ieng and a belated separate statement. On May 1, 2018, after hearing argument, the trial court denied the motion. On May 15, 2018, Ieng filed a notice of appeal.

III

THE TIMELINESS OF THE APPEAL

Preliminarily, on our own motion, we questioned whether Ieng’s notice of appeal was timely.

Ordinarily, a notice of appeal must be filed within 60 days after the service of a notice of entry of the judgment. (Cal. Rules of Court, rule 8.104(a)(1)(B).) Chase served a notice of entry on March 7, 2018. Ieng did not file a notice of appeal until May 15, 2018 — 69 days later.

However, there are several exceptions to this rule. (Cal. Rules of Court, rule 8.108.) Among other things, if a party serves and files either a valid motion to vacate the judgment or a valid notice of intention to move for a new trial, the time to appeal is extended to the earliest of several alternative deadlines; one of these is 30 days after service of a notice of entry of the order denying the motion. (Cal. Rules of Court, rule 8.108(b)(1), (c).) By contrast, a motion for reconsideration of a final judgment does not extend the time to appeal. (Passavanti v. Williams (1990) 225 Cal.App.3d 1602, 1605.)

Significantly, both a motion to vacate and a notice of intention to file a motion for new trial extend the time to appeal only if they are valid.

With respect to a motion to vacate, “[t]his means the motion must have been based on some recognized ground for vacation — i.e., it must have been a statutory motion under [Code of Civil Procedure] § 473 or § 663, or a nonstatutory motion based on extrinsic fraud or mistake.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2019) ¶ 3:82, p. 3-41.)

With respect to a motion for new trial, this means “the motion must have fully complied with the procedural requirements of [Code of Civil Procedure] § 659 — including the requirements regarding timeliness, service and a statement of grounds for the motion. [Citations.]” (Eisenberg et al., supra, ¶ 3:70, p. 3-37.)

Ieng filed a motion to set aside the judgment. It did not cite any statutory basis at all. It also did not argue extrinsic fraud or mistake. It simply argued that the trial court had erred by granting summary judgment, particularly in light of Ieng’s belatedly filed declaration. Thus — as Chase pointed out at the time — it appeared to be a motion for reconsideration. After entry of judgment, however, a trial court loses jurisdiction to grant reconsideration of the judgment. (Passavanti v. Williams, supra, 225 Cal.App.3d at p. 1606.)

At the hearing on the motion, Ieng’s then-counsel suggested, “I think it could be designated more like a new trial motion.” Alternatively, he suggested that it was “more like a 473 motion . . . . I think it’s excusable neglect . . . .”

We do not believe the motion could be deemed a motion to vacate under Code of Civil Procedure section 473. It did not assert any grounds that would be relevant under that section — i.e., mistake, inadvertence, surprise, or excusable neglect.

However, the motion to vacate may be deemed a motion for new trial. Although it is counter-intuitive, “[a] motion for a new trial is appropriate following an order granting summary judgment. [Citations.] This is so, even though, strictly speaking, ‘summary judgment . . . is a determination that there shall be no trial at all.’ [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858.)

As such, the motion was timely. A notice of intention to move for a new trial must be filed within 15 days after service of a notice of entry of judgment. (Code Civ. Proc., § 659, subd. (a)(2).) Here, notice of entry of judgment was served on March 7, 2018; Ieng filed her motion on March 16, 2018.

Admittedly, Ieng did not serve a notice of intention to file the motion before filing the motion itself. However, this is not fatal. (See Shapiro v. Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 726-728 [trial court could properly treat motions to correct the verdict and for partial JNOV as motions for new trial]; Finnie v. District No. 1 – Pacific Coast Dist. etc. Assn. (1992) 9 Cal.App.4th 1311, 1316 [trial court could properly treat motion to vacate as motion for new trial].) The motion, when viewed as a notice of intention, was timely, and it specified the grounds for the motion.

Finally, the grounds asserted were within the scope of a motion for new trial. The grounds for a motion for new trial include “[e]rror in law” (Code Civ. Proc., § 657, subd. 7), which is what Ieng was arguing.

Significantly, Ieng’s counsel asked to recharacterize the motion before the trial court ruled on it. Thus, this is not a case in which a party asks us to recharacterize a motion for the first time on appeal. (Cf. Passavanti v. Williams, supra, 225 Cal.App.3d at pp. 1608-1609 [appellate court should not recharacterize a motion, just to save appeal from dismissal, when trial court did not do so].)

Moreover, Chase did not object to the recharacterization, nor did it claim that recharacterization would be prejudicial. To the contrary, its counsel said, “It doesn’t matter what you label this motion as; a motion for new trial, a motion for reconsideration, a motion to set aside the judgment, under every standard [Ieng] just hasn’t met her burden.” Chase has fully briefed this appeal without arguing that it was untimely.

In sum, then, because Ieng’s post-trial motion was, in substance, a motion for new trial, it extended the time to appeal. Ieng filed her notice of appeal just 14 days after the motion was denied, which was timely under California Rules of Court, rule 8.108(b)(1).

IV

GROUNDS FOR GRANTING SUMMARY JUDGMENT

A. Standard of Review.

“A trial court may only grant a motion for summary judgment if no triable issues of material fact appear and the moving party is entitled to judgment as a matter of law. [Citations.]” (Schachter v. Citigroup, Inc. (2009) 47 Cal.4th 610, 618.)

“[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., supra, 25 Cal.4th at p. 849.)

“In ruling on the motion, the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.)

“Whether the trial court erred by granting [a] motion for summary judgment is a question of law we review de novo. [Citation.]” (Samara v. Matar (2018) 5 Cal.5th 322, 338.)

B. Ieng’s Family Trust as Real Party in Interest.

One of the grounds on which the trial court granted summary judgment was that Ieng’s family trust was the real party in interest. Ieng contends that this was error because she was not required to allege that she was acting on behalf of the trust.

“As a general rule, the trustee is the real party in interest with standing to sue and defend on the trust’s behalf. [Citations.] Conversely, a trust beneficiary cannot sue in the name of the trust. [Citations.]” (Estate of Bowles (2008) 169 Cal.App.4th 684, 691.)

Arguably, Ieng was suing on her own behalf, not on behalf of the trust. She signed the loan and the forbearance agreements, and she was obligated to make payments on them. And she was subjected to the alleged acts of unfair competition. If so, it would seem that she was the real party in interest, regardless of who owned the property.

Even if not, however, the evidence showed that Ieng was the trustee of the trust. She did not have to allege that she was acting in that capacity. “‘ . . . [I]t is unnecessary for the trustee in the pleadings or other proceedings to describe himself as trustee. He can proceed in the action as though he were the owner of the claim which he is enforcing. If he does describe himself as trustee the description is treated as surplusage. . . .’” (McKoin v. Rosefelt (1944) 66 Cal.App.2d 757, 769.)

C. Chase’s Liability as Successor of EMC.

Another ground on which the trial court granted summary judgment was that Chase did not contractually assume EMC’s liabilities. Ieng contends that this was error, because the transaction supposedly left EMC an “empty shell,” with liabilities but no assets; hence, Chase became liable for EMC’s acts and omissions as a matter of law, without regard to the parties’ agreement.

“‘The general rule of successor nonliability provides that where a corporation purchases, or otherwise acquires by transfer, the assets of another corporation, the acquiring corporation does not assume the selling corporation’s debts and liabilities. [Citation.]’ [Citation.] However, [there are] four exceptions to this rule: When ‘(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a consolidation or merger of the two corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the seller’s debts. [Citations.]’ [Citation.]” (Daniell v. Riverside Partners I, L.P. (2012) 206 Cal.App.4th 1292, 1300.)

Here, the operative complaint alleged that “on or around April 1, 2011, Defendant Chase merged with Defendant EMC or effected a ‘de facto merger.’”

Chase introduced sufficient evidence to disprove a de jure merger; it showed that the transaction was an asset transfer. However, Chase did not disprove a de facto merger. “[A] de facto merger . . . occur[s] . . . where the assets of one corporation are transferred without consideration which can be made available to satisfy claims or ‘where the consideration consists wholly of shares of the purchaser’s stock which are promptly distributed to the seller’s shareholders in conjunction with the seller’s liquidation. [Citation.]’ [Citation.]” (Marks v. Minnesota Mining & Manufacturing Co. (1986) 187 Cal.App.3d 1429, 1435, fn. omitted; see also Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28-29.) Chase failed to introduce any evidence of the consideration — if any — that it paid EMC.

Instead, Chase introduced evidence that there was no express or implied assumption agreement. This was misdirection, as Ieng had alleged a de facto merger, not an assumption agreement. It appears to have succeeded in distracting the trial court from the issue that Ieng had actually alleged.

In sum, then, Chase did not carry its burden of producing evidence to disprove a de facto merger. Accordingly, Ieng was not required to introduce any affirmative evidence of a de facto merger.

D. Statute of Limitations.

Another ground on which the trial court granted summary judgment was that Ieng’s complaint was barred by the statute of limitations. Ieng contends that this was error.

The limitations period for breach of a written contract and for unfair competition is the same — four years. (Code Civ. Proc., § 337, subd. (a); Bus. & Prof. Code, § 17208.)

As Ieng concedes, both of her causes of action accrued not later than June 1, 2007, the date of the foreclosure sale. On March 28, 2011, she filed this action, naming EMC as the sole defendant. Chase became EMC’s successor in interest (at least in some respect) on April 1, 2011.

On February 7, 2013, Ieng amended her complaint so as to add Chase as a defendant. She did not move to substitute Chase for EMC (see Code Civ. Proc., § 368.5); EMC remained a named defendant. She also did not amend to substitute Chase for a “Doe” defendant. (See Code Civ. Proc., § 474.) In sum, then, Ieng did not add Chase as a defendant until more than six years after her causes of action accrued.

Nevertheless, Ieng’s action as against Chase was timely because she was alleging that Chase was EMC’s successor. “[I]n general, the statute of limitations provides no defense to the successor of a party timely sued. [Citations.] Thus where an individual defendant dies or becomes incompetent, title to property at issue is transferred, or a corporate defendant is merged or dissolved, the substitution of a representative or successor in place of the named defendant may not be challenged on the ground that the statute of limitations has expired as to the representative or successor. [Citations.]” (Hutnick v. U.S. Fidelity & Guaranty Co. (1988) 47 Cal.3d 456, 467; accord, Dougherty v. California Kettleman Oil Royalties (1937) 9 Cal.2d 58, 85; Hibernia Savings & Loan Soc. v. Wackenreuder (1893) 99 Cal. 503, 509-511.) This is true even if the successor is added by amendment rather than by substitution. (Hutnick v. U.S. Fidelity & Guaranty Co., supra, 47 Cal.3d at p. 467.)

On reflection, it should be obvious that this is the rule. Otherwise, a lawsuit that has been timely filed against an appropriate defendant could be thwarted if that defendant transfers its interest after the statute of limitations has run.

E. Ieng’s Default.

The final ground on which the trial court granted summary judgment was that Ieng was in default on the loan and on the forbearance agreements. Ieng contends that this was error because there was a triable issue of fact as to whether she was in default. She also contends that the trial court should have granted her motion to set aside the judgment based on the evidence that she was not in default.

In its motion for summary judgment, Chase introduced evidence that Ieng was in default under both the loan and the forbearance agreements. Ieng does not dispute this. Ieng introduced no contrary evidence in opposition to the motion for summary judgment. Accordingly, the trial court properly found that there was no triable issue of fact on this point.

Ieng did introduce evidence that she was not in default, but only belatedly, in connection with her motion to set aside the judgment. Even assuming this evidence raised a triable issue of fact, the trial court was not required to grant the motion to set aside. It denied the motion partly because “[t]he motion does not include an explanation as to why the papers were filed more than two months after the hearing. . . . The court will note that the declaration addresses the merits of the case . . . But it also fails entirely to discuss the procedural posture [of] or justification for this motion.”

Ieng does not explain why this was error. It was not. Viewing the motion as a motion for new trial (see part III, ante), Ieng failed to show any accident or surprise, newly discovered evidence, or error of law. (See Code Civ. Proc., § 657, subds. 3, 4, & 7.) Even if we view it as a motion under Code of Civil Procedure section 473, subdivision (b), Ieng failed to show any mistake, inadvertence, surprise, or excusable neglect.

V

CHASE’S SUPPOSEDLY MISLEADING ASSERTION

THAT IT WAS THE PROPER DEFENDANT

Ieng contends that she intended to sue JPMorgan Chase & Co. (Co.), not Chase, and that Chase misrepresented itself as the proper defendant.

A. Additional Factual and Procedural Background.

Ieng’s first amended complaint named “J.P. Morgan Chase” as a defendant. Chase filed an answer to the complaint. Although that answer is not in the record, apparently Chase represented that it was the party erroneously sued as J.P. Morgan Chase.

Ieng did not dispute this. Thus, her fourth amended complaint named “J.P. Morgan Chase . . . , also known as [Chase].”

B. Discussion.

Ieng now claims that it was actually Co. — not Chase — that acquired EMC, and thus Co. is the party that she intended to sue. She accuses Chase of intentionally misleading her, to prevent her from naming the proper defendant and to enable Chase to argue later that it was not the proper defendant. She concludes: “The [t]rial [c]ourt should have just corrected the name at the time of the summary judgment[] and not dismissed the case.”

It is not clear whether Ieng is saying (1) the trial court should have allowed her to substitute Co. for Chase, or (2) the trial court should have held Chase liable as if it were Co.

If Ieng is seeking to substitute Co., she forfeited this contention by failing to raise it below. She did assert below that, by answering the complaint, Chase “deprived [her] of having [Co.] . . . charged with successor liability.” However, she did not ask the trial court to “correct[] the name” or to grant any other relevant relief. “It is axiomatic that arguments not raised in the trial court are forfeited on appeal. [Citations.]” (Kern County Dept. of Child Support Services v. Camacho (2012) 209 Cal.App.4th 1028, 1038.)

If Ieng is seeking to hold Chase liable in place of Co., it would seem to be on an estoppel theory — that Chase misrepresented itself as Co., and that Ieng relied on this misrepresentation. (See generally Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 510.) Ieng, however, did not plead estoppel and did not seek leave to amend to plead it. “The rule is well established in this state that an estoppel, to be available, must be specially pleaded.” (Holzer v. Read (1932) 216 Cal. 119, 124.) Hence, in moving for summary judgment, Chase was not required to disprove estoppel. “‘[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 290, italics omitted; accord, Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)

We also note that Ieng has not asserted a prima facie case of estoppel. First, estoppel requires justifiable reliance. (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at p. 510.) Ieng has not explained how her reliance was justifiable. She chose to file a complaint against “J.P. Morgan Chase.” (Capitalization altered.) Before doing so, it behooved her to do some investigation into the identity of the proper defendant. And, at some time between 2013 and 2018, it behooved her to conduct some discovery on this issue.

Second, estoppel requires detrimental reliance. (Downey Venture v. LMI Ins. Co., supra, 66 Cal.App.4th at p. 510.) Ieng merely claims that Co. acquired EMC as its wholly owned subsidiary. In its motion for summary judgment, Chase admitted this. However, a parent corporation is not automatically liable for the acts or omissions of a subsidiary; something more must be shown, such as an agency or alter ego relationship. (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31 Cal.App.5th 840, 861-863; Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th 283, 305.) Hence, Ieng has not shown that she was prevented from asserting a meritorious claim against Co.

VI

THE DISMISSAL OF EMC UNDER THE FIVE-YEAR RULE

In her opening brief, Ieng contends that the trial court erred by dismissing EMC under the five-year rule. (Code Civ. Proc., § 583.310.)

We lack jurisdiction to decide this issue. The judgment dismissing EMC was entered in June 2016. At Chase’s request, we have taken judicial notice that Ieng did appeal from the judgment dismissing EMC, but we dismissed that appeal based on failure to respond to our orders. “‘In general, an appealable order that is not appealed becomes final and binding and may not subsequently be attacked on an appeal from a later appealable order or judgment.’ [Citation.]” (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1138.)

Finally — as if the foregoing were not enough — EMC is not a party to this appeal. We cannot reverse a judgment in its favor when it has not had notice and an opportunity to be heard.

VII

IENG’S FAILURE TO FILE A SEPARATE STATEMENT

Ieng contends that the trial court erred by denying her motion to set aside, because it included a separate statement.

This argument is captioned, “The trial court should not have granted summary judgment based on appellant having failed to file a separate statement of disputed facts.” The substance of the argument, however, is that because the trial court (supposedly) granted the motion for summary judgment based on Ieng’s failure to file a separate statement, and because Ieng filed a separate statement as part of her motion to set aside, the trial court should have granted the motion to set aside.

The trial court, however, did not grant the motion for summary judgment based on Ieng’s failure to file a separate statement. It could have done so (Code Civ. Proc., § 437c, subd. (b)(1)); instead, however, it exercised its discretion in favor of deciding the motion on the merits. And because it decided the motion on the merits, the fact that Ieng belatedly submitted a separate statement with her motion to set aside did not require the trial court to grant the latter motion.

VIII

DISPOSITION

The judgment is affirmed. Chase is awarded costs on appeal against Ieng.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

McKINSTER

J.

SLOUGH

J.