Judge: John J. Kralik, Case: 20BBCV00444, Date: 2023-01-27 Tentative Ruling

Case Number: 20BBCV00444    Hearing Date: January 27, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Robin Kim (“Plaintiff”), as sole trustee of the McIntosh Trust (“Trust” or “MT”), commenced this action against Defendants Yonatan Rabin and Liat Rabin and the company they owned and operated, Defendant Sapphire Construction & Development, Inc. (“SCD”).  Plaintiff alleges that the Trust owns real property located at 926 Hilldale Ave., West Hollywood, CA 90069.  In 2016, the Trust, through its trustor Betty Jo Kim McIntosh and trustee Plaintiff, pursued the prospect of developing the property into residences for purposes of maximizing its value and ultimately selling the residences.  The Trust engaged the Rabins, SCD, and Defendant Joseph Bernstein to handle all aspects of the project.  Plaintiff alleges that Defendants preyed on the Trust’s confidence in them and they misrepresented their qualifications to perform the work.   

The complaint, filed July 17, 2020, alleges causes of action for: (1) intentional misrepresentation/fraudulent inducement; (2) breach of fiduciary duty; (3) negligence; (4) unfair competition; (5) unjust enrichment; and (6) accounting.

B.     Relevant Background

On April 22, 2022, the Court granted in part and denied in part SCD’s motion for terminating sanctions or, in the alternative, for issue, evidence, and monetary actions in connection with the Form Interrogatories. The motion was denied in part as to the request for terminating sanctions against Plaintiff.  The motion was granted in part such that the Court imposed limited evidence and issues sanctions:

To the extent that SCD’s Form Interrogatories Nos. 2.5, 7.1-7.3, 8.7-8.8, 9.1-9.2, 12.2-12.3, 17.1, 50.1-50.3, and 50.5 fairly called for documents or witnesses that are not identified, and such documents or witnesses were not identified despite the fact that they were within Plaintiff’s knowledge or possession custody and control, such witnesses and documents cannot be offered by Plaintiff at trial.  Plaintiff will be limited by the responses (and supplemental responses) he has provided to and that were received by SCD by this hearing date. 

(4/22/22 Order at p.8.) 

The Court also denied in part SCD’s motion for terminating sanctions in connection with the Special Interrogatories, but granted in part the motion as to the request for evidence and issue sanctions, such that “Plaintiff may not produce any documents that should have been identified in the SROG Nos. 1-4 and 15-35 responses and cannot present arguments regarding facts that should have been disclosed in response to these Special Interrogatory requests.”  (4/22/22 Order at p.8.) 

C.     Motion on Calendar

            On September 28, 2022, Defendants Yonatan Rabin, Liat Rabin, and SCD filed a motion for summary judgment in this action.  In the alternative, Defendants move for summary adjudication on each cause of action alleged in the complaint.

            On January 13, 2023, Plaintiff filed opposition papers.

            On January 20, 2023, Defendants filed a reply brief.

DISCUSSION

            Defendants move for summary judgment or, alternatively, for summary adjudication on each cause of action alleged by Plaintiff in the complaint.

            In opposition, Plaintiff does not provide a responsive separate statement, but provides 75 evidentiary objections to the declarations of Joseph Bernstein and Yonatan Rabin submitted in support of the motion and 5 objections to Defendants’ separate statement. As such, currently, none of the facts stated in the separate statement are disputed.

            Instead of addressing the substantive merits of the motion, Plaintiff requests additional time pursuant to CCP § 437c(h) to complete discovery prior to filing a substantive opposition brief. Plaintiff discloses that the Court already granted a continuance on December 9, 2022 pursuant to Plaintiff’s ex parte application, but that Defendants obstructed Plaintiff’s ability to conduct discovery by refusing to make their client available for deposition before January 9, 2023. 

CCP §437c(h) states: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”  “An opposing party's declaration in support of a motion to continue the summary judgment hearing should show the following: (1) Facts establishing a likelihood that controverting evidence may exist and why the information sought is essential to opposing the motion; (2) The specific reasons why such evidence cannot be presented at the present time; (3) An estimate of the time necessary to obtain such evidence; and (4) The specific steps or procedures the opposing party intends to utilize to obtain such evidence.”  (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 [internal citations omitted].) 

            Plaintiff provides the declaration of his counsel, Solomon Gresen.  Mr. Gresen states that the facts essential to justify the opposition may exist but cannot be presented at this time, such that Plaintiff is seeking a continuance.  (Gresen Decl., ¶3.)  He states that Plaintiff is seeking to conduct the depositions of Joseph Bernstein and Yonatan Rabin, both of whom submitted declarations in support of the motion.  (Id., ¶¶4, 6.)  Mr. Gresen states that he noticed their depositions for December 29 and 30, 2022 with sufficient notice, but defense counsel informed Mr. Gresen on December 27, 2022 that both individuals were not available.  (Id., ¶¶4, 7.)  He states that defense counsel suggested January 6, 2023 at 9:00 a.m. for the deposition of Yonatan Rabin, but had not informed Mr. Gresen that he also had a court hearing at that time that would conflict with the scheduled deposition.  (Id.)  Mr. Gresen states that he scheduled the deposition for January 6, 2023, hired a court reporter, and defense counsel’s assistant confirmed receipt of the deposition link, but defense counsel did not appear to the January 6, 2023 deposition.  (Id., ¶9.)  He states that defense counsel then offered to produce Yonatan Rabin for deposition on January 9, 2023, which proceeded as scheduled.  (Id., ¶9.)  However, he states that the deposition of Mr. Bernstein is still outstanding and that Plaintiff is unable to respond to the moving papers until the deposition has gone forward.  (Id., ¶10.)  Thus, Plaintiff seeks additional 30 days to complete discovery and prepare the opposition.  (Id., ¶5.) 

            The Court has already granted an extension and continuance for Plaintiff to conduct discovery and file an opposition to this motion for summary judgment or, alternatively, for summary adjudication.  However, the deposition of Mr. Bernstein is still outstanding and Defendants have not yet produced him for his deposition. 

            The Court will allow one final continuance pursuant to CCP § 437c(h) regarding this motion so that Plaintiff can conduct the deposition of Joseph Bernstein.  Defendants should cooperate with Plaintiff to ensure that the deposition goes forward prior to the due date of the opposition. 

CONCLUSION AND ORDER

Defendants’ motion for summary judgment or, in the alternative, for summary adjudication is continued to March 17, 2023 at 8:30 a.m.  This will be the final continuance of this motion pursuant to Code of Civil Procedure, section 437c(h).

Plaintiff is ordered to file and serve amended opposition papers by March 3, 2023 by the end of the business day.  Defendants’ amended reply brief shall be filed and served by March 10, 2023 by the end of the business day. 

The parties are ordered to cooperate and find a mutually agreeable deposition date for Joseph Bernstein prior to March 3, 2023. 

Defendants shall give notice of this order.