Judge: John J. Kralik, Case: 20BBCV00444, Date: 2023-03-17 Tentative Ruling


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Case Number: 20BBCV00444    Hearing Date: March 17, 2023    Dept: NCB

 

 

Superior Court of California

County of Los Angeles

North Central District

Department B

 

 

robin kim, as sole trustee of the MCINTOSH TRUST, a revocable living trust,

                        Plaintiff,

            v.

 

yonatan rabin, et al.,

 

                        Defendants.

 

 

  Case No.:  20BBCV00444

 

  Hearing Date:  March 17, 2023 (cont. from January 27, 2023)

 

 [TENTATIVE] order RE:

motion for summary judgment or, in the alternative, for summary adjudication of issues

 

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 Development & Construction, Inc. (“SDC”).[1]  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 SDC’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 SDC’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.) 

The matter initially came for hearing on January 27, 2023.  The Court made its final continuance on the hearing to March 17, 2023, in order to provide Plaintiff sufficient time to depose Joseph Bernstein.  The Court ordered Plaintiff to file and serve amended opposition papers by March 3, 2023 and Defendants to file and serve an amended reply by March 10, 2023. 

C.     Motion on Calendar

            On September 28, 2022, Defendants Yonatan Rabin, Liat Rabin, and SDC 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.

            On March 3 and 6, 2023, Plaintiff filed amended opposition papers. 

            On March 9 and 10, 2023, Defendants filed amended reply papers. 

LEGAL STANDARD

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) 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.  To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

CCP § 437c is a complicated statute and there is little flexibility in the procedural imperatives of the section and, as a result, section 437c is unforgiving.  (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 949-950.)  A failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.  (Id.)  The success or failure of the motion must be determined by application of the required step-by-step evaluation of the moving and opposing papers.  (Id.)  Because CCP § 437c is a complicated statute and it seeks a drastic remedy, the moving party is held to strict compliance with the procedural requisites.  (Id.)

DISCUSSION

A.    Moving Papers and Separate Statement

CCP § 473c(b)(1) states: “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken. The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.”

CRC Rule 3.1350(d) states:

(d) Separate statement in support of motion

(1) The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

(A) Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

(B) Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.

(2) The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.

(CRC Rule 3.1350(d).)  “This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.  (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [superseded by statute on another ground].)

The Court has reviewed the parties’ initial and amended moving, opposition, and reply papers.  Defendants’ separate statement only includes “material facts” claiming that Plaintiff lacks facts to support the elements of its claims.  While this in itself is not inappropriate in making a no evidence motion, Defendants attempt to provide the basic facts in its memorandum of points and authorities by citing to the declarations of Mr. Rabin and Mr. Bernstein.  However, these facts were not cited in the separate statement as separate material facts and will thus be regarded. 

The Court notes that Mr. Rabin and Mr. Bernstein’s declarations are cited in the separate statement as evidentiary support of Fact Nos. 45-47 in support of the Motion for Summary Judgment only as “Undisputed Facts Demonstrating that No Liability Exists,” but were not specifically directed to any cause of action.  (The Court notes that these facts were not cited again nor incorporated in the separate statement for any of the Issues in support of the Motion for Summary Adjudication).  Facts 45-47 state: (45) Sapphire did everything it was obligated to do under the Agreements with Mr. Kim; (46-1) Sapphire was experience and capable of doing the tasks it undertook in the Agreements; (46-2) Liat Rabin did nothing to harm Mr. Kim and Liat did not fail to do anything she was obligated to do that harmed Mr. Kim; and (47) Sapphire accounted for all money sent to it by Mr. Kim.  (Def.’s Fact 45-47 in support of MSJ [citing generally to Y. Rabin Decl., ¶¶13-22 and Bernstein Decl., ¶¶8-15].)[2]  However, a review of these declarations shows that the statements made by Mr. Rabin and Mr. Bernstein are conclusory and have not been supported by evidence.  For example, while they state that SDC did everything it was supposed to do and that SDC accounted for all monies, these are general conclusory statement without any factual or documentary support (i.e., no records regarding what work was performed or what funds were accounted for are provided despite their statements that meticulous records were kept).  Mr. Rabin states in one paragraph that Mrs. Rabin was a real estate broker who provided limited design options to the Kims and provided the Kims her internal checking list for sale, but no declaration by Mrs. Rabin regarding her interaction with the Kims (or lack thereof) is provided.  Even if the Court were to consider these declarations, they amount to conclusory declarations without evidentiary support.

Finally, courts have recognized two ways in which a defendant may demonstrate that one or more elements of the plaintiff’s cause of action cannot be established under CCP §437c(p)(2) and (o)(1): (1) by “positive refutation” and (2) by “evidentiary negation.”  (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1339-40.)  Positive refutation is where the defendant presents evidence that, in the absence of conflicting evidence from the plaintiff, precludes a reasonable trier of fact from finding a fact necessary to the plaintiff’s cause of action.  (Id. at 1339.)  “In other words, the defendant comes forward with evidence concerning the actual events at issue, and establishing a version of those events that is incompatible with the plaintiff's claims.”  (Id.)  Alternatively, evidentiary negation is where the defendant shows by competent proofs (typically derived from discovery) that the plaintiff lacks the evidence to prove a necessary fact.  (Id. at 1339-40.)  The defendant need not affirmatively prove anything about what actually occurred and it is enough to show there is insufficient evidence of what occurred, or insufficient evidence favorable to the plaintiff, to establish a necessary element of the cause of action.  (Id. at 1340.)

As stated above, it is technically not improper for Defendants to bring a motion for summary judgment/adjudication as a no evidence motion where Defendants need not affirmatively prove anything.  However, their burden would be to show that there is insufficient evidence of what occurred, or insufficient evidence favorable to Plaintiff, to establish a necessary element of the cause of action.  Defendants have attempted to do this by way of their separate statement papers by citing to Plaintiff’s discovery responses and the Court’s orders regarding issue and evidence sanctions.

However, the Court declines to read the scope of its orders on the issue and evidence sanctions as narrowly as Defendants.  The Court’s issue and evidence sanctions were limited as follows: (1) with respect to the FROG and SROG requests, Plaintiff would be prevented from belatedly producing documents/witnesses that should have been identified and/or produced and had not been identified/produced by the time of the April 22, 2022 hearing; and (2) with respect to the SROGs, Plaintiff cannot present arguments regarding facts that should have been disclosed in response to the SROGs.  With the moving papers, Defendants provide over a thousand pages of evidence, most of which include the 5 sets of supplemental responses that Plaintiff provided in response to the discovery requests.  In their separate statement, Defendants essentially cite only to the latest iteration of Plaintiff’s discovery responses.  However, the Court declines to read only the latest version of the discovery responses, but instead has considered the responses from all the discovery responses together. 

For example, SROG No. 1 asks Plaintiff to state all facts that support his allegation that in the complaint that “Based on false representations they had the skill, experience and ability to perform the Project, [the Trust] engaged Yonatan Rabin, Liat Rabin, Joseph Bernstein and Sapphire Construction & Development, Inc. to handle all aspects of the Project….”  In the fourth supplemental response to SROG No. 1, Plaintiff provides a long narrative of the facts that he believes support this allegation, including dates of events, facts regarding events, and identification of documents.  In the fifth supplemental response to SROG No. 1, Plaintiff’s response is incredibly brief.  However, these supplemental responses are referred to as “supplemental”—the Court does not read these fifth supplemental responses in isolation such that they would supplant and supersede all prior discovery responses.  While there have been issues with Plaintiff’s discovery responses in the past, those prior discovery responses would not be fully disregarded solely on that basis (unless they were somehow later proven to be untrue or fabricated discovery responses).

Thus, the Court declines to rely solely on the last iteration of Plaintiff’s discovery responses as cited in Defendants’ separate statement.  Further, while not all of Plaintiff’s responses are ideal and some responses amount to vague and conclusory statements, they are not all technically “factually devoid” such that Defendants’ motion would necessarily succeed as a no evidence motion, or that evidence and issue sanctions would apply to exclude Plaintiff’s evidence or arguments.

Although there are some obvious issues with Plaintiff’s case, the Court finds that entering summary judgment or, alternatively, summary adjudication in this action at this time based on the moving papers is not appropriate as Defendants’ motion is not procedurally compliant. 

B.     The motion as to Liat Rabin and Yonatan Rabin

According to CRC Rule 3.1350(b): “If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.”  (CRC Rule 3.1350(b).) 

On a separate note, Defendants argue in reply that the motion should at least be granted on behalf of Yonatan Rabin and Liat Rabin (Mr. Rabin’s wife).  However, the notice of motion did not specifically provide that each Defendant was moving separately for summary judgment and/or summary adjudication.  In fact, the notice of motion does not specifically state upon what grounds and issues Defendants are moving for summary adjudication and, therefore, have not complied with Rule 3.1350(b).  Further, the separate statement does not include material facts with supporting evidence to show that each cause of action in this action lack merit or should be dismissed in their favor.  As this was not provided in the notice, the Court declines to grant the motion in the individual defendants’ favor.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment and, alternatively, for summary adjudication is denied. 

Defendants shall give notice of this order.

 

    

 

 



[1] The caption of the complaint names Defendant Sapphire Development & Construction, Inc., but also refers to this company as Sapphire Construction & Development, Inc.  The Court will hereinafter refer to this defendant as “Sapphire Development & Construction, Inc.” (or SDC) as this is how Defendants refer to SDC in their own papers. 

[2] Defendants rely on these declaration statements in the motion paper’s memorandum of points and authorities to generally argue that Plaintiff’s case lacks merit. The motion does not address each of the 6 causes of action separately, except in the separate statement. Defendants only address the causes of action substantively in their amended reply brief.