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.