Date: 05-08-2019

Case Style:

Case Number: B284446

Judge: Wiley, J.

Court: California Court of Appeals Second Appellate District, Division Eight on appeal from the Superior Court, County of Los Angeles

Plaintiff's Attorney: Alain V. Bonavida

Defendant's Attorney: Noel S. Cohen, and J. Alan Warfield

Description: Appellant Carolyn Cohen and her company Here We Grow,
Inc., donated about a half million dollars to a San Diego spiritual
group called Kabbalah Centre International, Inc. (“Centre”).
Later Cohen wanted her money back. The trial court ruled she
had no such right. We reverse one of the trial court’s rulings that
concerns $25,000 and affirm all the rest.
I
We summarize the factual record.
Centre is an organization whose members seek spiritual
fulfillment. Cohen alleged Centre “holds itself out to the public
as a spiritual and educational, albeit non-religious, organization
dedicated to the study of Kabbalah.”
Cohen joined Centre in San Diego in 2002. According to
Cohen, “Some members of the Kabbalah Centre -- i.e., those they
perceive to possess celebrity or personal wealth -- are given
special treatment. Such members (including [Cohen]) are
assigned personal teachers and counselors.” Counseling sessions
were “extremely intense and frequent.”
Centre designated defendants Yosef Shvili, and later his
wife Esther Shvili, as Cohen’s spiritual guides. The Shvilis told
Cohen that to receive the light and to promote her spiritual
health she should “give money until it hurts.” Cohen gave.
Cohen gave to two Centre causes. Her larger donation was
$452,000 to Centre’s Building Fund. Centre was in leased
quarters. This donation was to help it buy a building that would
be Centre’s permanent home in San Diego. Cohen’s other
donation was an added $25,000 for Centre’s “Spirituality for
Kids” program. Cohen financed her donations partly through
loans on a house.
3
Alongside other Centre members, Cohen, a real estate
agent, scouted candidate buildings for Centre’s future home. She
visited between 12 and 75 sites. She was looking at property as
late as 2011, but by 2013 Cohen concluded Centre was not truly
planning to buy a building at all and was using the supposed real
estate hunt only as a front for soliciting more donations.
Between 2003 and 2007, Cohen helped develop and manage
Centre’s “Spirituality for Kids” program. In 2007, Centre
discontinued the kids program with promises to reinstate it some
day, but Centre never did.
Cohen sued Centre, its affiliates, and several individuals on
ten causes of action. We refer to all defendants collectively as
Centre. Pre-trial motions whittled away defendants and causes
of action. The trial court kept granting Cohen leave to amend her
complaint until the fifth round of pleading. Then Centre filed a
motion for summary judgment and summary adjudication. The
trial court took supplemental briefing. After two separate oral
arguments, the court granted the motion and entered judgment
against Cohen.
Cohen appeals four orders in this series of rulings: the trial
court’s orders (1) granting summary judgment on Cohen’s claims
for breach of contract and (2) for fraud, and (3) the order
sustaining a demurrer to the breach of fiduciary duty claim in her
first amended complaint. (4) Finally, Cohen challenges the trial
court order sustaining a demurrer to the Penal Code section 496
claim in her second amended complaint. We reverse the contract
order in part and otherwise affirm.
4
II
We describe pertinent law for Cohen’s first argument,
which challenges the summary adjudication of her claim for
breach of contract.
To win summary judgment or adjudication, a defendant
must show the plaintiff cannot establish at least one element of a
cause of action. (Code Civ. Proc., § 437c, subd. (o); Aguilar v. Atl.
Richfield Co. (2001) 25 Cal.4th 826, 853.) Our review is
independent. (Id. at p. 860.)
Cohen argues Centre must satisfy a more demanding
standard under Probate Code section 16004, subdivision (c),
which she says places the burden of proof on Centre, which in
turn heightens the showing Centre must make for summary
judgment. Cohen forfeited this argument when she did not make
it to the trial court. (DiCola v. White Bros. Performance Prod.,
Inc. (2008) 158 Cal.App.4th 666, 676.)
The trial court properly granted summary adjudication
against Cohen’s contract claim concerning money Cohen donated
for Centre’s building (issue one in Centre’s motion), but erred in
adjudicating Cohen’s contract claim about the $25,000 donation
to the kids program (issue three). We treat these points in order.
A
The trial court’s summary adjudication of the building fund
contract claim was proper.
Cohen said she orally contracted that Centre would return
her building donations if it did not use her money for a building,
and Centre breached this oral contract by failing to return her
donation when it decided against buying a building. The trial
court properly granted summary adjudication because Cohen had
no valid evidence of this contract.
5
To establish this contract, Cohen sought to rely on an
invalid portion of her own declaration. This portion was invalid
because it contradicted Cohen’s own repeatedly-amended
complaint. Courts properly disregard this tactic.
The tactical details are as follows.
Even after repeated demurrers, Cohen’s pleading remained
vague about her supposed contract with Centre. During oral
argument about a demurrer on February 8, 2017, the trial court
voiced concern about Cohen’s vagueness. The court sustained
this demurrer. Cohen does not challenge this ruling. Cohen,
however, implored the trial court for leave to file a fifth version of
her complaint, promising to fix the vagueness problem. The court
asked that Cohen allege the particulars of her supposed oral
contract, especially “the date of the period when the conversations
occurred” that Cohen claimed created the oral contract. Cohen
responded: “Okay.”
On March 13, 2017 Cohen filed her newly amended
complaint. Paragraph 31 alleged Cohen entered an oral contract
about the Centre’s building fund “on or about mid-April
2004 . . . .”
Specifying this mid-April 2004 contract date was
significant because Centre already had deposed Cohen about it.
Four days after Cohen filed her amended complaint, Centre
filed a motion for summary judgment and summary adjudication
on March 17, 2017. This motion took aim at Cohen’s newly
amended complaint. Cohen opposed this motion on May 22,
2017, but with this opposition Cohen now declared the building
fund oral contract was in 2003, not mid-April 2004.
By filing a declaration that changed the date of the building
contract from 2004 to 2003, Cohen evidently hoped to avoid her
6
past deposition admission that in 2004 she had not asked Centre
to restrict its use of her donations to building construction.
Cohen came up with a new story to create a factual dispute and
to avoid summary judgment.
The tactic of changing one’s story to avoid summary
adjudication is improper. (Castillo v. Barrera (2007) 146
Cal.App.4th 1317, 1324 [defendants moving for summary
judgment are entitled to rely on allegations in the complaint,
which are judicial admissions and conclusive concessions and
which frame the disputed issues].)
The point of the summary adjudication procedure is to test
whether a full trial is necessary. The complaint is supposed to
set forth the plaintiff’s proposed case, which the defendant’s
summary adjudication motion then aims to test as a matter of
law. But if the plaintiff’s opposition moves the factual target
after the defendant has fired off its motion, this unfair tactic
defeats the utility of the procedure.
The trial court correctly summarized the matter: “I read
her declaration very carefully. And if it was her initial
statement, it might have had greater effect; but it came after her
deposition was taken where she made statements that were to
the contrary.”
The trial court correctly disregarded Cohen’s new and
contradictory version of events. That left Cohen with no evidence
to support her claim about an oral contract about her building
fund donations, which rightly failed in the trial court and now
fails on appeal. The proper adjudication of issue one in Centre’s
motion extinguished Cohen’s claim, because Cohen could not
show the existence of a contract for the return of her building
fund donations.
7
B
The trial court erred in summarily adjudicating the kids
program contract claim.
Issue three in Centre’s motion attacked this claim. The
trial court awarded summary adjudication in Centre’s favor, but
this was error because Cohen legitimately raised a material fact
issue on this point.
In her deposition, Cohen testified she donated to the kids
program between 2003 and 2007 and personally managed the
program between 2004 to 2007. In her operative pleading, Cohen
alleged she entered “another” oral contract, different from the
building fund contract. This contract was that Centre would
return any of Cohen’s $25,000 donation for the Spirituality For
Kids program that Centre did not use for that specific purpose.
The date on this different contract was 2003. This 2003 date did
not conflict with any of Cohen’s previous allegations or
statements. Cohen’s later declaration in opposition to Centre’s
motion also was consistent with her pleading and her deposition.
Cohen’s opposition identified and supported a genuine
dispute of material fact: Cohen swore there was an oral contract
for the kids program donation; Centre’s witnesses swore there
was no such contract. This factual clash meant it was error to
grant Centre’s motion to adjudicate issue three.
Centre had an alternate theory involving the statute of
limitations. But Cohen correctly notes she discovered a crucial
fact only in 2013, which was the year she sued. There was no
delay problem.
We thus remand Cohen’s contract claim about her $25,000
kids program donation to the trial court for such further
8
proceedings as the trial court may deem appropriate, including
possible motion practice.
III
The trial court properly granted summary adjudication on
Cohen’s fraud claims, which were issues five (building fund
donations) and seven (Spirituality for Kids donations) in Centre’s
motion.
A
Fraud has five elements: a misrepresentation; the
knowledge the misrepresentation is false; the intent to induce
another's reliance on the misrepresentation; justifiable reliance;
and damages. (Conroy v. Regents of Univ. of California (2009) 45
Cal.4th 1244, 1255.)
B
Cohen’s fraud claim concerning the building fund lacked
proof on the second element of fraud: there was no evidence
Centre made a misrepresentation knowing its statement was
false. The classical name for this blameworthy mental state is
scienter. Centre’s motion for summary adjudication properly
shifted the burden to Cohen, who failed to create a dispute about
scienter. The trial court properly adjudicated issue five in
Centre’s favor.
1
Centre’s proof supporting summary judgment on the
building fund fraud claim came from two sources.
a
Centre’s first source of proof for the building fund fraud
claim is declarations Esther and Yosef Shvili signed on behalf of
Centre. Their declarations established two key factual
assertions: (1) each originally hoped increased future Centre
9
membership would justify moving to a permanent location, but
(2) by 2013 it became clear there was insufficient interest in
Centre to warrant the move.
Cohen attacks the Shvilis’s declarations for being brief.
Brevity is the soul of wit. These declarations said what was
necessary.
Cohen critiques the declarations for being “virtually
identical.” The similarity does corrode credibility. But the trial
court impliedly credited these declarations and shifted the
burden to Cohen. Trial courts do possess discretion to reject
identical form declarations as inherently incredible, but this trial
court’s implied ruling admitted these declarations. This was no
abuse of discretion: the declarations are not so similar as to defy
belief.
Cohen filed 197 written objections to Centre’s supporting
evidence. This exceeds the 175 objections in Reid v. Google, Inc.
(2010) 50 Cal.4th 512, 532, where our Supreme Court recognized
“that it has become common practice for litigants to flood the trial
courts with inconsequential written evidentiary objections,
without focusing on those that are critical.” (Ibid.) The High
Court observed that all too often litigants file “blunderbuss
objections” to virtually every item of evidence submitted. (Ibid.)
To counter that “disturbing trend,” the Supreme Court
encouraged parties “to raise only meritorious objections to items
of evidence that are legitimately in dispute and pertinent to the
disposition of the summary judgment motion. In other words,
litigants should focus on the objections that really count.
Otherwise, they may face informal reprimands or formal
sanctions for engaging in abusive practices.” (Ibid. [italics added];
see also id. at p. 532, fn. 9 [stating a “message to trial lawyers
10
that if they want the trial court to make meaningful rulings, they
should facilitate its doing so by choosing their battles wisely and
only objecting to evidence when it matters”].)
Cohen has not taken this 2010 Supreme Court guidance to
heart, either here or in the trial court. In the trial court, Cohen’s
first objection was to a declaring witness’s statement that “if
called as a witness, [I] could and would testify competently to
such facts under oath.” Cohen’s first objection was “Inadmissible
legal conclusion [that testimony would be ‘competent’].” This
objection could accomplish nothing of substance in this litigation.
It was frivolous. One ruling down. 196 to go.
When opposing a motion, objecting to every single thing
with no display of professional judgment or restraint is an
abusive practice.
On appeal, Cohen repeats this approach in her opening
brief by listing scores of objections without describing why any of
this is “critical in resolving the summary judgment motion.”
(Reid v. Google, Inc., supra, 50 Cal.4th at p. 533.)
We decline to reward this conduct.
In sum, the Shvilis’s declarations showed Centre personnel
had sincere hopes of buying a San Diego building but hard reality
dashed their rosy dreams. This showing negated scienter and
moved the burden to Cohen.
b
Centre’s second source of proof for the building fund fraud
claim is undisputed evidence Cohen searched for prospective
building locations as Centre’s realtor. The search lasted years.
Cohen visited between 12 and 75 sites. Centre directed Cohen to
negotiate the purchase of a building, though the negotiations
were never finalized. This search evidence suggested Centre’s
11
hunt for a home was real and not a scam. This evidence likewise
negated scienter.
2
Centre’s evidence shows it satisfied the initial burden of
production necessary for summary adjudication of issue five in its
favor. That shifted the burden to Cohen to make her own
showing of a triable issue of material fact. (Aguilar v. Atl.
Richfield Co., supra, 25 Cal.4th at p. 850.) Cohen failed to create
a factual dispute. Her opening brief does not attempt to argue
that evidence shows she is able to prove the elements of her fraud
claims. In reply, Cohen attempts to remedy this failure, but we
ignore arguments first raised in reply. (Scott v. CIBA Vision
Corp. (1995) 38 Cal.App.4th 307, 322.)
Summary adjudication of the building fund fraud claim
thus was proper. Centre won on its issue five.
C
Cohen’s fraud claim concerning the kids program failed for
want of proof that Centre made a misrepresentation. Cohen
claimed Centre tricked her by telling her $25,000 would go to the
kids program when in fact the money went elsewhere. This is
Centre’s issue seven. Centre successfully proved Cohen could not
win on this point. Centre showed Cohen had admitted she did
not know how Centre used her $25,000. Cohen did not dispute
this point. (Aguilar v. Atl. Richfield Co., supra, 25 Cal.4th at p.
855 [a defendant may win summary judgment by presenting
“evidence that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence—as through admissions by
the plaintiff following extensive discovery to the effect that he
has discovered nothing.”].) The trial court properly adjudicated
issue seven for Centre.
12
To summarize, the trial court correctly disposed of all of
Cohen’s fraud claims.
IV
The trial court properly sustained Centre’s demurrer to
Cohen’s breach of fiduciary duty claim. Our review is
independent. (Int’l Bhd. of Teamsters, Local 848 v. City of
Monterey Park (2019) 30 Cal.App.5th 1105, 1109.)
Centre did not owe Cohen a fiduciary duty. Cohen cites
Business and Professions Code section 17510.8, but that section
does not apply to “solicitations” within the membership of a
charitable organization. (Bus. & Prof. Code, § 17510.6.) Cohen
was a member of Centre, which is a charitable organization.
Cohen does not contest these points. Rather she gives two
invalid replies.
First, Cohen says Centre’s solicitation of Cohen may have
been exempt, but Centre’s acceptance of her money was a
different matter. This argument fails, however, because
soliciting and accepting contributions are two sides of the same
coin.
Second, Cohen notes Business and Professions Code section
17510.8 contains the clause “[n]otwithstanding any other
provision of this article . . . .” This clause has no application here,
however, because this section is within the article that does not
apply to “solicitations” within the membership of a charitable
organization. (Bus. & Prof. Code, § 17510.6.)
Cohen’s argument on Richelle L. v. Roman Catholic
Archbishop (2003) 106 Cal.App.4th 257, 276, is immaterial
because that case found no fiduciary duty. In re Miller’s Estate
did find a fiduciary duty between clergy and a congregant, but
the clergy gave the congregant advice on business matters and
13
the congregant was “in the last stages of cancer, drugged with
opiates for several weeks.” (In re Miller’s Estate (1936) 16
Cal.App.2d 141, 148, 150–151.) There is nothing like that here.
V
We affirm the trial court’s order sustaining the demurrer to
Cohen’s Penal Code section 496 claim. That claim rests on
allegations that Centre fraudulently took Cohen’s donations.
As discussed above, Cohen cannot prove Centre defrauded
her. Any error in the trial court’s order sustaining the demurrer
was harmless. (Teresi v. State of California (1986) 180
Cal.App.3d 239, 245, fn. 4.)

Outcome: We affirm the summary adjudication of all of Cohen’s claims, with the exception of Cohen’s contract claim about her $25,000 kids program donation. This claim we remand to the trial court for such further proceedings as the trial court may
deem appropriate, including possible motion practice concerning this claim. Each party shall bear its own costs.

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