Gurvitz v. Mandelbaum CA2/4 ( 2021 )

Filed 1/28/21 Gurvitz v. Mandelbaum CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION FOUR
MEIR GURVITZ, B305532
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV32349)
v.
SHERYL MANDELBAUM, et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Lynn H. Scaduto, Judge. Affirmed.
Holstrom, Block & Parke, Ronald B. Funk for Plaintiff and
Appellant.
Fox Rothschild, John J. Shaeffer, Jocelyn Leinart for
Defendants and Respondents.
INTRODUCTION
Defendant Jennifer Mandelbaum was married to plaintiff
Meir Gurvitz’s son, Joseph Gurvitz.1 When Jennifer and Joseph
divorced, Meir and a company he controlled, Freshbrook Ltd.,
were included in the divorce proceedings as party claimants,
because Freshbrook had a lien on the couple’s home, a marital
asset. Jennifer’s mother, defendant Sheryl Mandelbaum, is an
attorney and helped represent Jennifer in the divorce. Jennifer,
Joseph, Meir, and Freshbrook all reached a settlement agreement
memorialized in a 2017 deal memorandum, which was entered as
a stipulated judgment by the family law court in March 2018.
In March 2019, Joseph attempted to have the judgment set
aside, claiming that he agreed to the settlement under duress as
a result of Jennifer’s threats to him and Meir. That motion was
denied. Meir then sued Jennifer and Sheryl in the instant action,
alleging that they forced the settlement through extortion and
fraud. Jennifer and Sheryl demurred on the basis that the issues
had been fully litigated in the dissolution proceeding and Meir’s
claims constituted an impermissible collateral attack on that
judgment. The trial court sustained the demurrer without leave
to amend.
On appeal, Meir asserts that his complaint included
sufficient factual allegations to state causes of action for extortion
and fraud. He says nothing in his opening brief about the
substantive basis of defendants’ demurrer. As such, Meir has
1Because several people involved in this case share last
names, we refer to them by first names for clarity. No disrespect
is intended.
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failed to demonstrate that the trial court’s ruling was erroneous,
and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint
In September 2019, Meir sued Jennifer and Sheryl; the
first amended complaint (FAC), filed in December 2019, is the
operative complaint for purposes of appeal. Meir alleged two
causes of action in the FAC: extortion and fraud. In the cause of
action for extortion, Meir alleged that Jennifer was previously
married to Meir’s son, Joseph. Sheryl is Jennifer’s mother and
an attorney. Meir alleged that in February 2010, through
Freshbrook, Ltd., “a foreign corporation that was formed to
administer assets for Meir’s benefit,” he purchased a property on
June Street in Los Angeles and had the title placed in Joseph’s
name. “Freshbrook’s loan,” apparently to Joseph, “was
memorialized by a promissory note . . . and was secured by a deed
of trust on the June Street Property.” Meir later paid for
renovations to the property, the property was rented briefly, then
Joseph and Jennifer lived at the property beginning in 2013.
In August 2011 Joseph refinanced the property, paid off the
2010 loan, secured a new loan through East West Bank, and
secured another new loan though Freshbrook. Meir alleged that
Freshbrook’s deed of trust securing the loan was not properly
recorded. After Joseph failed to pay the loans, Freshbrook sued
Joseph and obtained a judgment against Joseph in November
2015, which according to Meir was filed with the Los Angeles
County Recorder and created “a lien on the June Street
Property.”
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Meir alleged that Jennifer fraudulently induced Joseph to
sign a grant deed in December 2014, which changed title to the
June Street property from Joseph alone to Joseph and Jennifer.
Jennifer then filed for divorce in March 2015. Sheryl “became co-
counsel of record for Jennifer in the divorce proceedings, and in
that capacity, acted as Jennifer’s agent in committing the acts”
alleged in the FAC.
Meir alleged that “[d]uring the course of the divorce
proceedings, Freshbrook and Meir were both joined as alleged
claimants against assets of the marital estate.” Freshbrook also
filed a separate action seeking cancellation of the December 2014
grant deed. Meir alleged that Sheryl and Jennifer “sought to
obtain an unfair advantage in the divorce proceedings through
the use of extortionate and unlawful threatening conduct and
intimidation.” The threats included telling Meir that if the
divorce proceedings were not settled favorably to Jennifer, Meir
could “face jail time for tax evasion and serious tax liabilities in
Israel and other countries.” Meir further alleged that Sheryl,
while acting as Jennifer’s attorney, threatened to “finish Meir off
financially,” interfere with his marriage, interfere with his
daughter’s marriage, and release derogatory information about
Meir to the media and on the internet.
Meir alleged that while “under duress” from these threats,
he and Freshbrook joined “a settlement in which Freshbrook
would reconvey its deed of trust on the June Street Property” and
vacate its judgment against Joseph. Meir alleged that he “would
not have so acted but for the extortionate threats made by Sheryl
on behalf of Jennifer.” “Freshbrook has since been wound up,
and its assets (including any claims for damages resulting from
Defendants’ extortionate conduct) have been distributed to Meir.”
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Meir alleged that “[a]s a direct and foreseeable result of
Defendants’ extortionate threats,” he suffered damages to be
proved at trial.
In the cause of action for fraud, Meir alleged that “Sheryl
and Jennifer had caused false claims to be disseminated within
the Orthodox Jewish community that Joseph refused to grant
Jennifer a religious bill of divorcement, known as a get.
Defendants posted these false claims on various internet sites.”
Then Sheryl, representing Jennifer in the divorce, “presented
various demands on behalf of Jennifer,” and “promised that if
Meir acceded to Jennifer’s demands, she would take the false
claims [regarding Joseph] down from the sites on which she
posted them.” Sheryl also “promised that if Meir acceded to
Jennifer’s demands, Jennifer would allow Meir to see the three
children of the marriage between Joseph and Jennifer.” Meir
alleged, “When Sheryl made the foregoing promises, neither
Sheryl nor Jennifer had any intention of performing them. The
promises were thus false at the time they were made.” Although
Meir complied with Sheryl’s demands, the claims against Joseph
have not been removed and Meir has not been allowed to see his
grandchildren. Meir alleged that as a result, he suffered
damages to be proved at trial. On both causes of action, Meir
requested damages, punitive damages, and costs.
B. Demurrer, opposition, and ruling
Defendants demurred to the FAC on three grounds: first,
that the causes of action in the FAC were barred by res judicata
or collateral estoppel; second, that the court lacked jurisdiction to
hear the matter because Meir, Freshbrook, and their attorneys
“have all agreed to a reservation of jurisdiction by Family Court
Department 13 pursuant to a stipulated judgment” signed in
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December 2017 and January 2018 “as joined parties to the
divorce proceeding and as a Plaintiff in the two civil cases filed by
Freshbrook Ltd.”; and third, because “a collateral attack on a
final judgment is impermissible as a matter of law.”
In support of their demurrer, defendants explained that
two civil cases filed by Freshbrook during Jennifer and
Jonathan’s divorce proceeding were found to be related to the
divorce because they affected the characterization of the couple’s
assets; the superior court assigned the civil cases to the family
law department. “[A]fter many months of settlement
negotiations, all of the parties to these coordinated actions and
their respective counsel,” including Meir and his attorney,
“ultimately stipulated to, and signed, a judgment and release of
all claims,” which was entered as a final judgment in March
2018.
Defendants filed a request for judicial notice, which
included the 30-page dissolution judgment.2 The terms of the
2The record on appeal does not indicate whether the trial
court granted defendants’ request for judicial notice, and
defendants did not file a request for judicial notice with this
court. A court may judicially notice the “record of . . . any court of
this state” (Evid. Code, § 452, subd. (d)), and a “reviewing court
may take judicial notice of any matter specified in Section 452.”
(Evid. Code, § 459, subd. (a).) On our own motion, we take
judicial notice of the documents submitted with defendants’
request for judicial notice below, noting that we “may take
judicial notice of the existence of judicial opinions and court
documents, along with the truth of the results reached—in the
documents such as orders, statements of decision, and
judgments—but cannot take judicial notice of the truth of
hearsay statements in decisions or court files, including
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judgment were based on a deal memorandum that Joseph,
Jennifer, Meir, and Freshbrook signed in September 2017. The
judgment stated that Jennifer and Joseph were the parties, and
Freshbrook and Meir were “party claimants.” The judgement
stated that Jennifer was awarded the June Street property
subject to the East West Bank mortgage and an equalizing
payment due upon the sale of the residence. The court found that
Joseph had already executed an interspousal transfer deed. The
court found that prior to the judgment, Joseph “and the Party
Claimants, as applicable, have removed all encumbrances on the
title to the June Street Residence,” as required by the deal
memorandum.
The judgment also stated, “[T]he Court finds that the
Parties and Party Claimants mutually release and forever
discharge each other from any and all actions, liabilities, claims,
demands, and obligations of any kind or character, both in law
and in equity, that any of them ever had, now has, or may have
against one another. . .” and that this release would “apply to any
and all actions, liabilities, claims, demands, and obligations,
whether known or unknown, foreseen or unforeseen, patent or
latent, or mature or unmatured, that the Parties and/or Party
Claimants may have against each other.” The judgment stated
that the court “retains jurisdiction . . . to make orders and
determinations that are necessary and/or appropriate (i) to
enforce any of the terms of this Judgment or otherwise effectuate
the division of property as specified in the Judgment; (ii) . . . to
resolve any dispute that may arise concerning the terms of the
Judgment.” The judgment continued, “The Court finds that each
pleadings, affidavits, testimony, or statements of fact.” (Williams
v. Wraxall (1995) 33 Cal.App.4th 120, 130 fn. 7.)
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Party and Party Claimant . . . enters into this Judgment
voluntarily, free from fraud, undue influence, coercion, or duress
of any kind.” The judgment was signed by Joseph, Jennifer,
Meir, and Freshbrook, and was signed by the court on March 23,
2018.
A year later, in March 2019, Joseph filed a request to set
aside the September 2017 deal memorandum and the March
2018 stipulated judgment on the grounds of duress. Joseph
asserted that there was “extreme duress and coercion exerted on
[him] at the time the settlement was reached.” In a declaration,
Joseph stated that he was assaulted by a man at a restaurant
who accused Joseph of refusing to give Jennifer a get. Joseph
also said that his attorney told him that Jennifer and Sheryl
were threatening Meir. Joseph said that in light of the threats, “I
had to agree to settlement terms as they were being dictated to
me by Jennifer.” He stated, “I believed that I had no choice but to
agree to Jennifer’s demands to settle on her terms that was [sic]
entirely inequitable to protect my father’s health.” Joseph
asserted that the settlement terms were “manifestly unjust.”
Joseph stated that he lost his visa and could not travel to the
United States after July 3, 2017, but he had obtained a new visa
and “[n]ow that I am finally able to travel to the U.S.,” he was
“seeking court intervention to set aside portions of, or in the
alternative the entirety of the Judgment that was entered
against me under duress.”
Meir submitted a declaration in support of Joseph’s
request. The declaration included descriptions of many of the
same threats by Sheryl to Meir that were alleged in the FAC in
this case. Meir stated that he communicated these threats to
Joseph. Notably, Meir did not state that he felt compelled to
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settle his own claims or those of Freshbrook as a result of these
threats.
The family court denied Joseph’s request on May 30, 2019.
In a five-page written order, the court found that no evidentiary
hearing was required “because the material facts are not in
controversy,” and the court “denies [Joseph’s] request for order in
its entirety.” The court noted that more than six months passed
between the deal memorandum and the judgment, and in the
interim the court held a hearing and heard testimony by both
parties. The court invited the parties to tell the court if there
was any reason the judgment should not be entered, and no one
raised any objections. The court noted, “[T]here is a nearly
ubiquitous dynamic in family law cases of parties feeling
pressure to settle to avoid, among other things, uncertainty and
the financial, emotional and reputational toll that proceeding
through discovery and trial can have on the parties and those
they love. The Court of Appeal has made clear that ‘buyer’s
remorse’ about compromises made because of that type of
pressure does not, without more, establish duress.” The court
found that the terms of the settlement were not inequitable,
addressed some of Joseph’s additional arguments, and stated,
“[T]he court concludes that the record before it cannot support a
reasonable conclusion that [Joseph] had no alternative but to
succumb to [Jennifer’s] demands.”
Defendants asserted in their demurrer, “Meir is only
initiating a new lawsuit to attack the Stipulated Judgment
because Department 13 has already decided these same issues
against the Gurvitzes and held the Stipulated Judgment is valid.
[¶] The Court has already decided [Meir’s] claims. This Court
should not allow this charade to continue.” Defendants asserted
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that Meir’s claims were barred by res judicata “because the
allegations levied in his Complaint are among the claims that
[Meir] settled and/or released in the Stipulated Judgment,” and
because Joseph unsuccessfully attempted to have the judgment
overturned on the very same basis. Defendants also asserted
that Meir’s claims constituted an impermissible collateral attack
on the March 2018 judgment.
In his opposition, Meir contended, “Simply put, Defendants’
entire argument fails because there has not been a ‘final
judgment’ on the merits of [Meir’s] claims of extortion and fraud.
The March 23, 2018 judgment . . . issued in the family law matter
. . . did not adjudicate the extortion or fraud claims.” Meir also
stated that Joseph had appealed the family court’s order on his
request to set aside the judgment, and therefore “the ruling on
Joseph’s motion to set aside the Judgment is not a final
adjudication of the extortion issues in any sense.” Meir further
asserted that the family court’s reservation of jurisdiction in the
judgment “is not a ground for demurrer.” Meir asked that if the
court were inclined to sustain the demurrer, that it instead defer
the issue until after Joseph’s appeal was decided. Meir did not
request leave to amend his complaint.
In their reply, defendants asserted that the lawsuit was
engineered to harass them and force them to incur legal fees, and
Meir’s “attempt to spawn even more litigation is a gross misuse of
judicial resources.” Defendants noted that the judgment itself
had never been appealed; Joseph was appealing only the ruling
on his request to set aside the judgment. They asserted, “The law
cannot allow parties to unilaterally undermine the finality and
effect of a judgment by merely filing a motion to set aside the
judgment long after the time for appeal has expired.”
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The record on appeal does not include a reporter’s
transcript of the hearing on the demurrer. The court’s minute
order dated February 6, 2020, stated that the demurrer “is
Sustained without Leave to Amend. [¶] Court orders the entire
case dismissed With Prejudice.” The court did not provide any
explanation of its reasoning in sustaining the demurrer. Meir
timely appealed.
DISCUSSION
Meir asserts two contentions on appeal: first, that he
alleged sufficient facts to demonstrate each element of his two
causes of action, and second, that the trial court erred by not
granting him leave to further amend the complaint. Notably,
Meir has not addressed the contentions raised in defendants’
demurrer—that his claims were barred by res judicata, that the
trial court lacked jurisdiction, and that this action constituted an
impermissible collateral attack on the March 2018 judgment.
Meir’s failure to address the substance of the defendants’
demurrer, which presumably informed the superior court’s
ruling, constitutes a failure to demonstrate error. We therefore
affirm.
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer without leave to amend.”
(California Logistics, Inc. v. State of California (2008) 161
Cal.App.4th 242, 247.) “[W]e accept the truth of material facts
properly pleaded in the operative complaint, but not contentions,
deductions, or conclusions of fact or law. We may also consider
matters subject to judicial notice.” (Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919, 924.) “The judgment must
be affirmed ‘if any one of the several grounds of demurrer is well
taken.’” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962,
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966-967.) Even under the de novo standard of review, the
appellant bears the burden of demonstrating error. (Denny v.
Arntz (2020) 55 Cal.App.5th 914, 920.)
In his opening brief on appeal, Meir points out that the
Supreme Court has described extortion as “the threat to accuse
the victim of a crime or ‘expose, or impute to him . . . any
deformity, disgrace or crime’ (Pen. Code, § 519) accompanied by a
demand for payment to prevent the accusation, exposure, or
imputation from being made.” (Flatley v. Mauro (2006) 39
Cal.4th 299, 332 fn. 16.) Meir asserts that “[a]ll of these elements
are pled and supported by factual allegations” in the FAC, and
“[b]ecause there are sufficient factual allegations in the First
Amended Complaint to support a cause of action for Extortion, it
was error for the trial court to sustain the demurrer. . . .” As for
his fraud cause of action, Meir contends that the allegations in
the FAC “match the requirements of a cause of action for Fraud
(False Promise),” so the demurrer should have been overruled.
Finally, Meir asserts that “even if the demurrer was properly
sustained, it was an abuse of discretion for the trial court to have
failed to grant leave to amend the complaint.”
Defendants point out that although Meir acknowledges
that the trial court “dismissed his complaint based on the
doctrine of res judicata and as an impermissible collateral attack
on [the] judgment, his opening brief is silent on the
appropriateness of a dismissal on such grounds.” Defendants
also assert that without any record indicating the basis for the
trial court’s ruling, Meir cannot demonstrate error. Indeed, there
are “three fundamental principles of appellate review: (1) a
judgment is presumed correct; (2) all intendments and
presumptions are indulged in favor of correctness; and (3) the
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appellant bears the burden of providing an adequate record
affirmatively proving error.” (Fladeboe v. American Isuzu Motors
Inc. (2007) 150 Cal.App.4th 42, 58.) We review a court’s ruling
rather than its reasoning, but “[i]n order to prevail on appeal
from an order sustaining a demurrer,” an appellant is required to
“overcome all legal grounds on which the trial court sustained the
demurrer.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 743, 752.)
Meir’s opening brief does not even attempt to address the
substance of defendants’ demurrer. Defendants did not demur on
the grounds that Meir’s factual allegations were insufficient to
demonstrate each element of his two causes of action.3 Rather,
defendants asserted that the causes of action in the FAC were
barred because his contentions regarding his alleged damages
had been fully adjudicated by the March 2018 judgment. A
demurrer is appropriate where the “ground for objection” appears
in “any matter of which the court is required to or may take
judicial notice.” (Code Civ. Proc., § 430.30, subd. (a).) Presumably,
3At oral argument, Meir’s counsel argued that plaintiffs did
challenge the factual sufficiency of the allegations, because they
sought a demurrer under Code of Civil Procedure, section 430.10,
subdivision (e), which allows for a demurrer when “[t]he pleading
does not state facts sufficient to constitute a cause of action.”
However, this subdivision provides the basis for any “general
demurrer,” and has been interpreted to allow defendants to raise
certain affirmative defenses such as the statute of limitations,
laches, res judicata, and privilege. (See 5 Witkin, Cal. Procedure
(5th ed. 2008) Pleading, §§ 952, 961-967.) “If all of the facts
necessary to show that an action is barred by res judicata are
within the complaint or subject to judicial notice, a trial court
may properly sustain a general demurrer.” (Frommhagen v.
Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.)
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the superior court sustained the demurrer on at least one of the
grounds defendants asserted in the demurrer. Meir argues that
the facts alleged on the face of the complaint were sufficient to
state a cause of action. However, because he has failed to address
the substance of defendants’ demurrer, the documents relating to
the underlying action, or the court’s ruling, Meir has not
demonstrated error.
Meir argues for the first time in his reply brief that his
claims are not barred by res judicata, because a “waiver of claims
in a contract does not preclude a cause of action for fraud in the
inducement of that contract.” He also asserts in his reply brief
that his claims do not constitute an improper collateral attack on
the judgment, because a collateral attack may be allowed in cases
of extrinsic fraud. However, de novo review of an order
sustaining a demurrer “‘is limited to issues which have been
adequately raised and supported in [appellants’ opening] brief.’”
(WA Southwest 2, LLC v. First American Title Ins. Co. (2015) 240
Cal.App.4th 148, 155.) “[A]n appellant’s failure to discuss an
issue in [the] opening brief forfeits the issue on appeal.”
(Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th
118, 125.) Meir’s contentions have been forfeited.
Meir also asserts that the trial court abused its discretion
when it failed to allow him leave to amend his complaint. “[I]t is
an abuse of the trial court’s discretion to sustain a demurrer
without leave to amend if there is a reasonable possibility the
plaintiff can amend the complaint to allege any cause of action.”
(Smith v. State Farm Mutual Automobile Ins. Co. (2001) 93
Cal.App.4th 700, 711.) “To prove such abuse of discretion,
however, the plaintiff must demonstrate how the complaint can
be amended. While such a showing can be made for the first time
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to the reviewing court [citation], it must be made.” (Ibid.) Meir
has not done so here. Instead, he asserts only that this court
must “presume that Meir can and will, at trial, prove the facts
alleged in his First Amended Complaint.” Because Meir has not
demonstrated how the complaint could be amended to address
the issues raised in the demurrer, he has not shown that the trial
court abused its discretion in denying leave to amend.
DISPOSITION
The judgment is affirmed. Defendants are entitled to
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J.
CURREY, J.
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