Filed 5/7/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CAROLYN COHEN et al.,

Plaintiffs and Appellants,

v.

KABBALAH CENTRE 

INTERNATIONAL, INC., et al.,

Defendants and Respondents.

 B284446

 Los Angeles County

 Super. Ct. No. BC528979

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Richard L. Fruin, Jr., Judge. Affirmed in part, 

reversed in part, and remanded with directions.

Law Offices of Alain V. Bonavida and Alain V. Bonavida, 

for Plaintiffs and Appellants.

Polsinelli LLP, Noel S. Cohen, and J. Alan Warfield, for 

Defendants and Respondents.

_______________________
2

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.)

DISPOSITION

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. 

WILEY, J.

WE CONCUR:

BIGELOW, P. J.

GRIMES, J.