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In Re the Marriage of Jessie A. and Robert S. Kahn. v. Robert S. Kahn

April 26, 2013

IN RE THE MARRIAGE OF JESSIE A. AND ROBERT S. KAHN. JESSIE A. KAHN, RESPONDENT,
v.
ROBERT S. KAHN, APPELLANT.



(Super.Ct.No. IND097341) APPEAL from the Superior Court of Riverside County. Lawrence P. Best, Temporary Judge (pursuant to Cal. Const., art. VI, § 21) and Dale R. Wells, Judge.*fn2

The opinion of the court was delivered by: Richli J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Affirmed in part and reversed in part with directions.

In this dissolution of marriage proceeding, husband Robert Kahn failed to respond to discovery propounded by wife Jessie Kahn. Even after the trial court granted Jessie's motion to compel, he still failed to respond. Finally, after Jessie filed a motion for terminating sanctions, Robert served responses, but they included numerous objections based on the Fifth Amendment.

The trial court struck Robert's responsive pleading as a discovery sanction and entered his default. It also denied his motion to set aside the default. After a prove-up hearing, it entered a default judgment, which, among other things, awarded Jessie $275,000 against Robert for breach of fiduciary duty.

Robert now contends:

1. The trial court erred by striking Robert's responsive pleading and entering his default.

2. The trial court erred by denying Robert's motion to set aside the default to the extent that the motion was based on his attorney's affidavit of fault.

3. The award of $275,000 was not supported by substantial evidence.

4. The award of $275,000 exceeded the scope of the petition.

In the published portion of this opinion, we agree that the award of $275,000 rendered the judgment void, because Jessie's petition had not indicated that she was seeking any particular amount of damages for breach of fiduciary duty. In the unpublished portion, we find no other error. Hence, we will remand to the trial court with directions to determine whether to modify the judgment by striking the award of $275,000 or to vacate the judgment in its entirety so that Jessie can file an amended petition and seek damages for breach of fiduciary duty.

I

GENERAL FACTUAL AND PROCEDURAL BACKGROUND*fn3

Jessie and Robert were married in 1958. In 2007, after 48 years of marriage, they separated. In 2009, Jessie filed the present dissolution proceeding. Robert filed a responsive pleading.

It was Jessie's understanding that Robert owned numerous parcels of real property, either directly or through various business entities. Robert claimed, however, that most of the properties had either been sold or were "owned and in the possession of . . . his girlfriend." He admitted having an interest -- through business entities named Maverik Properties (Maverik) and The Beverly Building LLC -- in a commercial building on Beverly Boulevard in Los Angeles. He claimed, however, that the building was operating at a loss and that his only income was $570 a month from Social Security.

On Jessie's motion, the trial court appointed a receiver. However, Robert failed to cooperate with the receiver and interfered with the receiver's management of the building.

II

THE TRIAL COURT'S ORDER GRANTING TERMINATING SANCTIONS

Robert contends that the trial court erred by striking his responsive pleading and entering his default.

A. Relevant Factual and Procedural Background.

1. The motion to compel.

On April 23, 2009, Jessie served Robert with form interrogatories and a request for production of documents.

At the time, Robert was in propria persona. The next day, however, April 24, 2009, he retained Attorney Thomas M. Stefanelli. Nevertheless, on May 28, 2009, when responses were due (Code Civ. Proc., §§ 2030.260, subd. (a) [interrogatories], 2031.260, subd. (a) [document requests]; see also Code Civ. Proc., § 1013), Robert wholly failed to respond.

On June 16, 2009, Stefanelli belatedly requested an extension of time. He told Jessie's attorney, " . . . I will be meeting with my client on . . . June 18, 2009. I will be able to get you his responses to your discovery within a few days thereafter." However, he did not do so.

On July 14, 2009, Jessie filed a motion to compel.

On July 30, 2009, Attorney Stefanelli substituted out in favor of Robert, in propria persona.*fn4

Robert did not file any opposition to the motion to compel. On August 19, 2009, the trial court granted the motion. It ordered Robert to respond within 30 days. It did not specifically state that the responses were to be without objection. However, Robert had already waived any objections by failing to serve a timely response. (Code Civ. Proc., §§ 2030.290, subd. (a) [interrogatories], 2031.300, subd. (a) [document requests].)

Robert did not respond by the date set by the trial court.

2. The motion for terminating sanctions.

a. Jessie's motion.

On December 1, 2009, Jessie filed a motion to strike Robert's responsive pleading as a discovery sanction.

On December 14, 2009, Attorney Bertrand Cottle substituted in as attorney for Robert.

On December 17, 2009, at a hearing, Cottle stated, " . . . I have Mr. Kahn working with my paralegal . . . to provide discovery responses . . . ." Based on that representation, Jessie's attorney agreed to continue the hearing on the motion for terminating sanctions.

On April 13, 2010, however, Robert substituted Attorney B. Palmer Riedel in place of Attorney Cottle.

b. The receivership.

Meanwhile, on December 17, 2009, the trial court had appointed a receiver. On April 20, 2010, the receiver filed a report stating that Robert had failed to turn over business books and records, citing the Fifth Amendment and the right to privacy; he had failed to turn over business bank accounts; and he had interfered with the receiver's business relationships with employees and tenants.

c. Robert's opposition.

On April 23, 2010, Robert filed a declaration in opposition to the motion for terminating sanctions. In it, Robert noted that he had been in propria persona from July 25 through December 9, 2009, assertedly due to lack of funds.

He stated, "On or about July 4, 2009, I had a mishap falling down a set of stairs injuring my back which left me incapacitated for three to four weeks. It was actually not until ...


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