Lunger v. Zvik CA2/5

Filed 8/26/20 Lunger v. Zvik CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
YAAKOV LUNGER, B289552
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC524165)
v.
NICKI ZVIK et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Marc Marmaro, Judge. Affirmed.
Green Solar Technologies, Inc., Ken I. Ito; Benedon &
Serlin, Gerald M. Serlin and Melinda W. Ebelhar, for
Defendants and Appellants.
Myers, Widders, Gibson, Jones & Feingold, Dennis Neil
Jones and Eric R. Reed; Law Offices of Natan Davoodi and Natan
Davoodi, for Plaintiff and Respondent.
Nicki Zvik (Zvik) and Green Solar Technologies, Inc. (Green
Solar) appeal from a judgment entered against them following a
bench trial held to decide whether Zvik acted as an unlicensed
contractor. Zvik did not testify at the trial because he invoked his
Fifth Amendment right to remain silent in light of a pending
prosecution against him in Riverside County. We are asked to
decide whether the trial court abused its discretion in deciding to
proceed with the civil trial after repeated postponements of the trial
date (totaling nine months), largely to accommodate Zvik’s request
to try and conclude the criminal proceedings first.
I. BACKGROUND
Yaakov Lunger (Lunger) contracted with Zvik, who
signed on behalf of two predecessor entities to Green Solar, to
renovate Lunger’s home. In executing the contracts, Zvik told
Lunger he was a fully licensed, bonded, and insured contractor.
As later found by the trial court in this case, that was not true:
Zvik’s contracting licenses had been revoked and he was
“renting” a contracting license from another party. When a
dispute subsequently arose between Lunger and Zvik before the
house renovation work was completed, Lunger sued Zvik and
predecessor entities to Green Solar on breach of contract,
negligence, and statutory theories of liability.
In October 2016, more than three years after Lunger filed
his complaint and with discovery in the case complete, Zvik
applied ex parte for an order continuing the trial, which was set
to begin the following day (after having first been set in March
2015 and continued several times). Zvik argued a continuance
was necessary because he would not be able to appear at the trial
due to an unidentified “emergency that could not have been
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anticipated or avoided.” The application was supported by a
declaration from Zvik’s attorney who offered to disclose the
details of the “emergency” to the trial court in camera.
Lunger opposed the continuance request and revealed
what he believed to be the nature of the emergency, namely, that
Zvik had been arrested by authorities in Riverside County for
contracting without a license and fraudulently using a
contractor’s license number. Lunger argued the equities favored
proceeding with the civil trial, notwithstanding the criminal
prosecution, because his case had been pending for three years
and he and his family had been living in what he described as a
half-finished house for even longer.
The appellate record does not include a reporter’s
transcript of the hearing on Zvik’s application for a
continuance. But the record does reveal the trial court initially
agreed to stay the civil proceedings for a few weeks until Zvik
made an appearance in the criminal case—and later imposed a
stay that lasted nearly five-months.
By March 2017, the criminal case against Zvik remained
pending and the stay of the civil case was still in place. The
parties in the civil case appeared in court, and the appellate
record does not include a reporter’s transcript memorializing
what was said. We do know from the record, however, that the
trial court lifted the stay and set a new trial date five months
out, in August 2017.
On August 2, 2017, the day of the final status conference
before the scheduled trial date, Zvik filed an ex parte application
to stay the proceedings for 60 days. Zvik told the court he
thought the criminal case against him would be resolved within
that time and he argued the resolution of the criminal case would
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dispense with an asserted need to invoke his privilege against
self-incrimination, which would permit him to testify in the civil
case. Zvik’s application was not supported by a declaration from
his criminal defense attorney or documents from the pending
criminal case. Rather, it was accompanied only by a declaration
from Zvik’s attorney in the civil case who, on information and
belief, represented the criminal action involved either “virtually
identical” or the “exact” same allegations against Zvik as were
pending in Lunger’s civil lawsuit.
Lunger opposed Zvik’s application for a further stay and
argued it was merely a reprise of his earlier request for a
continuance that the court had denied. Lunger maintained, as he
had when asking the court to lift the earlier stay, that the
balance of equities favored moving forward with the trial without
further delay.
The trial court denied Zvik’s ex parte application for a stay
the same day it was filed; the record again includes no reporter’s
transcript of the hearing on the application. Trial commenced days
later on August 8, 2017. Before presenting evidence, the parties
agreed Zvik could invoke his privilege against self-incrimination
without need to take the witness stand and assert the privilege in
response to question after question.
After four days of testimony, the trial court continued the
trial for five weeks to accommodate the court’s calendar, a pre-
planned vacation for Lunger’s counsel, the trial schedule of Zvik’s
counsel, and a request by Zvik to set the date to resume trial
after the preliminary hearing in the criminal case (at which Zvik
might enter a plea pursuant to a plea bargain). The trial court
said it was “not altering” its prior ruling denying Zvik’s
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application for a 60-day stay and was instead acquiescing to a
“modest” accommodation that the court found to be “reasonable.”
When trial resumed on September 18, 2017, Zvik’s counsel
again asked for a temporary stay of the proceedings because the
criminal case still had not resolved.1 The trial court rejected the
renewed request and explained its reasoning: “I’ve considered
this issue. It’s discretionary what I do in a case of a Fifth
Amendment situation. It’s a question of balancing what’s best for
all the parties in the case. I did continue it on a number of
occasions to allow t[he criminal matter] to come to [a] conclusion,
and I granted yet another continuance to get us past the
[preliminary hearing] date in September. So I think I’ve dealt
with it[,] considered all the factors that weigh one way or the
other and concluded that this case should be tried.”
On the merits of the dispute, the trial court ultimately
issued a judgment in favor of Lunger, awarding him a total of
$232,423.54 in damages, disgorgement, and prejudgment
1 Zvik’s civil attorney told the trial court that the lawyer
representing Zvik in the criminal case was travelling to the
courthouse and could answer any questions the court might have
about the criminal proceedings. The trial judge told the lawyer
he had a “right to be heard” and advised “[i]f there is new
information that you think should alter my thinking, I’ll hear
from you on it.” Zvik’s criminal attorney provided no information
about the posture of the criminal case against Zvik even though
Zvik, by that time, had pled guilty to some of the charges against
him and a sentencing hearing had been scheduled. Instead, the
criminal attorney and the court discussed whether Zvik would
have to invoke the Fifth Amendment privilege on a question by
question basis and ultimately agreed he would not.
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interest, $12,418.58 in costs, and $248,547 in attorney fees,
plus post-judgment interest.
II. DISCUSSION
The trial court did not abuse its discretion in rejecting
Zvik’s request for a further continuance of the trial date.2 The
trial court understood it needed to make an effort to
accommodate the interests of both sides—of Lunger’s interest in
obtaining reasonably prompt redress of the alleged wrongs and
disgorgement of the money he paid Zvik for unlicensed work, and
of Zvik’s interest in participating in the civil proceedings without
possibly compromising his criminal defense. As we shall explain,
the court did just that. The court responsibly exercised its
discretion on the information it had by repeatedly continuing the
trial date for a substantial length of time as requested by Zvik
while ultimately drawing a line and denying further
continuances as requested by Lunger.
Our Supreme Court has long recognized that a trial court
must balance competing interests when a defendant in a civil
2 There were many requests for continuances or stays of the
civil proceedings. Zvik’s opening brief would benefit from greater
clarity, but a sentence on page 23 indicates he challenges “[t]he
trial court’s refusal to continue the civil trial on August 2, 2017
[citation] or September 18, 2017 [citation] . . . .” We shall only
address the merits of the challenge to the September 2017 ruling.
The record includes no reporter’s transcript of the August 2017
hearing and we therefore cannot conclude the trial court’s ruling
at that time was an abuse of discretion. (Denham v. Superior
Court (1970) 2 Cal.3d 557, 564; Southern California Gas Co. v.
Flannery (2016) 5 Cal.App.5th 476, 483.)
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action is also a defendant in a parallel criminal proceeding:
“[T]roublesome is the plight of a defendant in a criminal
prosecution who must also defend against civil proceedings
involving the same facts. [¶] ‘There may be cases where the
requirement that a criminal defendant participate in a civil
action, at peril of being denied some portion of his worldly goods,
violates concepts of elementary fairness in view of the
defendant’s position in an inter-related criminal prosecution. On
the other hand, the fact that a man is indicted cannot give him a
blank check to block all civil litigation on the same or related
underlying subject matter. Justice is meted out in both civil and
criminal litigation. The overall interest of the courts that justice
be done may very well require that the compensation and remedy
due a civil plaintiff should not be delayed (and possibly denied).
The court, in its sound discretion, must assess and balance the
nature and substantiality of the injustices claimed on either side.’
[Citation.]” (People v. Coleman (1975) 13 Cal.3d 867, 884-885.)
“‘The decision whether to stay civil proceedings in the face
of a parallel criminal proceeding should be made “in light of the
particular circumstances and competing interests involved in the
case.” [Citation.] This means the decisionmaker should consider
“the extent to which the defendant’s fifth amendment rights are
implicated.” [Citation.] In addition, the decisionmaker should
generally consider the following factors: (1) the interest of the
plaintiffs in proceeding expeditiously with this litigation or any
particular aspect of it, and the potential prejudice to plaintiffs of
a delay; (2) the burden which any particular aspect of the
proceedings may impose on defendants; (3) the convenience of
the court in the management of its cases, and the efficient use of
judicial resources; (4) the interests of persons not parties to the
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civil litigation; and (5) the interest of the public in the pending
civil and criminal litigation. [Citation.]’” (Avant! Corp. v.
Superior Court (2000) 79 Cal.App.4th 876, 885.) Owing in part to
the difficulty in performing such a delicate task, we review a trial
court’s ruling using the deferential abuse of discretion standard
of review. (People v. Coleman, supra, 13 Cal.3d at 884-885;
accord, Bains v. Moores (2009) 172 Cal.App.4th 445, 480.)
In undertaking that review, Zvik faces an initial difficulty. A
stay of civil proceedings in light of pending criminal proceedings is
appropriate when the civil and criminal proceedings are not just
concurrent but are “inter-related” and involve “the same facts.”
(People v. Coleman, supra, 13 Cal.3d at 884-885.) It is not clear
from the appellate record, for which Zvik as the appellant seeking
reversal is ultimately responsible, that the civil and criminal
proceedings at issue here were interrelated or involved the same
facts. The civil action was litigated in Los Angeles County, the
criminal proceeding in Riverside. Records from the criminal
proceeding that we have judicially noticed indicate there were
multiple victims, none of whom is alleged to have been Lunger. The
trial court was not given a written description or summary of the
criminal proceedings (much less a copy of the criminal complaint),
and furthermore, the court was not told during the hearing on
September 18, 2017, that the Riverside criminal court had accepted
Zvik’s plea six days earlier.
Assuming for argument’s sake, however, that the civil and
criminal proceedings were sufficiently interrelated, the record
establishes the trial court considered Lunger’s interest in moving
forward with the case. This was a significant consideration given
the years that had elapsed from the filing of the lawsuit and the
nearly $100,000 Lunger had already paid Zvik for unlicensed
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work on what Lunger called a “half-finished house”—money that
Lunger would be entitled to get back through the remedy of
disgorgement. It is also clear the trial court gave great weight to
Zvik’s privilege against self-incrimination and his professed
desire to testify in the civil case: the court repeatedly agreed to
stays, continuances, and delays of trial,3 and when the court
ultimately refused to delay the case any further, it did so having
no reason to be confident the criminal case would soon conclude.
The court’s weighing of these competing considerations, in
combination with the court’s own interest in efficiently managing
its calendar and the public’s interest in the orderly progress of
court proceedings (especially in an unlicensed contractor case (see
generally Hydrotech Systems, Ltd. v. Oasis Waterpark (1991) 52
Cal.3d 988, 995 [purpose of the licensing law is to protect the
public from incompetence and dishonesty in those who provide
building and construction services])), was not an abuse of
discretion.4 (See, e.g., Bains v. Moores, supra, 172 Cal.App.4th at
480-482, 486 [trial court did not abuse its discretion in denying
request for a stay where the case had been pending for years,
stays had previously been granted, and the trial court could only
speculate as to when the criminal matter would be resolved].)
3 The court’s acquiescence in these delays is quite significant
because Zvik was at least partially in control of the timeline of
the criminal case if he was willing to resolve the case by plea—
which is eventually what occurred.
4 Zvik has also not carried his burden to show the trial
court’s exercise of its discretion resulted in a miscarriage of
justice. (Cal. Const., art. VI, § 13.) There was no proffer by
Zvik’s attorney in the trial court as to what Zvik’s testimony
would have been if he had felt free to testify.
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DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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