Judge: Daniel S Belsky, Case: 37-2023-00020468-PR-OP-CTL, Date: 2023-10-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 11, 2023

10/12/2023  02:00:00 PM  504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate  Other Probate Matter Motion to Quash (Probate) 37-2023-00020468-PR-OP-CTL IN RE THE ESTATE OF DIANE AMMEL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/31/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motions to Quash Deposition Subpoena to J.P. Morgan Chase Bank N.A. and to the Law Firm of Goria, Weber & Jarvis are taken off calendar pursuant to the moving party's request. (ROA 40, 41.) The Motion to Quash Deposition Subpoena to the Law Office of Brian Cochran filed by Sheila Johnson is DENIED.

I. Background The case concerns the estate of Diane Ammel ('Decedent') who died on January 13, 2023, in San Diego, California. Decedent was survived by her two brothers, Jerry Ammel and John Ammel ('Petitioners'). Sheila Johnson ('Respondent') is the named Executor under Decedent's Last Will.

On May 12, 2023, Petitioners filed a Petition for: (1) contest of will; (2) invalidity of Will due to lack of capacity and/or undue influence; (3) for return of estate property and double damages; (4) for an accounting; (5) breach of fiduciary duty; (6) imposition of a constructive trust; and (7) to invalidate donative real property transfers. ('Petition'). (ROA 1.) The petition alleges that '[o]n December 29, 2022, while at the hospital receiving cancer treatments and while in great pain and discomfort, [Respondent Sheila Johnson] presented the Last Will & Testament of Diane Ammel ('Will'). The Will states it was prepared by attorney Brian Cochran. Diane purportedly executed this Will; and notably, the two witnesses to the Will are registered nurses employed by the hospital.' (Pet., ¶ 27.) 'Under the purported Will, Diane gave all her real estate and personal property to Sheila, which includes Diane's monies, stock options, and real properties. Further, Diane purportedly appointed Sheila as her Executor.' (Id., ¶ 28.) On July 31, 2023, Respondent filed the instant motions to quash deposition subpoenas issued to J.P.

Morgan Chase Bank N.A. (ROA 13), Goria, Weber & Jarvis, Attorneys at Law (ROA 18), and the Law Office of Brian Cochran (ROA 22).

On September 14, 2023, Petitioners filed a Supplement to Petition. (ROA 29.) On September 21, 2023, Respondent filed a supplemental memorandum of points and authorities and Calendar No.: Event ID:  TENTATIVE RULINGS

3004338 CASE NUMBER: CASE TITLE:  IN RE THE ESTATE OF DIANE AMMEL [IMAGED]  37-2023-00020468-PR-OP-CTL separate statement in support of the motion to quash the deposition subpoena issued to the Law Office of Brian Cochran. (ROA 33, 34.) The proof of service of the supplemental papers shows service by mail.

(ROA 35.) On September 29, 2023, Petitioners filed an opposition. (ROA 36.) On October 4, 2023, Respondent filed requests to take off calendar the motions to quash the depositions subpoenas issued to J.P. Morgan Chase Bank N.A. and to Goria, Weber & Jarvis, Attorneys at Law. (ROA 40, 41.) On October 5, 2023, Respondent filed a reply. (ROA 39.) II. Discussion A. Compliance with the Rules of Court As a preliminary matter, the Court notes the parties' electronic exhibits fail to comply with CRC 3.1100(f)(4), which requires that unless submitted by a self-represented party, the electronic exhibits include electronic bookmarks with links to the first page of each exhibit, with bookmark titles identifying the exhibit number and briefly describing the exhibit. (See ROA 24, 37.) Respondent's untimely filings fail to comply with CRC 3.1300(a) and CCP § 1005(b). Respondent filed a supplemental memorandum of points and authorities and separate statement on September 21, 2023.

(ROA 33, 34.) Motion papers were required to be filed 16 court days before the hearing, or by September 19, 2023, pursuant to CCP § 1005(b). Moreover, the supplemental papers were served on Petitioners on September 20, 2023, by mail. (ROA 35, Decl. of Service.) As such, notice and service of the supplemental papers is defective.

Petitioners object to Respondent's late supplemental filings as untimely and on the ground the moving party did not engage in sufficient meet and confer.

Respondent's Separate Statement, which duplicates arguments already made in the original motion, fails to comply with CRC 3.1345(c).

Based on the foregoing, the Court finds the motion may be denied on procedural grounds. However, notwithstanding the procedural deficiencies, the Court will consider the late and defective filings and rule on the merits of the motion.

Compliance with the Rules of Court is mandatory. The parties are expected to comply with all applicable rules in the future.

B. Motion On June 14, 2023, Petitioners served on the Law Office of Brian Cochran a subpoena for the production of the following records: 1. The entire estate planning file CONCERNING Diane Ammel.

2. All invoices generated by YOU for legal estate planning services provided by YOU to Diane Ammel.

3. Any and all COMMUNICATIONS between YOU and Diane Ammel CONCERNING legal estate planning services provided by YOU to Diane Ammel.

4. Any and all COMMUNICATIONS between YOU and Sheila Johnson CONCERNING legal estate planning services provided by YOU to Diane Ammel.

5. Any and all COMMUNICATIONS between YOU and any PERSON CONCERNING estate planning legal services provided by YOU to Diane Ammel.

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3004338 CASE NUMBER: CASE TITLE:  IN RE THE ESTATE OF DIANE AMMEL [IMAGED]  37-2023-00020468-PR-OP-CTL (ROA 22, Mot., Exh. 1.) Respondent argues deponent is a law firm retained by Respondent prior to the commencement of this action, on a matter independent of the Will contest. Respondent argues that all communications between the attorney and Respondent are privileged as attorney-client communications and protected as attorney work product, and no exceptions apply. Respondent argues Petitioners seek information not necessary to the action, and the demands for privileged information are harassing, overbroad, burdensome, and oppressive.

Respondent further argues that she is both the respondent in this case and the personal representative of Decedent's estate, and the subpoena seeks documents and information that are objectionable by the personal representative. As the Executor under Decedent's Last Will, Respondent claims she filed a petition with this Court seeking appointment as the personal representative of Decedent's estate. As such, Respondent 'requests this Court to preserve the objections of the personal representative to the Subpoena by staying a response until after the hearing for appointment of the personal representative.' (ROA 33, Supp. Memo of Ps&As, at p. 2, fn. 1.) Petitioners argue Respondent's late supplement to her motion must be rejected as untimely, and in any event, the motion must be denied on the merits. Petitioners argue the subpoenaed records fall within the exceptions to the attorney-client privilege under Evidence Code §§ 956-962. There are exceptions to the attorney-client privilege in situations involving a decedent's estate planning, which requires the attorney to reveal the client's confidential information. Thus, there is no attorney-client privilege as to: (1) any communication relevant to an issue concerning the intention or competence of a client executing an attested document, of which the lawyer is an attesting witness, (2) concerning the document's execution or attestation, or (3) concerning the validity of a will or other writing executed by a now-deceased client that purports to affect an interest in property.

Petitioners further argue Respondent lacks standing to assert the attorney-client privilege because she is not the personal representative of Decedent. There is no holder of the privilege and Respondent cannot assert the privilege on behalf of Decedent. Respondent also lacks standing because she was not the client for Decedent's estate planning, and any privilege was waived as to any communications disclosed to Respondent, a third party. Moreover, Respondent lacks standing to assert the privilege under the attorney work-product doctrine because she is not the attorney.

Petitioners argue the attorney's general work product should be produced to avoid unfair prejudice.

Petitioners allege, inter alia, that Respondent procured certain trust amendments through undue influence, to establish her position as the primary beneficiary of Decedent's property. Aside from communications among Decedent, Respondent, and attorney Cochran, the work product contained in the estate planning file is the best source of evidence to confirm or rebut these claims, and it would be prejudicial to withhold the information as there can be no adequate substitute for Decedent's attorney's work product.

Petitioners request alternatively that the allegedly confidential records be identified in a privilege log.

Petitioners note that Respondent's work product objection, as framed, does not provide information to assess the merits of her claims, and thus, Petitioners are entitled to more specific identification of the documents claimed as work product, with sufficient information to permit an evaluation of whether the claim has merit, pursuant to CCP § 2031.240(c)(l).

1. Analysis A party may obtain discovery from a non-party by way of a deposition subpoena for business records.

(CCP § 2020.010(a)(3).) An entity that has been served with a deposition subpoena for production of records is obligated to produce all responsive documents within its control. (CCP §§ 1985(a), § 2020.030.) Courts are authorized to compel compliance with the deposition subpoena on a showing of good cause for the production and good faith effort to informally resolve the dispute. (CCP §§ 1987.1 Calendar No.: Event ID:  TENTATIVE RULINGS

3004338 CASE NUMBER: CASE TITLE:  IN RE THE ESTATE OF DIANE AMMEL [IMAGED]  37-2023-00020468-PR-OP-CTL and 2025.480.) a. Insufficient Meet and Confer The motion as originally filed, only objected to Request No. 4 of the subpoena at issue. (ROA 22, Mot., at pp. 5-8.) Respondent argued that 'Petitioners have requested communications between Attorney Brian Cochran and the Decedent to which Ms. Johnson does not object. Petitioners have also requested the estate planning file concerning the Decedent, to which Ms. Johnson does not object. Ms. Johnson's [sic] objects only to communications between her and her attorney, Brian Cochran.' (Id., at p. 5.) Thereafter, Respondent filed a supplemental memorandum of points and authorities and separate statement, generally objecting to the entire subpoena. Thus, the supplemental filings clearly expand the scope of the motion beyond what appears to have been discussed during the meet and confer, as evidenced by Respondent's own arguments in the original motion. (See ROA 37, Russo Decl.) Therefore, the Court finds moving party did not engage in sufficient meet and confer as required under CCP § 2025.480(b) prior to filing the motion.

b. Merits In substance, the motion lacks merit. The subpoena seeks records pertaining to Decedent's estate planning and any communications between the attorney and Decedent, or about Decedent, which are clearly relevant to Petitioners' claims regarding the validity of Decedent's Will and the manner in which it was procured. Neither Respondent nor information concerning Respondent, is the subject of the subpoena. Attorney Cochran is alleged to have drafted the Will and thus, the client was Decedent, and not Respondent. That Respondent may have retained attorney Cochran as her own attorney in a separate matter is not grounds to assert any privilege reserved to the client, Decedent. Even if the attorney-client privilege applied, the exceptions under Evidence Code sections 957 (parties claiming through a deceased client), 960 (intention of deceased client concerning writing affecting property interest) and 961 (validity of writing affecting property interest), and possibly 959 (lawyer attesting as witness), clearly apply under the facts alleged in the Petition.

In addition, Respondent is not the personal representative of Decedent's estate. To be clear, although Respondent claims she has filed petitions (Petition for Probate and Petition for Appointment) in this Court, the Court is not aware of any petitions filed by Respondent. The Register of Actions shows a single petition filed by Petitioners at ROA 1. Moreover, there is no Notice of Related Case and the parties do not identify any cases with specificity. Thus, the Court will not stay production based on a purportedly pending petition for appointment.

Even if a petition for appointment was pending, at this time, there is no personal representative appointed for Decedent's estate who can assert the privilege, if it would even be in Decedent's interest to assert such privilege under the circumstances. Therefore, Respondent lacks standing to assert the attorney-client privilege. (EC §§ 953, 954; EC § 951 [''client' means a person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.'].) Respondent also lacks standing to assert the privilege under the attorney work-product doctrine, as she is not the attorney. Attorney Cochran has not asserted any objections to the subpoena.

Therefore, the motion is DENIED. Attorney Cochran is ordered to comply with the subpoena in its entirety.

As to Request No. 4, which seeks any and all communications between attorney Cochran and Respondent, and Request No. 5, which seeks any and all communications between attorney Cochran and any person, concerning the legal estate planning services provided by the attorney to Decedent, if the records include confidential information and are withheld on this basis, a privilege log must be Calendar No.: Event ID:  TENTATIVE RULINGS

3004338 CASE NUMBER: CASE TITLE:  IN RE THE ESTATE OF DIANE AMMEL [IMAGED]  37-2023-00020468-PR-OP-CTL provided. The information claimed to be privileged must be identified with sufficient specificity to allow Petitioners to assess the merits of the claimed privilege.

Attorney for Petitioners is directed to serve notice of ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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