Movants contend that given this order MV will not be able to prove the sole contention of his PC 850 petition asserting a right of survivorship in Account x 2030. They assert also that even absent his binding judicial admission - that precludes any other evidence on this issue - that any such right would depend on a writing executed by Decedent (under PC sec. 5203(a) and Estate of O’Connor (2017) 16 Cal.App.5th 159, 171) - on file with BA that does not appear to exist after service of a document records subpoena on BA.
MV argues also procedurally: (1) A claim of fraud seeking rescission may not be pursued by way of a 850 petition in any event, and that pursuant to PC sec. 856.5, where rescission is merely a remedy and the cause of action is for fraud there is a right to jury trial that cannot be avoided by way of an equitable proceeding. Nmsbpcsldhb v. County of Fresno (2007) 152 Cal.App.4th 954, 963 (2) Decedent’s estate has an interest in those funds and those interests are not represented herein by Aileen Federizo, the Special Administrator, where she does not have the necessary general powers by way of the letters issued to her on May 13, 2019. MV argues further a fraud cause of action cannot be asserted under PC sec. 8544(c) without an estate representative to sue.
The motion as to Movants’ petition must be denied where the facts setting forth the basis for rescission of the gifts is not supported by a separate statement of undisputed facts establishing each element of any claim of fraud or mistake on their part.
Moreover, the facts are disputed as to whether these funds were gifts when, for example, the Huang parents decided to give the Moreno property to Decedent and her sister before Decedent met MV (pursuant to a judgment entered July 30, 2004), that it was not false that Decedent was experiencing financial issues or that their knowing Decedent’s different marital status would have been material. In addition, MV points to an order of Judge Small denying an earlier summary judgment motion finding transfer of OTF stock was not a gift. (Ex. H to Correll Decl.)
MV argues also YCH did not have a right to rescind these transfers as a legal matter regardless, pursuant to the OTF by-laws.
This court should reconsider the order deeming the RFA’s admitted where those facts are not actually true, that order was the result of incompetence of prior counsel and Movants should not effectively prevail here by way of default. MV argues Judge Small is now “unavailable,” the facts showing the admitted facts are disputed was not before Judge Small when he last addressed this issue and an interim order can under these circumstances be subject to reconsideration under IRMO Oliverez (2015) 238 Cal.App.4th 1242, 1248-49.
MV claims – leaving aside the admissions – that the facts are disputed as to whether MV has an interest in the accounts:
(1) That these were “joint accounts” with right of survivorship without the writing that Movants contend is necessary, pursuant to PC secs. 5203(b) and that the burden is on Movants to show by clear and convincing evidence that Decedent had a different intent under PC sec. 5302(a).
(2) That funds received from OTF during the marriage would presumptively be community property under Family Code sec. 760 and Movants have not met their burden to show otherwise.
(3) That SH has already received more than her share of the proceeds from sale of the Moreno Property by reason of an agreement to share the cost of various improvements made by Decedent and MV, consistent with a further finding of Judge Small on a different summary judgment motion. (Ex. I to Correll Decl.)
Finally, MV requests a continuance of this motion, pursuant to CCP sec. 437c(h), where he needs to take certain depositions to determine the character of the $2 million transfer; i.e., whether this was a gift to her, as claimed by Movants, or derived from sale of her own interest in OTF stock.
On March 24, 2023, Movants filed a Reply in further support of the motion. The reply adds the following:
The Admitted Matters Order arose out of MV contending belatedly that Remus Velcherean was not the same person as MV, that this might avoid enforcement of any orders in MV’s native Romania and that Judge Small made the resulting order because this claim was deliberate, frivolous and not the result of mistake, inadvertence or excusable neglect.
Movants argue that the Admitted Matters Order would apply to all rights to the funds in the Accounts, including bequests under a will or to an inheritance by way of intestate succession because interests of a decedent pass immediately upon death. (Mannheim v. Superior Court (1970) 3 Cal.3d 678, 691) Moreover, given the judicial admissions, MV lacks standing and his submitting any contrary evidence to try to show a triable issue is not permitted. (St Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775)
Movants’ Separate Statement provided enough facts to permit summary judgment and service of notice of rescission is sufficient to make such effective. (Peterson v. Highland Music, 140 F.3d 1313, 1322-23, 9th Cir. 1998)
Not permitting rescission would be unconscionable where MV purportedly caused the mistake and would permit a fraud where MV admitted not having disclosed that Decedent was suicidal before her death. (Estate of Eskra (2022) 78 Cal.App.5th 209, 226, n. 9)
MV is estopped to argue the applicability of PC sec. 856.5 where MV filed his own 850 petition.
Finally, that no continuance of the motion should be permitted where this motion is premised on the admissions – which make any other issues irrelevant.
DISCUSSION
The Court grants the Requests for Judicial Notice (“RJN”) of each side as to the voluminous filings related to the admitted matters orders, as well as of other filings, and of the hearing transcripts.
The Court has ruled separately on the parties’ respective Objections to the other side’s evidence related to the motion.
Abatement for civil jury trial
In Nmsbpcsldhb, supra, that MV relies upon, the Court addressed whether an action for rescission was in law or equity and concluded it was one in equity; thereby obviating any need for a jury trial. Therefore, there is no reason to abate Movants’ petition – as MV seeks - on the basis that a civil action for rescission based on fraud might have priority over a Probate petition concerning the same subject matter. Moreover, there is no civil action for fraud pending. The related civil case concerns elder abuse, as opposed to fraud. Any fraud cause of action (as to which there would be a right to jury) presumably should have already been pled as part of the case already started. Even acknowledging there is a right to jury trial on an elder abuse cause of action (that has as its predicate wrongful action by MV), no grounds have been provided that the elder abuse case must go first. Moreover, Movants’ petition seeks restitution based on notices of rescission; an equitable remedy – which typically is heard prior to any action at law.
For these reasons, there is no good cause for postponing decision on this motion as to petitions pending for several years already. It does not appear here that an action is sought in equity to avoid a case before a jury. Any such cause of action could have been brought but was not. Accordingly, there is no reason under PC sec. 856.5 for this matter to be determined by a civil action. Indeed, MV himself has sought to utilize a PC 850 petition to address these ownership issues – which cause of action provides a broad legal basis to resolve these issues - thereby defeating the weight of the argument.
Need for Personal Representative
MV argues that summary judgment cannot now be granted to Movants on their petition where (a) a special administrator cannot be sued so that the interests of the estate in the petitions can be heard and (b) that the interests of the estate need to be heard in the Court determining these petitions.
There is no need for a personal representative to be appointed for this petition to be decided: Paragraph 2 of the April 10, 2018 order appointing Federizo as special administrator states: “Special administrator is granted all those powers pursuant to Probate Code Section 8544.” PC sec. 8544(a) provides in relevant part: “…the special administrator has the power to do all of the following without further order of the court…(3) Commence and maintain or defend suits and other legal proceedings.”
Therefore, MV’s argument fails on the first point. However, his second point may have greater validity. Initially, it should be said that Federizo cannot weigh in on the petition where she was not named as a respondent. That said, if it was important to MV that she participate, he could have named her as a respondent on his petition and sought an order for her input on Movants’ petition. He has not done so. It is unclear whether Federizo is a necessary party especially for purposes of Movants’ petition where the funds in question if they are not property of MV may still be part of Decedent’s estate. However, where Federizo has already filed a petition for instructions related to disputed assets, her involvement on these further petitions may not be required. Where the Court has other reasons to deny this motion, the Court does not at least now reach this issue; however, the Court will discuss with the parties at the trial setting conference.
Continuance of Motion
As discussed below, there are already disputed issues that require this motion to be denied.
Effect of Admitted Matters Order and MV’s Standing
MV argues that while the order may preclude his recovery by right of survivorship or based upon community property set aside, it cannot determine whether he would have an interest in these funds by way of a bequest under Decedent’s will, or by intestate succession if Movants prevail on the will contest, while the petitions to admit the will and to contest it are still pending.2 Movants argue, however, how he might be entitled to the money in the account does not matter where even if he were to secure rights to these funds by these alternative ways it would still be as of the date of Decedent’s death – which is the date he admitted he had no interest.
Mannheim, supra, on which MV relies, addresses whether an unallocated portion of an estate should escheat to the State where there are no known heirs and concludes that consistent with the statute relating to escheat that the State’s interest is not determined until the time under the statute, consistent with the policy disfavoring property going by escheat, rather than as of the date of death, which would otherwise be the controlling date for determining to whom an estate should be distributed. Mannheim does not assist MV because the reason the date of death was not used there was by reason of a competing statute providing a different date. Here, there is no such competing provision.
The issue here is whether this court should find MV admitted he had no “interest” in the funds in the accounts pursuant to the several theories at issue when in fact he would not have known as of that date he did not have any such interest where all those petitions are still pending – even if the orders will be effective as of the date of death. (See In re: Chappel, 189 B.R. 489, 492 (9th Cir. 1995)) Inferring such an admission – with its various legal implications - particularly under the forced circumstances here - seems a bridge too far. Doing so would also be further disentitling MV to his day in court on the will petitions where Judge Small did not state specifically that this would be the effect of the order. Indeed, Judge Small initially had denied the motion altogether and only vacated that order after the intervention of the Court of Appeal by way of an alternative writ. Moreover, even after vacating the order denying the motion for the RFA’s to be deemed admitted, and denying the subsequent motion to withdraw the admissions, Judge Small seemingly sought to limit its scope:
In ruling on an earlier motion for summary adjudication of certain causes of action in MV’s cross-complaint in the related civil case, Judge Small made two significant rulings: First, that the admissions do “not avoid the implications of the no-transfer rule” discussed further below. Second, that though MV’s claim of mistake regarding the admissions may not hold up at trial, at least for purposes of that motion for summary adjudication, his claim of mistake created a triable issue, citing Kelsey v. Waste M’gmt of Alameda Co. (1999) 76 Cal.App.4th 590, 599-600, requiring denial of the motion. See December 30, 2022 order attached as Ex. H to Correll Decl.3 In other words, implicitly, Judge Small did not intend that MV have no standing any further to contest the underlying issues.
Moreover, review of St Mary v. Superior Court (2014) 223 Cal.App.4th 762, that Movants cite for applying the order here against MV, sheds greater light on the limitations on its use: The St Mary Court notes:
“We do not read the statutes governing RFAs in a vacuum. The purpose of the RFA procedure is to expedite trials and to eliminate
the need for proof when matters are not legitimately contested. (Cembrook, supra, 56 Cal.2d at p. 429, 15 Cal.Rptr. 127, 364 P.2d
303; Stull, supra, 92 Cal.App.4th at p. 864, 112 Cal.Rptr.2d 239.) The RFA device is not intended to provide a windfall to litigants.
Nor is the RFA procedure a “gotcha” device in which an overly aggressive propounding party—who rejects facially reasonable
requests for a short discovery extension and thereafter files the wrong discovery motion after service of a slightly tardy proposed
RFA response that is substantially code-compliant—may obtain a substantive victory in the case by having material issues deemed
admitted. RFAs are not to be deemed admitted unless the party to whom RFAs are propounded fails to respond prehearing to
RFAs in a manner that is substantially code-compliant (§ 2033.280, subd. (c)), or he or she is recalcitrant and violates a court order
compelling further responses that are deficient (§ 2033.290, subd. (e)). Furthermore, the order deeming admitted the 41 RFAs, to
the extent that it may substantially impact St. Mary’s ability to prove her case, undermines public policy that promotes controversies
being resolved through trials on the merits. (See New Albertson’s, Inc., supra, 168 Cal.App.4th at pp. 1420–1421, 86 Cal.Rptr.3d
457 [court’s discretion under § 2033.300 to grant party leave to withdraw or amend RFA responses based upon “mistake,
inadvertence, or excusable neglect” must be exercised consistently with “the spirit of the law and in a manner that serves the
interests of justice”; policy favoring trial on the merits dictates that any doubts be resolved in favor of party seeking relief].)”
Id., 223 Cal.App.4th at 783-784. Though the facts in St Mary present a less egregious problem than how MV and or his former counsel responded to the RFA here, these principles are still relevant.4 In particular, as discussed above, doubts must be resolved in favor of a party seeking relief from the admissions where to do is consistent with the policy favoring trial on the merits. (New Albertson’s v. Superior Court (2009) 168 Cal.App.4th 1403, 1420-1421)
Ultimately, the Court has the power to interpret the scope and effect of RFA admissions, and thus to determine that an admission is not binding on the point urged because ambiguous. CAL PRAC. GUIDE: Civil Trials and Evidence (TRG), sec. 1242, citing Fredericks v. Filbert Co. (1987) 189 Cal.App.3d 272, 278 (scope of admissions were ambiguous, and trial court properly admitted parol evidence to determine effect) The Court has discretion to admit evidence that explains the scope and effect of such an admission. Id. In this way, the court ensures that the RFA is not misused or as a device to hide or confuse issues. Id.
As discussed above, there are several layers of ambiguity here:
First, what Judge Small intended would be the effect of the order where his subsequent orders limit its scope.
Second, whether the legal fiction that MV had no interest in the accounts should mean he would also have no interest in the accounts should he recover under a will or by intestacy where that is not now known.
Third, as to which petition or all the petitions herein, this RFA order should apply. Likewise, whether it can apply also to the separate (be it related) Civil elder abuse action. (Admissions in response to RFA’s are binding only for purposes of the pending action. The admissions cannot be used in any manner in any other proceeding. Id., sec. 8:1240, citing CCP sec. 2033.410(b))5
Fourth, where this issue is raised in the context of a summary judgment motion, that turns on whether there is a triable issue of fact, and there is conflicting evidence as to ownership of the accounts discussed below, the Court may permissibly consider at least those facts that are not based upon affidavits controverting admissions. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 “does not countenance ignoring other credible evidence that contradicts or explains that party’s answers or otherwise demonstrates there are genuine issues of factual dispute.” See CAL. PRAC. GUIDE: Civil Procedure before Trial (TRG), sec. 10:156.15
Fifth, in determining the scope of the order, taking into consideration, on the one hand, giving effect to the order, and on the other hand, the competing policy of determining matters on the merits: Initially, the order must be given effect. This will be achieved at trial where MV will be precluded from testifying inconsistently to the facts set forth in his admissions. Similarly, Movants will no longer need to adduce further evidence from him (for example, by way of deposition, that they would need to defend against any testimony to the contrary.) MV will have his hands tied to his admissions. However, it is also apparent here that leaving aside how the order came about, as a general proposition, the admissions are inconsistent with the legal rights of a surviving spouse. “The weight given to the opposing party’s admissions of fact does not extend to mistaken legal conclusions. A party’s declarations may contradict earlier admissions of matters that are really conclusions of law.” Civil Proc. before Trial, supra, sec. 10:156.20 As discussed below, here, there are independent reasons that would require denial of each of the issues sought to be adjudicated.
Moreover, the Court is troubled by now determining the outcome of this case involving many millions of dollars based on what Judge Small found to be the frivolous and erroneous position taken by MV’s former lawyer.6 The Court has reviewed the declarations of Todd J. Bloomfield in opposition to the motion for an order that the matters be deemed admitted (Ex. 14 to Movants’ RJN,) as well as in support of the motion for leave to withdraw the admissions (Ex. 44 to Movants’ RJN). Bloomfield “falls on his sword” and takes responsibility for his error. He does not mention what role his client had in his decision making, if any. While Movants contend this issue arose to hinder enforcement of any potential judgment in Romania, Bloomfield at least asserted that this issue arose due to alleged disrespect felt by MV by Movants referring to him by a name he had recently changed in connection with coming to the U.S. Even assuming Judge Small rightly found Bloomfield’s claim lacking in credibility, there is no evidence or finding that MV himself directed his counsel not to respond to the RFA due to this issue. MV and Bloomfield were also assessed monetary sanctions for taking this erroneous position. This court will not extend the further issue sanction beyond what is required.7
Consequently, at least on this summary judgment motion, this Court cannot apply the admissions order either to bar MV’s petition seeking a determination he has a right to the proceeds in that account (Issue 1), to entitle Movants to summary adjudication on their petition (Issues 2 and 3) or more broadly, as Movants would have it, to hold MV now lacks standing to contest this case altogether.8
Right of survivorship in Accounts
The parties disagree related to whether a writing executed by Decedent is required for purposes of determining whether the funds in the account are property of her estate or flow to MV. The form of account determines right of survivorship under PC sec. 5303.
As O’Connor, supra, indicates, there are two different sorts of writings involved here: Initially, for the account to be treated as a “joint account,” under PC sec. 5203(a), as Movants argue, there needs to be a signature card, passbook, contract, or instrument establishing that sort of account. That writing can be satisfied however by a deposit contract, under PC sec. 5203(b). If there is a joint account, then, as MV argues, there does not need to be a further writing evidencing a testamentary intent or providing a right of survivorship to the surviving account holder. (PC secs. 5130, 5304) Rather, the account proceeds will go to the other account holder unless there is a clear and convincing indication of a different intent, under PC sec. 5302(a). Moreover, where the joint account holders are spouses, there is a presumption of community property whereby for that reason also the funds in the account would pass to the surviving spouse. Estate of Petersen (1994) 28 Cal.App.4th 1742. See also PC sec. 5203(a)(4)
Here, neither side has been able to present – though requested from BofA and Capital One – documents that would show definitively that Decedent intended these accounts to be joint accounts for purposes of PC sec. 5203. However, MV has presented some evidence by way of his Declaration indicating the records and actions of these financial institutions treating the accounts as joint accounts, including a letter dated March 27, 2019 specifically stating the BofA account is co-owned by Decedent and MV (Ex. A), referencing a Joint Ownership account opened September 18, 2018, as well as monthly BofA statements (Exs. B and C), and as to the Capital One Account, a statement showing him as joint account holder (Ex. D)9 and as the surviving account holder (Ex. E).
Conversely, Movants overstate their position in asserting that MV’s claim of a joint account “is refuted by the BofA Affidavit confirming it has no writing signed by Decedent authorizing a joint account or granting a right of survivorship.” (Motion, p. 10) In fact, the BofA custodian of records affidavit (Ex. 24 to Belsome Decl.) merely checks the box that “[a] thorough search has been conducted and no records could be located that are responsive to the subject matter, order or subpoena.” The affidavit does not refute the March 27, 2019 letter and does not even mention it.
That said, the testimony of Bonnie Angelini, the BofA custodian, is inconsistent with the statement of Claudia Gomez, who wrote the March 27, 2019 letter, as to BofA’s records.10 The Court cannot resolve this factual dispute on this motion.
In turn, Movants’ argument that there is no required writing showing MV would have a right of survivorship assumes the BofA account was not a joint account. At least for summary judgment purposes, there is at least an inference there were joint accounts. 11 In turn, if they are joint, as discussed above, no writing would be required by MV to show they would pass to him. Rather, the burden would be on Movants to show a different intent – that is not presented at least on this motion.
For these reasons, there is a triable issue of fact as to Issues 1, 2 and 3 in the Separate Statement that Movants sought to summarily adjudicate – all of which turn at least in part on how to characterize the accounts. 12 See Fact 3 on Issue 1 and Fact 4 on Issues 2 and 3 in the Separate Statement.
Right of Rescission
Peterson, supra, cited by Movants, does not support the claimed proposition that a notice of rescission, without more, would suffice here to return the gifts to them – as contended by Fact No. 11 in Movants’ Separate Statement on Issue 2 and by Fact no. 8 on Issue 3. The appeal in that matter concerned the effects of a trial that allowed rescission of music rights but did not discuss what issues were reached during that trial which led to that result.
Of more significance are the findings of Judge Small as to SH’s rights to the proceeds from sale of the Moreno property (in Ex. I to MV’s Decl.) (Issue 2 on the motion and in the Separate Statement) and as to the transfer of OTF shares by YCH to Decedent as a gift (in Ex. H to MV’s Decl.) (Issue 3 on this motion; Issue 4 in the Separate Statement).
Judge Small found there was a disputed issue of material fact as to what amount SH is entitled to recover from MH related to the proceeds from sale of the Moreno property.13 This dispute continues to be the subject of this motion. See Fact No. 8 in MV’s responsive Separate Statement on Issue 2 and compare MV Decl., paras. 6-9 with SH Decl., para. 28. Hence, the Court must deny the motion as to Issue 2.
In turn, Judge Small found there was a triable issue as to whether YCH made a gift where she may have retained some level of control by reason of the by-laws of OTF pursuant to which Decedent could not have transferred the shares without notice to OTF and the right of first refusal of other shareholders to purchase these shares.14 This dispute continues to be the subject of this motion. See Fact No. 11 in MV’s responsive Separate Statement on Issue 3 and YCH Decl., para. 15, noting by-laws restricting transfer of shares. MV relies on Judge Small’s order as one of the reasons this fact is in dispute.
Hence, the Court must deny the motion as to Issue 3 (Issue 4 in the Separate Statement).
In view of the foregoing, the Court does not now reach MV’s contentions that (1) MCH did not give Decedent a gift when he was ordered to do so by way of a judgment filed July 30, 2004 (in Ex. G to MV Decl.), (2) the transfer by YCH was not a gift where it was admittedly at the request of MCH. (YCH Decl. in Ex. J to Correll Decl.) or (3) Movants did not specify every element of a cause of action for fraud or mistake that might entitle them to rescind the transfers to Decedent.For these reasons, there are also triable issues of fact as to Issues 2 and 3 set forth in the notice of motion.
CONCLUSION
For these reasons, the Court denies the motion for summary judgment. In turn, the Court denies each of the issues sought to be summarily adjudicated.
Footnotes:
1 On February 22, 2022, Judge Small denied a motion by MV for leave to withdraw the deemed admissions.
2. Further, if the transfers in question were gifts adds further uncertainty: If they were not gifts, as MV asserts, that may mean the funds would be community property as opposed to her separate property and change the analysis as to the right to the funds in the accounts.
3. The Court is also mindful, however, of Judge Small’s comment in a separate order of December 30, 2022 (on SH’s motion for summary adjudication as to the cause of action involving her on MV’s cross-complaint in the same civil case) that the order is to have some effect where the reason it was not considered as part of that motion was its having been raised belatedly by way of a reply brief. See Ex. I to Correll Decl.
4. Significantly, in St Mary, the Court of Appeal granted a writ petition precluding the trial court from enforcing an order that would have had the effect of deeming the underlying facts admitted. Further, also cited by Movants - and by the St Mary Court - for the preclusive effect of admissions – Murillo v. Superior Court (2006) 143 Cal.App.4th 730 – was in fact a case where admissions could not be used because to do so would avoid the People having to meet its burden of proof in a sexual violent predator case - i.e., again showing the limits to the role of admissions to RFA’s. Similarly, Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429, cited in St Mary, notes the limitation of use of admissions “when matters are not legitimately contested.”
Here, MV is contesting for numerous reasons the conclusions Movants seek the Court to draw, including by way of independent evidence that the account was not a joint account. Whether those are “legitimate” bases to contest Movants’ petition remains to be seen. The Court is precluded from assessing credibility on a summary judgment motion.
5. Were the admissions applied in the Probate case, but not applied in the Civil case, over substantially the same issues, the Court would be faced with further potentially irreconcilable outcomes. Likewise, similar issues would arise were the admitted matters order to be applied on MV’s petition in this case (Issue 1 herein) but not on other petitions herein involving overlapping issues (Issues 2 and 3 herein).
6. Significantly, MV asks this Court to reconsider Judge Small’s order. However, Judge Small would likely not be deemed “unavailable,” within the meaning of that term, where he is still sitting on this Court, be it in a different assignment. (See Paul Blanco’s Good Car, et al. v. Superior Court (2020) 56 Cal.App.5th 86, 100) Therefore, the Court may not do so. Moreover, the Court of Appeal also had an opportunity to review what transpired here. That said, the focus of the writ proceeding related to the timing of the filing of amended RFA responses in the context of the Court continuing the hearing on the motion by one day, not with what practical effect the order should have.
7. Under CCP sec. 2023.030(b), relating to misuse of the discovery process (including RFA’s), a court may grant an issue sanction (what is at stake on this order) where the conduct was “willful.” There is no question the Court found Bloomfield’s decision willful, as opposed to mistaken (in denying the motion to withdraw the admissions); however, the Court was not able to locate any finding that MV himself took some willful action or ruling that action of counsel alone should lead to this severe further sanction against the client.
In addition, the issue sanction here may be tantamount to a terminating sanction – at least as Movants view the order. In this light, the following is relevant:
“The trial court should consider both the conduct being sanctioned and its effect on the party seeking discovery and, in choosing a sanction, should “ ‘attempt [ ] to tailor the sanction to the harm caused by the withheld discovery.’ ”… The trial court cannot impose sanctions for misuse of the discovery process as a punishment…. The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. “Discovery sanctions ‘should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery…. If a lesser sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the discovery process warrant incrementally harsher sanctions until the sanction is reached that will curb the abuse. “A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction.””
Doppes v. Bentley Motors (2009) 174 Cal.App.4th 967, 992
8. MV argues also that he would have standing where there has not an been an effective disclaimer under Probate Code sec. 278. Movants do not address this issue directly. Where there already other reasons the Court must deny the motion, the Court does not now reach this issue.
9. The parties do not discuss what significance, if any, there is in this statement also showing SH as a joint account name.
10. Movants objected to the admissibility of the letter on grounds of hearsay. However, at least at this juncture, it would appear admissible under the business records exception in Evid. Code sec. 1271.
11. The Court notes the BofA account was opened on September 18, 2018 – just a month before Decedent’s passing on October 18, 2018.
Movants contend in paragraphs 25 through 27 of their petition (filed November 16, 2020) that during this period MV was exercising undue influence over Decedent, including isolating her. In turn, in para. 32, they allege that MV opened the account on September 18, 2018 without a writing executed by Decedent. Conversely, para. 10 of MV’s cross-petition (filed September 26, 2022) alleges two medical professionals will rebut any claim of undue influence. Relatedly, the facts in the Separate Statement support of the motion do not however rely on the testimony in para. 10 of the MJL Decl. in support of the GAL application (in Ex. 49 to the Belsome Decl.), as to MV’s conduct during this time-period, nor upon the claim in footnote 9 of the Reply that “the family obtained LAPD videos in which MV admits responsibility for Decedent’s death.”)
It appears what type of account this was (and what occurred here that gave rise to Decedent’s suicide) depend on facts that will have to be determined at trial.
12. Calif. Rules of Court Rule 3.1350(b) requires the issues to be summarily adjudicated to be set forth in the notice of motion. The notice identified three issues. The Separate Statement, however, breaks down Issue 2 into two separate issues, with four issues to be decided. Ultimately, this is of no consequence where there are triable facts as to each of the four issues in the Separate Statement.
13. The Court recognizes that this motion was filed prior to these rulings. However, it is not clear why Movants elected to continue pursuing this motion where no evidence was provided why the court would not reach the same conclusion.
14. That said, it may be that this is still a gift if all shares were subject to the by-laws and YCH was not keeping any “strings” that would not otherwise be true of all shares. However, Movants have not addressed this issue for purposes of this motion. It appears this subject will be explored in discovery based on MV’s request for a continuance to do so and can be addressed at trial.
