Judge: David J. Cowan, Case: 19STPB02306, Date: 2024-12-20 Tentative Ruling

Case Number: 19STPB02306    Hearing Date: December 20, 2024    Dept: 200

LOS ANGELES SUPERIOR COURT

WEST DISTRICT - BEVERLY HILLS COURTHOUSE

DEPT. 200

TENTATIVE RULING ON MOTIONS TO COMPEL PRODUCTION OF RECORDS BY NON-PARTIES   

In the Matter of the Clarence P. Loffarelli and Phyllis G. Loffarelli Living Trust, dated April 3, 2004, Case No. 19STPB02306 (related to Case No. 19STPB06111 and consolidated with 19STPB07349)

Hearing Date: December 20, 2024, Time: 8:30 a.m.

INTRODUCTION

          On March 12, 2019, John Loffarelli (“John”) filed a petition to recover from his brother Frank Loffarelli (“Frank”) seven pieces of real property itemized in the petition, title to which transferred to Frank upon the passing of their mother Phyllis Loffarelli (“Phyllis”) on November 8, 2018 based on Frank and Phyllis holding those properties in joint tenancy, as well as for related relief.[1] In summary, John contends Frank exercised undue influence over Phyllis in 2015 to persuade her to put those properties into joint tenancy with him. John contends that Phyllis intended that the properties should be part of the Clarence Loffarelli and Phyllis Loffarelli Trust dated April 3, 2004. Under the terms of that Trust, John is to receive a one sixth share of the Trust, together with his five siblings (or their children), namely, Frank, Thomas, Christopher, Diana and Daniel (and in the case of Christopher and Diana, their children).

          On May 15, 2019, Frank filed Opposition and Objections to the petition. Among other things, Frank asserts that Phyllis intended only that one different property be an asset of the Trust, not the seven referenced in the petition. Frank also denies exercising undue influence over Phyllis and contends that it was the other siblings who improperly sought to unsuccessfully persuade their mother to leave these properties for all of them. Indeed, Thomas has previously sought the same relief as John does here, on which complaint Thomas did not prevail.[2] The Trust has a no-contest clause disentitling any beneficiary who challenges the Trust.

CONTENTIONS

          On November 20, 2024, John filed three motions to compel production of business records from respectively, AT & T, American Express Co. and Direct Resources Insurance Administrative Services (“Direct Resources”).

          As concerns the AT & T motion, John contends that he is seeking phone records for a six-month period in 2015 (when the joint tenancy deeds were executed) from Martha, a non-party (but an interested person as Frank’s wife), as well as the individuals and company involved in drafting the deeds, David Litt, Teresa Litt and their business, Select Mortgage. Martha objected to signing releases for production of the release of the records – necessitating this motion.[3] John references deposition testimony confirming Martha’s involvement in Phyllis’ execution of the deeds, notwithstanding Martha stating that she “had no involvement” with the transactions at issue and that the subpoena to AT & T violated her right of privacy. John argues that the documents sought may reasonably lead to the discovery of admissible evidence, including corroborating or disputing deposition testimony, and that Martha’s involvement, if any, is directly tied to what level of involvement Frank had – the key issue in this case. John contends this need outweighs any privacy right Martha has in these records.  

          On December 9, 2024, Frank and Martha filed opposition to the motion directed to AT & T. They assert that this request is a “fishing expedition,” that the basis for the motion is mere speculation that she was a “conduit” between Phyllis and the Litts / Select and that as a non-party Martha’s rights of privacy in these records should prevail here. They assert also that any communications with the Litts / Select would only be relevant as far as Frank is concerned (not her) and that John has already taken her deposition (as well as of David Litt) and could have then asked them questions concerning any communications that would be in these records.

          On December 13, 2024, John filed a Reply in support of the AT & T motion. He notes that Martha’s claim she was not involved in these transactions is belied by her signing interspousal deeds at the same time and driving Phyllis on three occasions to execute the deeds.

          As concerns the American Express motion, John seeks to find out if Frank made any transactions on any credit card for Phyllis or the Trust in 2015 pursuant to Frank also having been made a joint holder of that account. David Litt and Teresa Litt asserted objections to the subpoena to American Express, stating they had nothing to do with this request.

          As concerns the Direct Resources motion, John contends that Frank may have changed the ownership of, or the designated beneficiary of, a life insurance policy for Phyllis. David Litt and Teresa Litt asserted objections to the subpoena to Direct Resources, stating they had nothing to do with this request.

          No opposition was filed timely or at all to the motions directed to American Express and Direct Resources. 

DISCUSSION

          Under CCP sec. 1987.1(a), courts are to balance the constitutional right of privacy (see Vinson v. Sup. Court (1987) 43 Cal.3d 833, 841) as against need for relevant information reasonably calculated to reveal admissible evidence. (Valley Bank of Nevada v. Sup. Ct. (1975) 15 Cal.3d 652, 655-656) The right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion. (Hill v. Nat’l. Collegiate Athletic Ass’n (1994) 7 Cal.4^th 1, 35-37, Puerto v. Sup. Ct. (2008) 158 Cal.App.4^th 1242, 250)  If the intrusiveness of the discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence, the Court may limit the scope of the request. (CCP sec. 2017.020(a)) The burden is on the party seeking records. (Britt v. Sup. Ct. (1970) 20 Cal.3d 844, 852-853, 859) Mere speculation will not meet that burden. (Davis v. Sup. Ct. (1992) 3 Cal.App.4^th 1008, 1017) Courts should also consider whether the requested information can be secured through non-confidential sources. (Harding Lawson Assoc. v. Sup. Ct. (1992) 10 Cal.App.4^th 7, 10)

          The Court applies these rules as follows:

          As concerns the AT & T motion, initially the Court finds Martha, though a non-party, has a lessened reasonable expectation of privacy where this case concerns her husband, who is a party, and whose interests are on some level presumably allied with hers. John in fact alleges she acted as a conduit between her husband’s mother and the Litts / Select. Further, John has presented evidence rebutting her statement that she was not involved here, including her concurrently signing interspousal deeds and driving Phyllis to execute the deeds on several occasions. Hence, the motion is not based only on conjecture, as Frank argued. John has a right to seek this follow-up evidence to evaluate the truthfulness of the testimony to date. In contrast, what involvement she had is relevant to Frank’s involvement – the main issue in this case. In turn, where the validity of Martha’s statement is in question, John has a right to secure independent evidence that may support or rebut his claims. Finally, the objections of the Litts / Select lacks basis where it is their clients’ privacy rights that area at stake in the production, not theirs. In this regard, these records are not solely those of Frank but also belong to Phyllis’s estate. Where the competing petitions between John and Frank to serve as administrator of Phyllis’s estate are still pending, determining what her records show may also be useful to determining those petitions.      

          As concerns the American Express motion, there is no opposition. The objection of the Litts / Select is without merit for the same reasons as above. In addition, they would have no reason to be concerned about records of a different company. There is good cause for production of these records in view of the parallel claim that Frank wrongfully induced Phyllis to put him on title as joint tenant. This evidence may show if Frank was using his mother’s money.

          As concerns the Direct Resources motion, again there is no opposition. The objection of the Litts / Select is without merit for the same reasons as above. In addition, they would have no reason to be concerned about records of a different company. There is good cause for production of these records in that this is a parallel claim to conversion of another asset of Phyllis; i.e., a life insurance policy, around the same time. This evidence may shed light on execution of the deeds.

           Thus, John has met his burden. The Court finds based on the facts here that John’s need for further information to determine the truth of what occurred here “clearly” outweighs Frank and Martha’s lessened privacy interests, justifying the limited intrusion requested.

 CONCLUSION

          For these reasons, the Court grants each of the three motions. John shall submit a proposed order.