Judge: H. Jay Ford, III, Case: 19SMCV02061, Date: 2023-04-18 Tentative Ruling

Case Number: 19SMCV02061    Hearing Date: April 18, 2023    Dept: O

Plaintiff US Real Estate Holdings III-A LP ("USRech")'s Motion to Compel Compliance is GRANTED.

Plaintiff and Defendants Dusty Berke, as Trustee for the Stuart Rubin Children's Trust and SRCT Holdings, LLC entered into a stipulation and order on 2-1-23 whereby the following depositions would be taken according to the schedule set forth therein:  (1) Stuart Rubin during the last full week of February 2023 at 10 am; (2) Lauren Heimer on or around 3-1-23; and (3) Dusty Berke on 3-3-23.  The Court executed the order on 2-2-23.  The schedule of depositions agreed upon in the stipulation could only be amended by unanimous consent of all parties.  USRECH also subpoenaed and noticed the depositions of these individuals for 2-22-23 (Rubin), 3-1-23 (Heimer) and 3-3-23 (Berke).  See Dec. of C. Rivas, para. 3.  

Rubin and Heimer are not parties to this action, nor were they parties to the stipulation and order.  Rubin and Heimer were served with deposition subpoenas.

Berke is a party to this action as the Trustee for the Stuart Rubin Children's Trust and he entered into the stipulation.  Berke was served with a Notice of Deposition, not a deposition subpoena. 

Rubin, Heimer and Berke are ordered to attend their depositions within 10 days.  

USRech requests sanctions in the amount of $16,519 against Defendant Stuart Rubin Children's Trust and its counsel Peckar & Abramson, P.C. pursuant to CCP s. 2025.440(b).  However, section 2025.440(b) applies to a deponent's failure to complly with a deposition subpoena, not a party's failure to comply with a notice of deposition.  A party deponent's failure to appear is governed by CCP 2025.450.  In addition, the Trust is not a legal entity.  A probate or trust estate is not a legal entity; it is simply a collection of assets and liabilities. As such, it has no capacity to sue, be sued or defend an action. Any litigation must be maintained by, or against, the executor, administrator or trustee of the estate.  See Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1344 .  Berke is the Trustee of the Trust but he is not identified in the notice requesting sanctions.

USRech's request for sanctions is DENIED for failure to cite applicable authority for imposition of sanctions against the Trust and the failure to properly identify the individual against whom it seeks sanctions.