Judge Joel R Wohlfeil, Case 37-2019-00068031-CU-PN-CTL 2023-10-13 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2019-00068031-CU-PN-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 11, 2023

10/13/2023 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Professional Negligence Motion Hearing (Civil) 37-2019-00068031-CU-PN-CTL HOWELL VS COHAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Terminating Sanctions, 08/24/2023

The Motion (ROA # 95) of Defendant DARVY MACK COHAN ('Defendant') for an Order dismissing the action brought by Plaintiffs Erin N. Howell, Special Administrator of the Estate of Joseph A. Howell deceased, Joseph Howell, Jr. and Isabella Howell, by and through her guardian ad litem Patrick S.

Mackenzie (collectively 'Plaintiffs') or, alternatively, to preclude Plaintiffs from introducing any evidence regarding the issues on which discovery is outstanding (specifically, to preclude evidence that (1) Cohan was negligent; (2) Cohan caused Plaintiffs any damages; (3) Plaintiffs suffered any damages; (4) the Probate Court would have granted a Family Allowance during Cohan's representation; (5) the amount of a Family Allowance the Probate Court would have granted; (6) Plaintiffs provided Cohan with a list of expenses to prepare the Family Allowance Petition; (7) the Estate of Joseph A. Howell had sufficient funds to pay a Family Allowance during Cohan's representation; (8) when the Court would have awarded a Family Allowance and in what amount had a Family Allowance Petition been filed by Cohan; (9) money held in the Estate of Joseph A. Howell; (10) assets and expenses pertaining to the Estate of Joseph A. Howell; or (11) claims asserted against the Estate of Joseph A. Howell), and for an order for issue sanctions deeming that the following issues are determined in favor of Defendants - (1) Cohan owed no duty to Plaintiffs; (2) Cohan did not breach any duties owed to Plaintiffs; (3) Cohan did not cause Plaintiffs any damages; (4) Plaintiffs did not sustain any damages; (5) the Estate of Joseph A.

Howell was insolvent and had insufficient funds to pay a Family Allowance during Cohan's representation; (6) the Probate Court would have denied a Family Allowance Petition had it been filed during Cohan's representation; (7) Plaintiffs never provided Cohan with a list of expenses to include in a Family Allowance Petition; and (8) Cohan never promised to file a Family Allowance Petition, and for an order for monetary sanctions, is CONDITIONALLY DENIED IN PART AND GRANTED IN PART, as set forth below.

This Court's April 7, 2023 order states, in part: 'Plaintiffs are directed to serve verified Code-compliant responses, without objections ....' The responses that were eventually served by Plaintiffs are not Code compliant, as discussed below.

On the other hand, the Court has not yet ruled on any specific deficiency. Though exasperating from Defendant's perspective, the Court is reluctant to terminate this action (or effectively terminate it through a series of issue or evidentiary sanctions) without first permitting Plaintiffs to cure the specific deficiencies.

Therefore, the requested terminating, issue and evidentiary sanctions are denied on the condition that Plaintiffs serve supplemental, verified and Code compliant responses to the special interrogatories, form interrogatories and requests for production within twenty (20) days of this hearing.

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3012195 CASE NUMBER: CASE TITLE: HOWELL VS COHAN [IMAGED] 37-2019-00068031-CU-PN-CTL Specifically, Plaintiffs are ordered to cure the following deficiencies within the existing responses: First, it is improper to cite and incorporate previous responses into other responses. Each response must 'be as complete and straightforward as the information reasonably available to the responding party permits.' Code Civ. Proc. 2030.220(a).

A response that simply references other documents is improper. See Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783, 784.

As explained in a practice guide: 'PRACTICE POINTER: Sometimes several interrogatories appear to ask for the same information. It is usually not a good idea to answer, 'See my answer to Question No.

...' or 'I incorporate my answer to Question No. ...' The reason is that the questions may differ in some detail, so there is a chance that your prior answers will not be completely responsive to the present question. Take the time and trouble to provide a full answer to the present question.' Edmon & Karnow, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2023) at ¶ 8:1050.

All of the responses to the interrogatories and document requests that reference and attempt to incorporate other responses are insufficient. Each response must be complete and able to stand on its own.

Second, the responses to each sub-pat of the form interrogatories must be separately completed. It is improper to group these subparts, or to refer to other responses.

Third, the responses of minor Plaintiffs are improper and deficient. 'If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations ....' Code Civ. Proc. 2030.220(c).

'If a person cannot furnish details, he should set forth the efforts made to secure the information. He cannot plead ignorance to information which can be obtained from sources under his control.' Deyo v. Kilbourne, supra at 782.

The minor Plaintiffs are obligated to work with their attorney and guardian to respond to all requests to the extent this information is available.

As stated above, this Court's decision to forego terminating, issue or evidentiary sanctions is conditioned on the service of verified supplemental responses to the interrogatories and document requests that are Code compliant, without objections, and cure the deficiencies noted above.

Finally, the companion request for an award of monetary sanctions is GRANTED in the reasonable amount of $5,130.00. This award is payable jointly and severally by Plaintiffs ERIN N. HOWELL, Special Administrator of the Estate of Joseph A. Howell deceased, JOSEPH HOWELL, JR., and ISABELLA HOWELL, by and through their guardian ad litem PATRICK S. MACKENZIE. Plaintiffs' incomplete responses were served without substantial justification. Defense counsel's services were reasonable and necessary, and the hourly rate is reasonable.

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3012195