Judge: John B. Scherling, Case: 37-2020-00021414-PR-TR-CTL, Date: 2023-10-20 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 19, 2023

10/20/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2020-00021414-PR-TR-CTL IN THE MATTER OF THE JOAQUIN LOPEZ TRUST DATED OCTOBER 23, 2013 CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/05/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling as to ROAs 203 and 209 is as follows: The Motions to Compel Further Special Interrogatories, Set Two, and Requests for Production, Set Two, are DENIED as moot.

The requests for sanctions are GRANTED.

BACKGROUND The case concerns the Joaquin Lopez Trust dated October 23, 2013 ('Trust'). Joaquin Lopez ('Decedent') died on October 11, 2019. Decedent was survived by his six children, including Norma Lopez ('Petitioner') and Jesus Lopez ('Trustee').

On June 19, 2020, Geraldina Lopez, a beneficiary under the Trust, filed a petition to remove Trustee as trustee and to appoint a successor trustee, or alternatively to appoint a co-trustee and for accounting.

(ROA 1.) This petition is set for a Trial Readiness Conference on April 11, 2023, and trial on April 29, 2023.

On September 10, 2020, Petitioner filed a petition alleging various claims against Trustee and seeking to invalidate the Trust. (ROA 12.) This petition was supplemented at ROA 109, and it is set for a Trial Readiness Conference on April 11, 2023, and trial on April 29, 2023.

On October 9, 2020, Trustee filed a Cross-Petition for: (1) Order Determining Norma Lopez Predeceased Decedent; (2) Financial Elder Abuse; (3) Claim to Real Property Held by Norma Lopez and Raymond Pacheco; (4) Conversion; (5) Unjust Enrichment; (6) Fraud; (7) Rent; and (8) Breach of Fiduciary Duty and Surcharge. (ROA 21.) On January 13, 2023, the Court sustained Petitioner's demurrer to this Cross-Petition without leave to amend. (ROA 147.) The Cross-Petition was taken off calendar on February 9, 2023. (ROA 194, Minute Order dated Feb. 9, 2023.) On June 5, 2023, Petitioner filed the instant motions to compel further responses to Requests for Production ('RFP'), Set Two, and Special Interrogatories ('SROG'), Set Two. (ROA 203, 209.) On October 9, 2023, Trustee filed an opposition to the motions. (ROA 240.) Calendar No.: Event ID:  TENTATIVE RULINGS

2982887 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOAQUIN LOPEZ TRUST DATED OCTOBER  37-2020-00021414-PR-TR-CTL On October 13, 2023, Petitioner filed her reply. (ROA 243.) DISCUSSION 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), and Local Rules, rule 4.3.2.A.4 (which provides that pleadings containing more than one exhibit must include electronic bookmarks with links to the first page of each exhibit and titles identifying and briefly describing the exhibit). (See ROA 203, 209, 240.) The parties are expected to comply with all applicable rules in the future.

Motions to Compel Petitioner moves for an order compelling further responses to the discovery propounded on Trustee on the ground that Trustee failed to make code compliant statements of ability to comply and asserted meritless objections which had already been waived. No privilege log has been provided to date, although Trustee asserted objections based on attorney client privilege and work product. Petitioner seeks $2,555 in monetary sanctions pursuant to CCP §§ 2023.030, 2031.300(c), and 2031.310(a)(1)-(3) for having to bring the instant motions.

Petitioner served the subject discovery on Trustee on March 16, 2023. (ROA 205, 211, White Decl., at ¶ 2; ROA 203, 209, Mot., Exh. 1.) Responses were due by April 17, 2023. Trustee sought an extension of time to respond, but Petitioner did not agree to an extension. (ROA 205, 211, White Decl., at ¶¶ 3, 4.) On April 19, 2023, Trustee served responses to the discovery consisting of blanket objections. (ROA 203, 209, Mot., Exhs. 3, 4.) Attorney for Trustee (Mr. Parks) thereafter explained to Petitioner's counsel (Mr. White) that supplemental responses were forthcoming and would be served 'well before the 5-22-23 potential deposition or mediation date.' (Id., at Exh. 5, Email dated Apr. 21, 2023, from attorney Parks.) Mediation took place on May 22, 2023, and the parties did not settle the matter. Trustee did not serve responses by May 22, 2023, as represented, and served supplemental responses on June 10, 2023, after the motions to compel were filed. (ROA 240, Oppo., Exh. 8.) Thus, the motions are moot in light of the supplemental responses already served on the propounding party.

However, the parties disagree regarding sanctions. Trustee argues the motions were unnecessary and Petitioner failed to sufficiently meet and confer prior to bringing the motions. Trustee argues that Petitioner did not agree to an extension of time to serve the responses and counsel was forced to serve blanket objections to meet the deadline. Attorney Parks represents that '[t]he emails on 4-20-23 were worded so as to imply discovery was not to be pursued prior to mediation and after mediation the only action was the Motions to compel.' (Id., at p. 3.) After the mediation, Trustee claims that he 'was expecting Petitioner would either request the supplemental discovery responses, propound new discovery or simply consider discovery completed for now. This is the reason for the meet and confer requirement as had Petitioner reached out post mediation we could have resolved the discovery dispute informally.' (Id., at p. 6.) Trustee refers to attorney White's email dated April 20, 2023, and argues that 'a reasonable person would believe as did [Trustee] that we should wait to see if Petitioner was going to ask for the supplemental responses,' and that Petitioner never tried to find out why Trustee had not sent the responses. (Id.) Here, Trustee's deadline to respond to discovery was April 17, 2023. Trustee served untimely responses on April 19, 2023, in the form of blanket objections. Attorney Parks represented that it was not their intention to respond with objections and that meaningful responses were forthcoming. Attorney Parks Calendar No.: Event ID:  TENTATIVE RULINGS

2982887 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOAQUIN LOPEZ TRUST DATED OCTOBER  37-2020-00021414-PR-TR-CTL stated that supplemental responses would be served well before May 22, 2023. However, Trustee did not serve supplemental responses by May 22, 2023, and did not serve them until June 10, 2023, after the motions were filed. There is no evidence Trustee contacted counsel to obtain an extension or informally settle any discovery issues. The parties did not agree to any extension to respond. As such, Trustee should have served supplemental responses by May 22, 2023, as stated in attorney Parks' April 21, 2023 email.

The Court is not persuaded that attorney White's email dated April 20, 2023, reasonably created the impression that discovery would be placed on hold pending mediation. In any event, if Trustee had any doubts regarding the state of discovery, attorney Parks should have reached out to attorney White for clarification, as it was Trustee's burden to respond to the pending discovery. Having stated that supplemental responses would be served before mediation, and not having done so, Trustee should have served responses or communicated with Petitioner's counsel regarding an extension or informal resolution. The Court finds Petitioner engaged in sufficient meet and confer prior to filing the motions.

(See ROA 203, 209, Mot., Exhs. 5.) Petitioner seeks $2,555 in monetary sanctions per motion, based on counsel's hourly rate of $365 and seven hours of attorney time (four hours in preparing and drafting the motion and accompanying documents plus three additional hours reviewing any objection, preparing any reply, and thereafter appearing at a hearing on this motion), for a total of $5,110 based on 14 hours of attorney time.

The Court finds counsel's hourly billing rate is reasonable, but the amount of time requested under the circumstances is not. Although two motions are before the Court, the motions are duplicative in many ways considering the overlapping arguments and meet and confer efforts. A single opposition and reply were filed. Thus, the efforts to respond to the opposition to the motions did not reasonably necessitate the predicted hours for the work involved. As such, the Court finds that nine hours of attorney time is reasonable and compensable under the circumstances.

Therefore, the request for monetary sanctions is GRANTED in the amount of $3,285.

Counsel to Petitioner 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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2982887