Judge: John B. Scherling, Case: 37-2021-00029236-PR-OP-CTL, Date: 2023-10-27 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 26, 2023

10/27/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Other Probate Matter Motion Hearing (Probate) 37-2021-00029236-PR-OP-CTL IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE OF LOUIS J. ALPINIERI DATED MARCH 26, 2017 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/21/2022

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Monetary Sanctions for Misuse of the Discovery Process (ROA 120) filed by Steven Alpinieri is DENIED.

Louis Alpinieri's evidentiary objections (ROA 314) to certain allegations in Steven's Memorandum of Points and Authorities and attorney Montisano's declaration in support of the motion are OVERRULED.

I. Background Louis J. Alpinieri ('Louis') and Brenda L. Alpinieri ('Brenda'), as trustors and original co-trustees, established the 1987 Alpinieri Living Trust under a Declaration of Trust dated June 27, 1987, which was restated on January 22, 2011. Louis and Brenda had two children: Steven J. Alpinieri ('Steven') and Andrea Alpinieri ('Andrea').

On July 7, 2021, Steven filed a Petition for Order Determining that the Acts of Andrea Alpinieri as Agent Under Durable Power of Attorney for Health Care are not Consistent with the Expressed Desires of Louis Alpinieri and for Removal of Andrea Alpinieri as Agent ('Petition'). (ROA 1.) The Petition was supplemented at ROA 236.

The Petition alleges: Andrea is acting under a durable power of attorney for health care executed by Louis; Louis is mentally compromised and may not have understood when he named Andrea as his agent; Andrea is unduly influencing Louis; Andrea has isolated Louis from Steven and his family; Steven's attempts to have contact with Louis have been thwarted by Andrea and the caregivers she has hired to monitor and control Louis; and Andrea has ordered the caregivers to enforce the isolation of Louis.

On September 21, 2022, Steven filed the instant motion for monetary sanctions for misuse of the discovery process. (ROA 120.) Steven moves pursuant to CCP § 2023.030 for an order imposing $2,500 in monetary sanctions against Louis and his attorney Jess R. Booth, counsel for Louis in this matter, on the grounds that Louis and Mr. Booth intentionally and in bad faith provided false responses in the Deposition Errata Sheet dated August 16, 2022, following Louis's deposition taken on July 5, 2022.

On May 17, 2023, Louis filed an opposition to the motion. (ROA 312.) Calendar No.: Event ID:  TENTATIVE RULINGS

3021362 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR  37-2021-00029236-PR-OP-CTL On May 30, 2023, Steven filed his reply. (ROA 321.) On July 5, 2023, the discovery referee issued the report and recommendation with respect to Steven's motion for sanctions. (ROA 338.) On July 14, 2023, Steven filed a timely objection to the discovery referee's report and recommendation.

(ROA 340.) On July 31, 2023, Louis filed a response to Steven's objection to the discovery referee's recommendation. (ROA 342.) II. Discussion A. Argument Steven claims the Errata pages submitted by Louis changed the responses to the deposition questions concerning his family history and relationship that he answered incorrectly. The reason stated in the Errata pages for the changes to the deposition responses is that Louis was unable to answer the questions accurately due to a traumatic event and the stress of the deposition, which caused him to misremember his family and the events in question.

Steven is informed and believes and thereon alleges that the deposition responses in the original deposition are a true reflection of Louis' ability to recall the events that were the subject of the deposition, and the responses provided in the Errata Sheet were not supplied by Louis, but instead, drafted by his attorneys and given to Louis to sign, to create the appearance that Louis' inability to answer the deposition questions correctly was not based on incapacity. Steven argues that the Errata pages are a misuse of the discovery process because they are an attempt to create a false appearance that Louis has mental capacity.

Steven requests that Louis be barred from using the Errata Sheet to replace his answers in the sworn deposition testimony, and requests $2,500 in monetary sanctions for the costs and attorney's fees incurred in having to bring this motion for sanctions and retake Louis' deposition.

Louis opposes the motion on the ground that pursuant to CCP § 2025.520(b), he has a statutory right to correct his deposition testimony. Louis argues that considering this statutory right and that Steven is represented by experienced litigation counsel, it appears the Errata motion is yet another attempt by Steven to harass and intimidate his father. Louis argues the Errata motion should be denied because Steven fails to offer any credible evidence that the responses in the Errata Sheet did not come from Louis. Louis has the capacity to comprehend the Errata Sheet. In support of the opposition, Louis submitted the declarations of his neurologist and primary care physician, who have opined that Louis is competent to manage his medical and financial affairs. (ROA 313, Booth Decl., Exhs. H & I.) The discovery referee concluded that '[s]imilar to the George [v. Double-D Foods, Inc. (1984) 155 Cal.App.3d 36 ('George')], Steven's remedy is not to exclude the Errata Pages of Louis' deposition, but to offer in evidence, during the trial, Louis' answers as they read before the corrections were made, since Steven believes they are material to the issue of Louis' capacity.' (ROA 338, Report & Recommendation filed July 5, 2023.) On July 14, 2023, Steven filed an objection to the discovery referee's report and recommendation. (ROA 340.) Steven argues that based on the particular nature of the dispute concerning Louis' capacity, the Court should disregard the discovery referee's recommendation.

In his reply, Steven claims that the deposition by oral examination has been Steven's only opportunity to evaluate Louis' capacity without the interference or influence of others. Steven contends that by allowing Calendar No.: Event ID:  TENTATIVE RULINGS

3021362 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR  37-2021-00029236-PR-OP-CTL Louis to submit written changes to his deposition answers, which are not corrections to mistakes but entirely different answers, the Court would be effectively reversing its order requiring Louis to appear in person. Steven argues that the only reason for Louis' appearance in person for his deposition is to document Louis' present, independent, unassisted ability to understand and recall personal information and relationships. The written responses in the Errata pages do not reflect Louis' current understanding and recollection of his family members and relationships, and they substantially undermine the integrity of the discovery process and the Court's order requiring Louis to appear in person.

Steven argues that George, supra, is distinguishable from the present matter because the primary purpose of taking Louis' deposition is substantially different than the deposition in George. Steven contends the issue in George was not the deponent's capacity, but the accuracy of the information itself.

Steven further argues that the discovery referee's recommendation that Steven offer the answers in evidence at trial is inadequate, as it deprives him of the essential purpose of having Louis appear in person for his deposition. If Steven offers the deposition answers in evidence, Louis' attorneys will simply counter this evidence by offering the Errata Pages, turning the issue into one of Louis' credibility.

B. Analysis A trial court is authorized to impose monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions against anyone engaging in conduct that is a misuse of the discovery process.

(CCP § 2023.030.) Monetary sanctions for misuse of the discovery process must be imposed unless the trial court finds the party subject to sanctions acted with substantial justification, or that other circumstances make the imposition of the sanction otherwise unjust. (CCP § 2023.030(a).) For 30 days following each notice that the original transcript of a deposition transcript is available, and unless otherwise agreed by the parties, 'the deponent may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.' (CCP § 2025.520(b).) When the referee is not appointed by the agreement of the parties pursuant to CCP § 638, 'the decision of the referee or commissioner is only advisory. The court may adopt the referee's recommendations, in whole or in part, after independently considering the referee's findings and any objections and responses thereto filed with the court.' (CCP § 644(b).) Having independently reviewed the discovery referee's report and recommendation, and the parties' motion papers and evidence submitted in context of the motion for monetary sanctions, the Court agrees with the discovery referee's conclusions and adopts the recommendation.

The issue in this motion is not Louis' capacity or lack thereof. It appears that Louis' deposition was intended to serve as an opportunity for Steven to inquire into Louis' capacity; however, the discovery procedure at issue is a deposition, and not a medical examination by a medical professional or individual who could provide a formal opinion as to Louis' capacity. As such, notwithstanding the nature of the underlying dispute concerning Louis' capacity, pursuant to CCP § 2025.520(b), Louis 'may change the form or the substance of the answer to a question, and may either approve the transcript of the deposition by signing it, or refuse to approve the transcript by not signing it.' The changes to Louis' responses in the Errata Sheet, regardless of whether those changes are considered legitimate, are authorized by statute. Thus, there is no basis to conclude Louis misused the discovery process, nor does Steven identify any discovery statute that was violated.

As noted in the discovery referee's recommendation, the holding in George, supra, as to the deponent's right to make changes is on point and Steven's remedy under the circumstances is to submit Louis' original responses at trial, for the Court to determine the reliability and weight of Louis' responses.

While not dispositive of the issue in the instant motion, Steven claims he has presented evidence the Calendar No.: Event ID:  TENTATIVE RULINGS

3021362 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR  37-2021-00029236-PR-OP-CTL Errata pages do not reflect Louis' ability to under the questions presented at the deposition, there is no such evidence presented. The only evidence Steven presented in support of the motion consists of the deposition transcript, the Errata Sheet, and correspondence dated September 13 and 15, 2022 from counsel. (ROA 122, Montisano Decl., Exhs. A-D.) There is no separate declaration from Steven, and the allegations in the memorandum of points and authorities attributable to Steven are based on information and belief. Steven did not present any reliable, corroborating evidence regarding Louis' capacity at the time of the deposition.

Thus, the Court agrees with the discovery referee's report and recommendation, and accordingly, adopts the recommendation with respect to the motion for sanctions. (ROA 338).

Therefore, Steven's motion for monetary sanctions is DENIED.

Counsel for Louis Alpinieri is ordered to serve written notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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