Judge: John B. Scherling, Case: 37-2022-00001299-PR-TR-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 12, 2023

10/13/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2022-00001299-PR-TR-CTL IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED JULY 12, 2021 IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/07/2023

Pursuant to Superior Court of San Diego County Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Monetary Sanctions filed by Asifa Hashmi is GRANTED IN PART and DENIED IN PART.

I. Background This case concerns the Ashfaq Malik Revocable Living Trust Dated July 12, 2021 ('Trust'). Ashfaq Malik ('Decedent') died on July 21, 2021. He was survived by his wife, Asifa Hashmi ('Petitioner').

On January 12, 2022, Petitioner filed a 'Verified Petiton [sic] Under Cal. Probate Code Section 17200 Challenging Validity of Trust Based on Undue Influence and Mistakes of Fact; Imposition of Constructive Trust and Request for Accounting' ('Petition'). (ROA 1.) The Petition alleges the Trust is invalid based on mistake of fact and undue influence from Decedent's sister, Riffat S. Ahmed, and Decedent's brother-in-law, Farrukh I. Ahmed (collectively 'Respondents').

On June 17, 2022, the Court sustained Respondents' demurrer to the Petition with leave to amend on the ground that it was barred by the statute of limitations in Probate Code § 16061.8. (ROA 38.) On July 28, 2022, Respondents filed 'Petition for: (1) Ejectment from Real Property of the Trust; and (2) Attorney Fees and Costs. (ROA 39.) On September 28, 2022, Petitioner filed a 'Verified First Amended Petition: 1.) For an Order to Transfer Real Property and Issue Statutory Damages Under Probate Code §§ 850(3)(A), 856, 859; 2. For an Order Challenging Validity of Trust Based on Undue Influence and Mistakes of Fact Under Probate Code § 17200; 3. For Imposition of Constructive Trust and Request for Accounting Under Probate Code §§ 17200 (A) and 17200 (B)' ('FAP'). (ROA 48.) The FAP seeks to invalidate the Trust on the same grounds as the Petition, and it adds a new claim that Petitioner has a community property interest in the real property located at 1316 Kiso Glen, Escondido, CA ('Property').

The April 6, 2023 Court minutes state that the '[p]arties stipulate to private mediation and should occur not later than 07/21/2023.' (ROA 116, Taylor Decl., Exh. A; ROA 92, Minute Order dated Apr. 6, 2023.) Pursuant to an August 2, 2023 ex parte minute order with respect to Petitioner's request for sanctions, the Court ordered as follows: Calendar No.: Event ID:  TENTATIVE RULINGS

3009601 CASE NUMBER: CASE TITLE:  IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED  37-2022-00001299-PR-TR-CTL The court advises the parties that – without prejudice to the request – the court will not be imposing sanctions at the August 25, 2023 Case Management Conference based on the request of Asifa Hashmi in her Case Management Statement filed July 21, 2023 (ROA 101, supported by the ROA 100 Declaration of Shannon N. Taylor) for sanctions in connection with the failure of mediation to occur in this matter as ordered by the court. Ms. Hashmi may file and serve a motion for sanctions (including the precise relief requested with supporting legal and factual bases) to be heard in due course if the parties are unable to resolve the matter.

Alternatively, if Ms. Hashmi files and serves a motion for sanctions (including the precise relief requested with supporting legal and factual bases) so that it is received by counsel to Farrukh Ahmed and Riffat Ahmed not later than August 7, 2023, the matter may be set for hearing on August 25, 2023 at 2:00 with the hearing on ROA 93. Any opposition then is to be filed and served for receipt by counsel to Ms.

Hashmi not later than August 15, 2023, and any reply is to be filed and served not later than August 18, 2023.

(ROA 113, Minute Order dated Aug. 2, 2023.) On August 7, 2023, Petitioner filed the instant motion for sanctions (ROA 115), but it ultimately was set for hearing on October 13, 2023 by the Probate Business Office (ROA 118). Petitioner moves for an order imposing $12,250 in monetary sanctions against Respondents and their attorney pursuant to CCP §§ 128.5 and 177.5 on the grounds that Respondent and their attorney Mindy Galindo intentionally and in bad faith failed to participate in the mediation process to which the parties stipulated and did not comply with the Court's order to participate in mediation by July 21, 2023.

On September 26, 2023, Respondents filed an opposition. (ROA 139.) On September 29, 2023, Petitioner filed a reply. (ROA 141.) II. Discussion Courts are authorized to impose sanctions to control the improper resort to the judicial process, including for 'any violation of a lawful court order by a person, done without good cause or substantial justification.' (CCP § 177.5.) Further, '[a] trial may order a party, the party's attorney, or both, to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.' (CCP § 128.5(a).) A. Argument Petitioner argues that Respondents completely disregarded the Court's order directing the parties to participate in mediation and failed to respond to Petitioner's counsel's attempts to coordinate the mediation, demonstrating bad faith on the part of Respondents and their counsel, Ms. Galindo.

Petitioner further claims that because of the failed mediation scheduled for July 10, 2023, Petitioner incurred $5,450 in costs associated with the mediation and $2,875 in attorney's fees. Further, Petitioner has incurred $2,425 in additional costs and attorney's fees to bring this motion for sanctions. Petitioner also seeks $1,500 in sanctions as to each Respondent and counsel pursuant to CCP § 177.5. Petitioner argues the mediation was intended to facilitate resolution of this case, and Respondents' failure to make any attempt to conduct the mediation was intended to cause unnecessary delay in resolving this case.

Respondents oppose the motion, arguing that although the Court ordered mediation on April 6, 2023 based on the parties' continued disagreement regarding Respondents' statute of limitations defense, attorney Galindo 'realized that it would be fruitless to go to mediation until this question was resolved.' (ROA 139, Oppo. at p. 2.) Calendar No.: Event ID:  TENTATIVE RULINGS

3009601 CASE NUMBER: CASE TITLE:  IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED  37-2022-00001299-PR-TR-CTL Respondents further argue that their attorney made it very clear beginning on May 8, 2023, that Respondents were not open to mediation considering the position of the parties and the motion for summary judgment that was filed at the end of May, which was set for hearing on August 25, 2023. (Id., Exhs. 1, 2.) Attorney Galindo informed West Coast Resolution on June 1, 2023, that a motion for summary judgment was pending and Respondents would not be attending the mediation scheduled for July. (Id., Exh. 3.) On June 2, 2023, Ms. Purcell from West Coast Resolution sent a confirmation email to counsel stating that Respondents and their counsel would not be attending the mediation nor paying the mediation fee. (Id., Exh. 4.) Respondents state that attorney Galindo had at least one telephone conversation with attorney Taylor in which she tried to explain that mediation at that point would be a waste of time and money, but attorney Taylor dug in her heals and scheduled the mediation regardless.

Respondents further assert that the matter of mediation could have been raised at the next case management conference, then set for August 3, 2023.

B. Analysis It cannot be disputed that on April 6, 2023 the Court and the parties contemplated that the private mediation would occur not later than July 21, 2023, as ordered by the Court. (ROA 92, Minute Order dated Apr. 6, 2023.) The evidence submitted by the parties, however, shows that counsel subsequently did not agree to a date for mediation. (ROA 116, Taylor Decl., Exhs. B-G, K, J; ROA 139, Oppo., Exhs.

1-2, 4.) As early as May 8, 2023, attorney Galindo indicated Respondents were not open to mediation, and did not agree to any dates for mediation. Attorney Galindo explained that given the motion for summary judgment, mediation would not be productive. Further, the email dated June 2, 2023, sent from the mediator to both counsel notes that Respondents will not be attending the mediation.

Occasionally, for a variety of reasons, parties may not accomplish mediation by a date previously ordered by the Court. If the parties are in agreement that the mediation cannot be accomplished by that date, the parties most reasonably may file a stipulation and order extending the mediation and other applicable dates or file an ex parte application for such relief. Alternatively, while not optimal, parties in agreement that more time is needed may address the issue at their next court appearance, with a new mediation deadline to be set at that time.

In the instant case, attorney Galindo determined that she and her client would not participate in the mediation, thus unilaterally ignoring the Court's order that mediation should occur not later than July 21, 2023. In that regard, the court observes that a pending motion – even if potentially dispositive – does not necessarily preclude mediation, and in some circumstances, mediation actually may facilitate a settlement. That determination may be a matter for attorney judgment under the particular circumstances of the case. Here, in any event, with Respondents unilaterally seeking to delay the court-ordered mediation deadline, attorney Galindo should have approached the Court for relief from the Court's order.

Attorney Galindo did, however, communicate her position to attorney Taylor and West Coast Resolution well before the mediation, so both West Coast Resolution and Petitioner were on notice that Respondents were not planning on mediating before the hearing on their pending motion for summary judgment. Nonetheless, despite Respondents making it clear well before the scheduled mediation date that they would not be open to mediation, Petitioner proceeded to incur the various costs now sought to be recouped as sanctions via the instant motion, by forging ahead with the mediation on July 10, 2023, which plainly was not going to take place. Under these circumstances, the Court finds that the majority of the sanctions sought by Petitioner – which relate to a mediation that obviously was not going to happen – were not proximately caused by Respondents or attorney Galindo engaging in 'actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.' (CCP § 128.5(a).) However, for the reasons discussed above, Respondents are not without blame, and the Court finds that the conduct of Respondents and attorney Galindo were in violation of the Court's April 6, 2023 order and did cause attorney Taylor to reasonably spend some time dealing with Respondents' refusal to mediate as ordered by the Court. As Respondents' actions were in violation of the Court's order and, given that Calendar No.: Event ID:  TENTATIVE RULINGS

3009601 CASE NUMBER: CASE TITLE:  IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED  37-2022-00001299-PR-TR-CTL (i) Petitioner was not in agreement with delaying the mediation, and (ii) Respondents sought no relief from the order, Respondents acted without substantial justification. The Court thus GRANTS IN PART the motion, awarding Petitioner $800 in sanctions. The Court otherwise finds that the remaining claimed attorney fees and costs are not substantiated, and the motion therefore is DENIED IN PART.

As the instant motion is granted in part, Respondents' request for sanctions for opposing the motion (ROA 139) is DENIED.

Counsel for Petitioner is directed to serve notice of this ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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