Judge John B. Scherling, Case 37-2022-00013507-PR-LA-CTL 2023-08-15 Tentative Ruling

Judge: John B. Scherling, Case: 37-2022-00013507-PR-LA-CTL, Date: 2023-08-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - July 27, 2023

07/28/2023 02:00:00 PM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Letters Of Administration Motion Hearing (Probate) 37-2022-00013507-PR-LA-CTL ESTATE OF MARGARET MCCORVEY NEAL [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/23/2023

Pursuant to San Diego Superior Court Rule 4.23.7, the court's tentative ruling is as follows: Robert Lacey Lee's Motion to Compel Responses to Request for Production of Documents; and Request for Monetary Sanctions Against Cassandra Lee-Austin (ROA 93) is GRANTED.

Robert Lacey Lee's Motion to Compel Responses to Request for Special Interrogatories; and Request for Monetary Sanctions Against Cassandra Lee-Austin (ROA 100) is GRANTED.

- Background: There are two pending petitions in this matter: (1) a Petition for Letters of Administration With Authorization to Administer Under the Independent Administration of Estates Act filed by Robert Lacey Lee (hereinafter 'Robert') (ROA 1); and (2) a Petition for Probate of Will and for Letters Testamentary With Authorization to Administer Under the Independent Administration of Estates Act filed by Cassandra Lee-Austin (hereinafter 'Cassandra'). (ROA 7.) On November 23, 2022, Robert served Cassandra with requests for production, requests for admission, form interrogatories, and special interrogatories. The following is a timeline of the parties' efforts regarding this discovery: - On January 3, counsel for Cassandra contacted counsel for Robert requesting an extension to file responses. The parties agreed to extend the deadline for Cassandra to respond to the discovery to January 17, 2023.

- On January 17, 2023, Cassandra served responses.

- On February 27, 2023, counsel for Robert sent a meet and confer letter identifying perceived deficiencies in the responses.

- The parties agreed that Cassandra would provide supplemental responses by March 20, 2023.

- On March 20, 2023, Cassandra requested a further extension to submit further responses.

- After considerable back and forth, Cassandra provided unverified responses on April 7, 2023.

- On April 21, 2023, Cassandra provided further responses with verifications.

- On May 12, 2023, Counsel for Robert sent correspondence addressing the objections raised in the further responses.

- On May 22, 2023, Robert filed a motion to compel responses to request for special interrogatories.

- On May 23, 2023, Robert filed a motion to compel responses to request for production.

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2978130 CASE NUMBER: CASE TITLE: ESTATE OF MARGARET MCCORVEY NEAL [IMAGED] 37-2022-00013507-PR-LA-CTL The motions to compel seek supplemental responses to the requests for production without objection, supplemental responses to the special interrogatories without objection, and sanctions in the total amount of $5,940. (ROA 93, 100, 105, replies at ROA 112, 113.) Cassandra has filed one opposition to the motion to compel responses to special interrogatories. (ROA 111.) She states that she has provided complete responses to both sets of discovery and that her responses are code compliant.

- Analysis: - Order Compelling Responses: Failure to timely respond to requests for production and interrogatories results in the waiver of all objections and authorizes the propounding party to move for an order compelling responses. (CCP §§ 2030.290, 2031.300.) Generally, all unprivileged information that is relevant to the subject matter of the action is discoverable if it would itself be admissible evidence at trial or if it appears reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010.) If the demanding party determines that a response to an interrogatory or request for production is incomplete or contains objections that lack merit, it may move for an order compelling further responses.

(CCP §§ 2031.310(a), 2030.300(a).) A motion seeking further responses to a request for production must set forth specific facts showing good cause justifying the discovery sought. (CCP § 2031.310(b)(1).) - Requests for Production of Documents Robert's unopposed motion to compel responses to Request for Production of Documents is granted.

Even if the motion were deemed opposed, Cassandra first contacted Robert regarding an extension on January 3, 2023, after the deadline to respond had passed and therefore waived any objections. (CCP § 2030.209.) Accordingly, within 20 days from the date of service of this order, Cassandra must serve supplemental responses, without objections. (Code Civ. Proc., § 2031.300, subd. (a).) Within the same time period Cassandra shall also produce all documents responsive to Robert's document request.

- Interrogatories The Interrogatories were served on November 23, 2022. Cassandra first contacted Robert regarding an extension on January 3, 2023, after the deadline to respond had passed. (CCP § 2030.290.) Therefore, Cassandra has effectively waived all objections, and should serve supplemental responses without objections.

Additionally, in response to Special Interrogatories 4, 5, 7, 8, 11, and 12 Cassandra states in some form that she has no personal knowledge sufficient to answer the interrogatories. For example, Interrogatory 4 asks: 'Identify all withdrawals you performed from any financial accounts of Margaret McCorvey Neal in the last ten years of her life to present.' She responds in part that '[s]he has no personal knowledge sufficient to identify withdrawals she performed from any financial accounts of Margaret McCorvey Neal ('Margaret') in the last ten years of her life to present.' In her opposition papers she relies on CCP § 2030.220(c) to support her response, which states: 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, except where the information is equally available to the propounding party.

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2978130 CASE NUMBER: CASE TITLE: ESTATE OF MARGARET MCCORVEY NEAL [IMAGED] 37-2022-00013507-PR-LA-CTL However, Cassandra neglects to follow the rest of section 2030.220: - Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits.

- If an interrogatory cannot be answered completely, it shall be answered to the extent possible.

(CCP § 2030.22(a)-(b).) Even if Cassandra lacks personal knowledge, she undoubtably has some information which would be responsive including identity of banks, types of accounts, general timeframes, etc. Accordingly, Cassandra is ordered to serve supplemental code-complaint responses without objections to the subject special interrogatories within 20 days of the date of this hearing.

- Sanctions: The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel responses, or one who misuses the discovery process, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (CCP §§ 2031.300(c), 2030.300(d), 2023.030(a).) Failing to respond to an authorized method of discovery is a misuse of the discovery process. (CCP § 2023.010(d).) 'The party subject to sanctions bears the burden to establish it acted with substantial justification or other circumstances make the imposition of the sanction unjust.' (Padron v. Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1269.) Cassandra did not request an extension to respond to discovery until after the deadline to respond had passed. This constitutes a misuse of the discovery process. Cassandra has not opposed the motion to compel request for production and has therefore not carried her burden in showing that she acted with substantial justification or that other circumstances make sanctions unjust. In Cassandra's opposition to the motion to compel interrogatory responses, she neglected to address CCP §2030.220(a) and (b) which required her to provide more complete responses. Sanctions are therefore warranted.

Robert seeks a total of $5,840, which is based on $2,920 for the motion regarding the requests for production and $2,920 for the motion regarding the special interrogatories. This is based on 16 hours of attorney work at the hourly rate of $365. The amount sought generally is reasonable, except that 3 of the hours are for reviewing and responding to an opposition to the motion to compel request for production; however, no opposition was filed and Robert filed a relatively simple reply / notice of non-opposition.

Likewise, the reply filed for the motion to compel interrogatory responses should not have required 3 hours. The court will therefore reduce the sanction award by 3.5 hours. Accordingly, sanctions in the amount of $4,562.50 are awarded jointly and severally against Cassandra and her attorneys. Sanctions shall be paid to counsel for Robert within 60 days of the date of this hearing.

The minutes constitute the order of the court, and no formal order is required.

Counsel for Robert is directed to serve notice of ruling in accordance with the provisions of Code of Civil Procedure § 1019.5(a).

IT IS SO ORDERED.

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