Judge: John B. Scherling, Case: 37-2022-00048431-PR-TR-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 02, 2023

11/03/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Discovery Hearing (Probate) 37-2022-00048431-PR-TR-CTL IN THE MATTER OF THE KUTZNER TRUST, DATED JANUARY 7, 2000, AS AMENDED AND RESTATED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/30/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion to Compel Further Responses to Request for Production of Documents, Set Two, filed by Elizabeth Perez (ROA 54) is DENIED as moot.

Petitioner Elizabeth Perez' request for monetary sanctions is GRANTED in the amount of $3992.95.

Respondent Victoria O'Shea's request for monetary sanctions is DENIED.

I. BACKGROUND This case concerns the Kutzner Trust dated January 7, 2000 ('Trust'), created by Elizabeth Kutzner ('Settlor') and her husband James Kutzner, and as amended and restated on July 28, 2015.

On December 2, 2022, Elizabeth Perez ('Petitioner') filed a Petition for Orders: (1) removing trustee and appointing a professional fiduciary as trustee; (2) appointing an interim trustee; (3) compelling Victoria O'Shea to file a trust accounting; (4) terminating agent's authority to make health care decisions and appointing a professional fiduciary to make health care decisions; (5) surcharging Victoria O'Shea for breaches of fiduciary duty; (6) that Victoria O'Shea not use any trust funds for legal fees or trustee fees without a court order. (ROA 1.) Petitioner is one of Settlor's four surviving children, and the named successor trustee and remainder beneficiary under the Trust. Victoria O'Shea ('Respondent') is Decedent's daughter and Petitioner's sister.

The Petition alleges that a neurologist diagnosed Settlor with Alzheimer's disease and subsequently signed a statement under oath that Settlor was permanently incompetent to make health care decisions or manage her financial affairs. (ROA 1, Pet., at ¶ 10.) Under the terms of the First Amendment to the Trust, Anne Wolan is to continue as the sole trustee. (Ibid.) On information and belief, in March 2022, Settlor executed an amendment to her Trust naming Respondent as trustee or co-trustee and executed a new power of attorney for health care naming Respondent as her agent. (Id., at ¶ 11.) The Petition further alleges on information and belief that on October 3, 2022, Settlor and her son, James Zumwalt, went to Settlor's bank because Settlor wanted to remove Respondent from the Trust Calendar No.: Event ID:  TENTATIVE RULINGS

2984077 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KUTZNER TRUST, DATED JANUARY 7, 2000,  37-2022-00048431-PR-TR-CTL account but was told that she could not do so. (Id., at ¶ 12.) The bank confirmed that Settlor and Respondent were the named co-trustees on the account. (Ibid.) Respondent has refused to produce a copy of the trust amendment authorizing her to act as trustee and copies of any of the Trust account statements. (Ibid.) The Petition alleges that Respondent has asserted control over Settlor's care and possessions, including credit cards and car. (Id., at ¶¶ 11-16.) The Petition further alleges that Respondent has failed to provide adequate care for Settlor as her agent for health care decisions, endangering Settlor's health and safety, such as by failing to appear for her scheduled shift to care for Settlor and missing Settlor's appointments with the neurologist. (Id., at ¶¶ 17-18.) On February 28, 2023, pursuant to the stipulation of the parties and order of the Court, the Court 'appointed Kaitlyn Welling, LPF, as interim trustee and ordered that Victoria turn over copies of all trust records to Welling within ten days, or by March 10, 2023.' (ROA 41, Order.) On May 30, 2023, Petitioner filed the instant motion to compel further responses and for $5,609.95 in monetary sanctions (ROA 54, amended at ROA 67 and 69) pursuant to CCP § 2031.210 et seq., and 2023.010. (ROA 69, Corrected Amended Notice of Mot. and Mot.) On October 20, 2023, Respondent filed an opposition to the motion. (ROA 72.) On October 27, 2023, Petitioner filed a reply. (ROA 80.) II. DISCUSSION A. Compliance with the Rules of Court The Court notes that Petitioner's electronic exhibits fail to comply with CRC 3.1100(f)(4), which requires that unless submitted by a self-represented party, the electronic exhibits must 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 with Local Rules, rule 4.3.2.A.4, which requires that '[p]leadings that contain more than one exhibit attached must include electronic bookmarks with links to the first page of each exhibit and titles that identify the exhibit number or letter and briefly describe the exhibit.' (ROA 57, Tannenberg Decl.) The parties are expected to comply with all applicable rules in the future.

B. Argument Petitioner argues that on February 8, 2023, after receiving the accounting, she electronically served a Request for Production of Documents ('RFP'), Set One, on Respondent, requesting various financial records of the Trust and Settlor, and the source documents used to prepare the accounting.

Petitioner contends that on April 6, 2023, Respondent served her supplemental responses, which included a privilege log but did not include any index or other method of identifying the documents produced in responses to the requests.

Petitioner argues that counsel exchanged further emails on the sufficiency of the supplemental responses, and on April 21, 2023, attorney Wildman agreed to an extension to file the motion to compel to June 1, 2023, for further meet and confer. Further emails were exchanged, and on May 22, 2023, Respondent served her second supplemental responses. The responses to RFP, Nos. 24 through 36, 45, 47, 49, 50 through 57, 61 through 65, and 73, did not identify any documents produced or state that no documents could be located.

In opposition, Respondent argues that under the code, responses and documents were due to be Calendar No.: Event ID:  TENTATIVE RULINGS

2984077 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KUTZNER TRUST, DATED JANUARY 7, 2000,  37-2022-00048431-PR-TR-CTL produced by March 12, 2023 (within 30 days, plus two days of service), a Sunday, making the production date March 13, 2023. However, Petitioner specified that the documents be produced on March 15, 2023.

Respondent claims that on March 6, 2023, verified responses were produced with proof of electronic service, on Ms. Tannenberg, Mr. Schlesier, and Ms. Welling. Respondent argues the responses stated in part that Respondent would produce the responsive documents at a mutually convenient time and place, and that the clear inference was that Petitioner would receive the documents between March 6 and March 15, 2023.

Respondent contends that on March 10, 2023, verified responses were served in a CD-ROM containing all documents, by mail. Respondent states that 'not withstanding [sic] Victoria's objections, the CD-ROM and Flash Drive included all documents to ' [sic] include Responses to Requests 24 through 36, 45, 47, 49, 50 through 57, 61 through 66, and 73 that had been in the possession or control of Victoria when she executed her Verified Response to Production request on March 6, 2023.' (ROA 72, Oppo., at p. 3.) On March 13, 2023, these same responses were again served in a flash drive after Petitioner's counsel complained that she could not access the CD-ROM. Respondent's attorney again advised Ms.

Tannenberg that Respondent had produced everything in her possession and control.

On April 6, 2023, Respondent's counsel served a privilege log after Ms. Tannenberg requested one.

Petitioner filed the instant motion on May 30, 2023. Thereafter, Respondent served supplemental responses by mail on October 16, 2023.

In her reply, Petitioner argues that Respondent had possession and control of all the documents responsive to Petitioner's discovery request when Respondent prepared her initial responses in March 2023 because Petitioner's request sought the documents that were used to support the schedules for Respondent's court-ordered accounting in February 2023. 'In response, Respondent sent a 'document dump' on a flash drive, consisting of 55 pdfs, each of which contained various documents or parts of documents.' (ROA 80, Reply, at p. 2.) Petitioner argues that by serving third supplemental responses on October 16, 2023, which identified the documents responding to the remaining requests as required by CCP § 2031.280(a), Respondent has admitted that she was aware of this requirement, and that she failed to provide a code-compliant response until 18 weeks after a motion to compel had been filed, shortly before the hearing. Petitioner further argues that there is no substantial justification for failing to provide this supplemental response because Respondent could have served a code-compliant second supplemental response.

C. Analysis Here, based on the opposition and reply papers, it appears that production is no longer an issue, and monetary sanctions are the only issue to be resolved. Respondent claims all documents were produced and Petitioner only addresses sanctions in her reply. As such, the motion is DENIED as moot insofar as it requests further production.

As to sanctions, the Court finds sufficient meet and confer between counsel, as evidenced by the agreement to extend the deadline to file the motion to June 1, 2023 (ROA 57, Tannenberg Decl., Exh.

G), and the fact supplemental responses were served by Respondent as late as October 16, 2023, months after the motion was filed in May 2023.

Respondent claims that despite the burden of the request to supplement the second supplemental responses, because all documents in Respondent's possession had been turned over to Ms. Welling and the accounting had been prepared by Stacie Jarvis (a third party), she nevertheless complied by producing the third supplemental responses. Respondent argues that none of the production requests Calendar No.: Event ID:  TENTATIVE RULINGS

2984077 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KUTZNER TRUST, DATED JANUARY 7, 2000,  37-2022-00048431-PR-TR-CTL specifically identified the documents to be produced except as they related to the unincorporated Schedules, and none of the Schedules were attached to the Production Requests.

Petitioner argues the RFP was regarding the accounting Respondent filed in February 2023, and thus, Respondent already had all the information produced in the third supplement and should have produced the information as part of the second supplement.

RFP, Set One, seeks records related to the February 2023 accounting. (ROA 56, Separate Statement.) Thus, presumably, even if the accounting was prepared by a third party, Respondent would still have access to the information used to prepare the accounting, which Respondent filed with the Court.

Further, Respondent also produced a second supplement to the discovery request, indicating there was merit to Petitioner's request to supplement the initial responses. Thus, the Court finds Petitioner had substantial justification in filing the motion.

Petitioner's counsel declares that she spent 9.3 hours at her customary rate of $490 per hour to prepare the motion for a total sum of $4,557, and that she expects to spend another two hours preparing a reply and attending the hearing, for a total attorney fee of $5,537. (ROA 57, Tannenberg Decl., at p. 6.) Petitioner thus argues that with the $72.95 in costs, preparation of this motion, appearance at the hearing, 'and time spent in meet and confer activities totals $5,609.95,' which should be awarded to Petitioner as sanctions for her 'unjustified failure to provide appropriate responses to Petitioner's request for documents.' (ROA 55, Memo of Ps & As, at p. 11.) The Court finds that eight hours of time is appropriate for the preparation of the instant motion, the reply (which was limited given the subsequent production) and appearing at the hearing. Therefore, Petitioner's request for sanctions is GRANTED in the amount of $3920 in fees and $72.95 in costs, for a total sanction of $3992.95 against Petitioner and her counsel, to be paid within 30 days of this order.

Respondent also seeks monetary sanctions, arguing 'Respondent has shown all of the bases by task and calculation in 1/10th's of an hour for the attorney's fees for her attorney's services related to responding to Petitioner's inquiries regarding discovery and in opposing this Motion to Compel. The total attorney's fees through October 17, 2023, at her attorney's hourly rate of $500.00 per hour for opposing this discovery is $16,900.' (ROA 72, Oppo., at pp. 7-8.) The court shall impose a monetary sanction 'against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, 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 § 2031.320(b).) The Court finds sanctions against Petitioner, who acted with substantial justification, are not warranted under the circumstances. Therefore, Respondent's request for monetary sanctions is DENIED.

Counsel for 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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