Judge Michelle Williams Court, Case 22STCV32711 2023-01-05 Tentative Ruling

Judge: Michelle Williams Court, Case: 22STCV32711, Date: 2023-01-05 Tentative Ruling

Please notify Dept. 1’s courtroom staff by email (SMCDept1@lacourt.org) or by telephone (213-633-0601) no later than 8:30 a.m. the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. If you submit on the tentative, you must immediately notify the other side that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motion. Please keep in mind that appearing at the hearing and simply repeating the arguments set forth in the papers is not a good use of the court’s time or the parties’ time.

Case Number: 22STCV32711 Hearing Date: January 5, 2023 Dept: 1

22STCV32711 MICHELLE LANGLEY vs JULIE DIAMOND

Plaintiffs’ Motion to Transfer Probate Case Pending in Santa Barbara County Superior Court to this Court for Coordination and Consolidation Pursuant to Code Of Civil Procedure Sections 403 and 1048

TENTATIVE RULING: The motion is GRANTED. The Court orders Santa Barbara Superior Court Case 22PR00015 transferred to the Los Angeles Superior Court for coordination with Los Angeles County civil law case 22STCV32711. Both cases shall be reassigned to a probate department within the Stanley Mosk Courthouse and are preliminarily consolidated for trial.

Plaintiffs are ordered to “promptly serve the order on all parties to each case and send it to the Judicial Council and to the presiding judge of the court from which each case is to be transferred,” (Cal. R. Ct., rule 3.500(e)), and “promptly take all appropriate action necessary to assure that the transfer takes place and that proceedings are initiated in the other court or courts to complete consolidation with the case pending in that court.” (Cal. R. Ct., rule 3.500(f).)

Background

On May 20, 2021, Michelle Langley aka Michelle Gershunoff filed a petition entitled “Petition for Order to Compel Accounting; Request for Suspension of Powers and Removal of Trustee and Successor Purported Co-Trustee; Damages Pursuant to Probate Code section 16061.9” in Los Angeles Superior Court case 21STPB05013 In re Gershunoff Family Trust. The petition sought an accounting from February 5, 1995 through the present for the Exemption Trust and the Marital Trust created after the death of the first Settlor as well as removal of the Trustees for failure to provide the required notices and accountings. The petition alleged Jean Sturgeon unilaterally and improperly appointed her daughter, Julia Diamond aka Julie Diamond, as a co-trustee.

On September 30, 2021, Jean Sturgeon and Julia Diamond filed a motion to change venue in 21STPB05013, seeking to transfer the action to Santa Barbara County. Judge Daniel Juarez granted the motion to transfer venue on November 19, 2021 and ordered 21STPB05013 transferred to Santa Barbara County.

On April 6, 2022, the court received the acknowledgement of “Receipt for Papers Re: Change of Venue / Transfer” indicating 21STPB05013 was renumbered as 22PR00015 in the Santa Barbara Superior Court.

On March 10, 2022, Michelle Langley filed an amended petition in 22PR00015 acknowledging Jean Sturgeon’s passing on October 7, 2021.

On October 5, 2022, Michelle Langley, Andrea Gershunoff Papazian and Gary Gershunoff filed an unlimited civil action against Julie Diamond individually, and as Executor of the Will of the Estate of Jean Sturgeon and as Trustee of the Gershunoff Family Trust and as Trustee of the Revocable Trust of Jean Sturgeon in Los Angeles Superior Court Case 22STCV32711. The First Amended Complaint, filed on November 18, 2022, asserts causes of action for: (1) fraud; (2) conversion; (3) trespass to chattels; (4) embezzlement; (5) negligence; (6) intentional infliction of emotional distress; (7) breach of fiduciary duty; (8) aiding and abetting breach of fiduciary duty; (9) constructive fraud; (10) accounting; (11) imposition of constructive trust; and (12) wrongful taking of estate assets. The First Amended Complaint contains similar allegations to the probate petition in 22PR00015, including Sturgeon and Diamond’s alleged failure to keep Plaintiffs informed about the alleged trust assets and the request for an accounting. The fiduciary duty claims alleged in the FAC arise, in part, out of Defendant’s status as a trustee and provisions of the Probate Code. (FAC ¶¶ 74-75.)

Motion

On December 12, 2022, Plaintiffs Michelle Langley, Andrea Gershunoff Papazian, and Gary Gershunoff filed the instant motion seeking to transfer the probate case, currently pending in Santa Barbara County as case 22PR00015, back to Los Angeles County for coordination and consolidation with Plaintiffs’ subsequently filed unlimited civil case, 22STCV32711.

Opposition

In opposition, Defendant contends Plaintiffs have not provided a sufficient basis to return the probate action to Los Angeles County, failed to adequately seek an agreement to transfer the action, filed the civil action in the wrong court, and ignored the estate action pending in Santa Barbara County that is not a subject of the instant motion.

Reply

In reply, Plaintiffs argue their motion is supported by adequate facts to warrant coordination, the civil case is properly venued in Los Angeles County, and Plaintiffs were forced to file the instant motion because Defendant would not agree to the transfer.

Defendant’s Evidentiary Objections

Each of Defendant’s evidentiary objections are OVERRULED.

Motion to Coordinate Non-Complex Cases

Standard

Los Angeles Superior Court Local Rule 3.3(h) provides: “[a] civil case which is not complex as defined by Standard 3.10 of the Standards of Judicial Administration may be transferred to the court from a superior court in another county, if it involves a common question of fact or law within the meaning of Code of Civil Procedure section 403. The coordination motion shall be made in compliance with the procedures established by California Rules of Court, rule 3.500. Coordination motions seeking to transfer a case or cases to the Central District shall be filed and heard in Department 1. Coordination motions seeking to transfer a case or cases to a district other than the Central District shall be heard by the Supervising Judge in that district.”

Coordination motions are governed by Code of Civil Procedure section 403, which states, in relevant part:

A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action. Notice of the motion shall be served on all parties to each action and on each court in which an action is pending. Any party to that action may file papers opposing the motion within the time permitted by rule of the Judicial Council. The court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.

(Code Civ. Proc. § 403.)

California Rules of Court, rule 3.500(c) requires that the motion “must be supported by a declaration stating facts showing that: (1) The actions are not complex; (2) The moving party has made a good-faith effort to obtain agreement to the transfer and consolidation from all parties to the actions; and (3) The moving party has notified all parties of their obligation to disclose to the court any information they may have concerning any other motions requesting transfer of any case that would be affected by the granting of the motion before the court.”

To grant the motion, California Rules of Court, rule 3.500(d) requires the Court to “specify the reasons supporting a finding that the transfer will promote the ends of justice, with reference to the following standards:

(1) The actions are not complex;

(2) Whether the common question of fact or law is predominating and significant to the litigation;

(3) The convenience of the parties, witnesses, and counsel;

(4) The relative development of the actions and the work product of counsel;

(5) The efficient utilization of judicial facilities and staff resources;

(6) The calendar of the courts;

(7) The disadvantages of duplicative and inconsistent rulings, orders, or judgments; and

(8) The likelihood of settlement of the actions without further litigation should coordination be denied.”

(See also Code Civ. Proc. § 404.1.)

Procedural Requirements

The motion is supported by the declaration of Plaintiffs’ counsel, Derrick F. Coleman, which states the cases are not complex, (Coleman Decl. ¶¶ 6-9), and that he “participated in a phone conference with Jana Johnston, Ms. Diamond’s counsel, on December 2, 2022 to discuss the proper venue for this civil case and the probate case . . . The lawyers agreed to circle back on the issue the following week and ultimately were unable to reach an agreement to have the probate case transferred back to Los Angeles County Superior Court for coordination (and consolidation) with this civil case prior to the filing of this Motion.” (Id. ¶ 21.) Coleman also states he “notified Ms. Diamond, through her lawyers, of Ms. Diamond’s obligation to disclose to the Court any information she may have concerning any other motions requesting transfer of any case that would be affected by the granting of

this Motion.” (Id. ¶ 22.) The declaration addresses the requirements of California Rules of Court, rule 3.500(c).

In opposition, Defendant contends the parties did not discuss the instant motion at the December 2, 2022 meeting. (Opp. at 12:24-15:19.) Rather, Johnston indicates Defendant “again requested that plaintiffs stipulate to the transfer of this matter to Santa Barbara given the prior court orders, and that fact that the subject Trust has been administered in Santa Barbara for decades” and stated her belief “that plaintiffs were improperly using the filing of the civil complaint as a way to re-argue the previously ruled on motion to change venue.” (Johnston Decl. ¶ 14.) Johnston states Plaintiffs’ counsel never raised Plaintiffs’ medical condition as a basis for venue in Los Angeles until Plaintiffs filed their motion and the December 2, 2022 conference “ended with Mr. Coleman indicating that he and his co-counsel would confer further about [Defendant’s] request that plaintiffs stipulate to transfer this matter to Santa Barbara, and get back to [Defendant].” (Ibid.) Johnston indicates Plaintiffs’ counsel rejected the stipulation to transfer the case to Santa Barbara County and filed in the instant motion the next day. (Id. ¶ 15.) In reply, Plaintiffs’ counsel provide supplemental declarations indicating Coleman stated he would be filing a motion to transfer the probate case to Los Angeles if an agreement was not reached. (Coleman Decl. ¶ 3; Forer Decl. ¶ 3; Orange Decl. ¶ 3.)

Based upon the evidence before the Court, the Court finds Plaintiffs made a sufficient effort to obtain a stipulation to transfer and consolidate the probate action. (Cal. R. Ct., rule 3.500(c)(2).)

The Proceedings Are Properly Coordinated

The Court finds the actions are not complex within the meaning of California Rules of Court, rule 3.400, which the parties do not contest. (Mot. at 8:15-10:2; Opp. at 12:18-23; Cal. R. Ct., rule 3.500(d)(1).) The two cases will not require “exceptional judicial management to avoid placing unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and promote effective decision making by the court, the parties, and counsel,” (Cal. R. Ct., rule 3.400(a)), as they are not likely to require numerous pretrial motions raising difficult or novel legal issues, do not involve a large number of witnesses, documentary evidence, or separately represented parties, and are not likely to require substantial postjudgment judicial supervision. (Cal. R. Ct., rule 3.400(b).)

The Court finds the two actions involve predominating and significant common questions of law and fact, which the parties also do not contest. (Cal. R. Ct., rule 3.500(d)(2); Mot. at 10:22-11:8; Opp. at 12:1-23.) As noted above, both cases involve the Gershunoff Family Trust and the associated sub-trusts, Julia Diamond’s conduct as a trustee thereof, and Plaintiffs’ request for an accounting. This factor weighs in favor of coordination and is neutral regarding whether coordination is appropriate in either Los Angeles County or Santa Barbara County.

The convenience of the parties and counsel strongly favors coordination in Los Angeles County over Santa Barbara County. (Cal. R. Ct., rule 3.300(d)(3).) Plaintiffs and their counsel reside in Los Angeles County and Defendant now resides in Los Angeles County. (Langley Decl. ¶ 2; Papazian Decl. ¶ 2; Gershunoff Decl. ¶ 2; Coleman Decl. ¶¶ 11-13; Jarmakani Decl. ¶¶ 3-5, Ex. A-B.) The parties do not identify any third-party witnesses and Defendant’s counsel’s office is in Santa Barbara County. In opposition, Defendant contends the availability of teleconference software mandates that “the fact that plaintiffs and their attorneys are in Los Angeles carr[y] little weight.” (Opp. at 15:24-25.) However, the Court of Appeal has, in similar contexts, advised against discounting the residence of parties or witnesses. (See Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 843, 849 (“the availability of remote testimony is a circumstance that may ease the inconvenience for any witnesses that live in a location distant from the site of trial, but it is not a proper basis for denying a motion to transfer a case to the county where most witnesses are located. . . . we reject the Superior Court’s conclusion that the availability of remote testimony means section 397 motions based on the convenience of witnesses are a relic of the past.”).) This Court similarly rejects Defendant’s characterization of the location of the parties and counsel, all but one of whom reside in Los Angeles, as “not a weighty factor.” Because all parties and only one parties’ counsel are located in Los Angeles County, the Los Angeles County Superior Court is the most convenient forum.

The relative development of the actions and the work product of counsel, (Cal. R. Ct., rule 3.300(d)(4)), the efficient utilization of judicial facilities and staff resources, (Cal. R. Ct., rule 3.300(d)(5)), and the apparent court calendars, (Cal. R. Ct., rule 3.300(d)(6)), weigh in favor of coordination. The two cases remain in the relatively early stages of litigation. Defendant filed a petition to approve trustee’s accountings in 22PR00015 on November 30, 2022, (Forer Decl. ¶ 12, Ex. L), and Defendant filed a demurrer in the civil action arguing the probate department of the Santa Barbara Superior Court has exclusive jurisdiction over Plaintiffs’ civil claims, (Prob. Code § 17200), which is set to be heard on April 4, 2023. Returning the probate case to Los Angeles County for coordination would duplicate staff resources by undoing the previous transfer. However, this minor inefficiency does not outweigh the efficiencies to be gained by having the two cases heard in the same county by the same judicial officer. While transferring the probate case back to Los Angeles County will impact the court’s calendar, any such impact similarly does not outweigh the overall impact retaining the cases in separate counties would have on both court’s calendars.

Plaintiffs contend “there is a serious risk that rulings in the probate case on the many issues that are also present in the instant case will duplicate and/or be inconsistent with rulings in this case.” (Mot. at 13:27-14:1.) Because Plaintiffs have raised duplicative claims in both actions, there will be an opportunity for inconsistent or duplicative rulings if the two cases remain pending in separate superior courts. Duplicate proceedings waste judicial resources and inconsistent rulings, particularly related to accounting-related discovery, could result in significant confusion and protracted motion practice. While this factor weighs in favor of coordination, it is neutral as to whether the actions should be coordinated in Los Angeles County or Santa Barbara County. (Cal. R. Ct., rule 3.500(d)(7).)

Regarding the likelihood of settlement, Plaintiffs’ counsel indicates “[c]oordination and consolidation of the probate and civil cases should ultimately improve the chances of settlement” due to the potential unpredictability should the cases remain separate. (Coleman Decl. ¶ 19.) Defendant does not provide any argument as to why denial of coordination or coordination in Santa Barbara County would increase the likelihood of settlement. The Court finds this factor weighs slightly in favor of coordination.

In her opposition, Defendant contends “plaintiffs are asking this Court to overrule two other Superior Court judges who have ordered this case to proceed in Santa Barbara Superior Court.” (Opp. at 5:11-13.) However, the order sought does not overrule any prior order. As noted by Plaintiffs in reply, Defendant inaccurately characterizes statements made by the judicial officer in 22PR00015, Judge Colleen Sterne, in unrelated hearings as a ruling or order. (Opp. at 5:12, 5:23, 8:9-10, 8:27-28, 11:2, 12:23, 16:17.) Defendant does not provide any relevant court order from the Santa Barbara County Superior Court. Rather, Defendant provides transcripts containing Judge Sterne’s suggestions to the parties. (See Johnston Decl. Ex. 2 at 13:9-14:18 (“L.A. or here, well, you know, in this modern world of Zoom and the ability to do pretty much anything anywhere, I think that moving the matter back to L.A. at this point would just mean spending more money, which makes absolutely no sense . . . so the case should stay here.”).) While the order requested by Plaintiffs would undo Judge Juarez’s November 19, 2021 transfer order, the instant motion is brought on an entirely separate statutory ground that requires the consideration of entirely different factors and circumstances.

Defendant also contends in opposition that the civil action was improperly filed in Los Angeles County. (Opp. at 16:12-18:2.) Defendant does not cite any specific authority demonstrating these arguments are properly raised in response to a coordination motion. Moreover, Defendant has not met her burden on this issue. (Buran Equipment Co. v. Superior Court (1987) 190 Cal.App.3d 1662, 1666.) “[W]here a plaintiff takes advantage of the liberal statutory joinder rules and joins various causes of action against various defendants, so long as the plaintiff chooses a venue that is proper as to one defendant, the entire case may be tried there, regardless of whether venue would be improper with respect to other defendants if the causes of action against them were analyzed separately.” (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 504.) It is undisputed that Defendant now resides in Los Angeles County and therefore venue was proper against Defendant in her individual capacity. (Code Civ. Proc. § 395(a); FAC ¶ 7.)

Finally, Defendant contends that Plaintiffs “ignore the SB Estate Proceeding, i.e., the ongoing matter concerning the Estate of Jean Sturgeon, which plaintiff Langley initiated and in which they have all filed a Creditors’ Claims and which thus is a large part of the present action.” (Opp. at 18:3-14.) However, the submission of a creditor’s claim is merely a procedural requirement to either obtain estate assets or commence civil litigation. (Prob. Code § 9351.) The pending estate action does not weigh against coordination of the probate trust case and the civil litigation.

On balance, the Court finds the relevant factors demonstrate the ends of justice will be promoted by coordination of the two actions in Los Angeles County. Accordingly, the Court orders Santa Barbara Superior Court Case 22PR00015 transferred to the Los Angeles Superior Court for coordination with Los Angeles County civil law case 22STCV32711. Both cases shall be reassigned to a probate department within the Stanley Mosk Courthouse.

The Court Preliminarily Consolidates the Actions for Trial

Pursuant to Code of Civil Procedure section 403, “[t]he court to which a case is transferred may order the cases consolidated for trial pursuant to Section 1048 without any further motion or hearing.” Section 1048(a) provides “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” The Court preliminarily consolidates the actions for trial without prejudice to the parties or assigned judicial officer determining, at a later stage in the litigation, that consolidation is no longer appropriate.

Conclusion

Plaintiffs’ Motion to Transfer Probate Case Pending in Santa Barbara County Superior Court to this Court for Coordination and Consolidation Pursuant to Code Of Civil Procedure Sections 403 and 1048 is GRANTED.

The Court orders Santa Barbara Superior Court Case 22PR00015 transferred to the Los Angeles Superior Court for coordination with Los Angeles County civil law case 22STCV32711. Both cases shall be reassigned to a probate department within the Stanley Mosk Courthouse and are preliminarily consolidated for trial.