Judge: Olga Alvarez, Case: 37-2019-00045026-PR-TR-CTL, Date: 2023-11-08 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 07, 2023

11/08/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2019-00045026-PR-TR-CTL IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8, 2004, AS AMENDED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/20/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: Respondent Stephen Pringle's Motion to Compel Responses to Form Interrogatories (ROA 394) is GRANTED IN PART as to FROG No. 17.1 and DENIED IN PART as to FROG Nos. 1.1, 12.1 and 14.1.

The request for monetary sanctions is GRANTED IN PART.

Respondent's Motion to Deem Admissions True (ROA 400) is GRANTED. The request for monetary sanctions is GRANTED IN PART.

Respondent's Motion to Compel Responses to Request for Production of Documents (ROA 407) is GRANTED. The request for monetary sanction is GRANTED IN PART.

Respondent's Motion to Compel Deposition (ROA 415) is DENIED. The corresponding request for monetary sanctions is DENIED.

I. Background Thomas Pringle and Heather Pringle established the Pringle Family Trust on April 8, 2004 ('Trust'). Both settlors are deceased, and they were survived by two children: Jennifer Kay Faulkner ('Petitioner') and Stephen Pringle ('Respondent'). Respondent served as trustee of the Trust after the death of the settlors, but on July 26, 2021, he was suspended by the court and replaced with Jennifer Faulker as temporary trustee. (ROA 154.) On August 26, 2019, Petitioner filed a First Amended Petition of a Beneficiary For: (1) Removal of Stephen Pringle as Trustee; (2) Appointment of Fiduciary; (3) Breach of Trust/Breach of Fiduciary Duty; (4) Accounting and Inventory of Personal Property; (5) Financial Elder Abuse; (6) Undue Influence; (7) For Recovery of Trust Assets Probate Code § 850; and (8) Payment of Double Damages and Attorney Fees. (ROA 65.) The petition contained various claims against Respondent, including that Respondent unduly influenced his mother to transfer the following four real properties out of the Trust: (1) 17911 Sencillo Drive, San Diego, California; (2) 1049 Fountain Place, Escondido, California; (3) 12178 Lomica Drive, San Diego, California; and (4) 1061 Fountain Place, Escondido, California.

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3011001 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8,  37-2019-00045026-PR-TR-CTL The request to return the real properties to the Trust was bifurcated and trial was held on that issue on April 11-14, 2022, before Judge Katherine Bacal. Judge Bacal found that Petitioner did not meet her burden in showing undue influence and denied the request to return the properties to the Trust. (ROA 252.) Judge Bacal issued a Statement of Decision on May 17, 2022 (ROA 270), and on February 7, 2023, this court entered judgment on the petition in favor of Respondent because the remaining prayers for relief were dismissed without prejudice. (ROA 308.) On March 10, 2023, Petitioner appealed the judgment, and the appeal is currently pending. (ROA 334, Notice of Appeal, D081866.) On April 3, 2023, Respondent filed a 'Motion to Expunge Three Lis Pendens, Setting an Undertaking Bond on Appeal and Attorney's Fees,' seeking to expunge the lis pendens recorded against three of the properties. (ROA 343.) The Court granted this motion. (ROA 381, Minute Order filed May 24, 2023; ROA 378, Order.) On July 7, 2023, Respondent filed a Petition for Order: (1) to enforce no contest clause; and (2) awarding attorney fees and costs. (ROA 389.) On July 20, 2023, Respondent filed a motion to compel responses to Form Interrogatories and request for $2,310 in monetary sanctions. (ROA 394.) On July 24, 2023, Respondent filed a motion to deem admissions true and request for $2,310 in monetary sanctions. (ROA 400.) On July 25, 2023, Respondent filed a motion to compel responses to Request for Production and request for $2,310 in monetary sanctions. (ROA 407.) On August 3, 2023, Respondent filed a motion to compel deposition and request for $4,446 in monetary sanctions. (ROA 415.) On October 26, 2023, Petitioner filed oppositions to the above four discovery motions. (ROA 452, 455, 458, and 461.) On November 2, 2023, Respondent filed replies. (ROA 464, 467, 469, and 471.) II. Discussion A. Compliance with the Rules of Court Respondent'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.' (See, e.g., ROA 416, Haines Decl., Exhs. A-D.) The parties are expected to comply with all applicable rules in the future.

B. Form Interrogatories (ROA 394) On May 2, 2023, Respondent served Form Interrogatories ('FROG') on Petitioner. Responses were due by June 2, 2023, but none were served by Petitioner. Respondent argues that on June 8, 2023, counsel sent a meet-and-confer email to Petitioner noting the lateness and extending the deadline to respond to June 15, 2023. However, no responses were received.

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3011001 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8,  37-2019-00045026-PR-TR-CTL Petitioner opposes the motion, arguing that she has been ill and self-represented, and relied on a paralegal who misled her about the deadlines, and that she was unaware she needed to respond to the interrogatories. In realizing that answers are due, Petitioner served her responses on October 26, 2023, and thus, there is no need to compel answers and Respondent's request for monetary sanctions should be denied.

In reply, Respondent argues that Petitioner served incomplete responses at the last minute, concurrently with her opposition to the motion to compel. By failing to timely respond, all objections were waived.

Respondent further argues that some of the interrogatories were not answered, and Petitioner objected to others. Thus, Petitioner should be compelled to provide responses in full and without objection.

Here, it is undisputed Petitioner served responses on October 26, 2023, the same day she filed her opposition to the motion. (ROA 453, Faulkner Decl., Exh. B.) Petitioner answered FROG No. 1.1 but did not answer FROG Nos. 12.1 and 14.1 on the ground that 'INCIDENT' was not identified, and did not answer FROG No. 17.1, stating that it would be addressed in the RFA. (Id.) Thus, the motion is moot as to FROG No. 1.1 based on Petitioner's response. The motion is DENIED as to FROG Nos. 12.1 and 14.1 because 'INCIDENT' is unclear.

The motion is GRANTED as to FROG No. 17.1, to which Petitioner did not provide a code-compliant response. Petitioner is ordered to serve a code-compliant response to FROG No. 17.1 within 15 days of this order.

Petitioner's reliance on her illnesses and self-represented status is not an excuse for failure to comply with the discovery deadlines, particularly where Respondent's counsel attempted to meet and confer regarding the matter and extended the deadline to respond, but Petitioner ignored her obligation and did not respond until the day she filed her opposition. There is also no dispute the responses are untimely, even if served prior to the hearing. There is no evidence Petitioner communicated with Respondent's counsel about her inability to comply or sought an extension of time to respond. Ignorance of the law is not an excuse even for a self-represented party.

As such, Petitioner's failure to respond necessitated the filing of the motion. 'The court shall impose a monetary sanction ... against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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 § 2030.290(c).) Therefore, the Court finds that Respondent is entitled to monetary sanctions for having to file the motion.

As to sanction, Respondent claims counsel spent a total of five hours (.5 hours to meet and confer, 2 hours to draft the motion, and 2.5 to review the opposition, draft a reply, and attend the hearing on the motion) at the billing rate of $450, plus a filing fee of $60, for a total of $2,310. (ROA 397, Haines Decl.) The Court finds counsel's billing rate is reasonable, but the number of hours expended is excessive considering the abbreviated, two-page memorandum of points and authorities filed in support of the motion, which is for all intents and purposes, nearly identical across all four discovery motions. (See ROA 395, 401, 408 & 417.) Based on the filings and anticipated attendance at the hearing, the Court finds three hours is reasonable under the circumstances. As such, the Court awards $1,410 ([3 x $450] + 60 = $1,410) in monetary sanctions.

B. Requests for Admission (ROA 400) On May 2, 2023, Respondent served Requests for Admission ('RFA') on Petitioner by email.

Responses were due by June 2, 2023, but no responses were received. On June 8, 2023, Respondent Calendar No.: Event ID:  TENTATIVE RULINGS

3011001 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8,  37-2019-00045026-PR-TR-CTL sent an email to meet and confer and extended the deadline to respond to June 15, 2023, but no responses were received.

In opposition, Petitioner repeats the same arguments in her opposition to the motion to compel responses to FROG, stating that she served responses on October 26, 2023. (ROA 455.) In reply, Respondent argues Petitioner served inadequate and incomplete responses: Petitioner object to RFA Nos. 1-5 and did not answer RFA Nos. 7 and 8.

If a party to whom the RFA are directed fails to serve a timely response, '[t]he party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product ... The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) [t]he party has subsequently served a response that is in substantial compliance with Sections 2033.210, 2033.220, and 2033.230, [and] (2) [t]he party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.' (CCP § 2033.280(b).) Here, Petitioner served untimely responses on October 26, 2023, when she filed her opposition. (ROA 456, Faulkner Decl., Exh. B.) Petitioner served objections to RFA Nos. 1-5 and did not respond to RFA Nos. 7 and 8. Thus, although Petitioner served responses, not all the responses are in substantial compliance with CCP §§ 2033.210 et seq., and the Court is not persuaded that the failure to timely respond was the result of mistake, inadvertence, or excusable neglect. As such, Petitioner waived objections to RFA Nos. 1-8.

Therefore, the motion is GRANTED. The truth of the matters and genuineness of documents specified in Respondent's RFA Nos. 1-8 are deemed admitted. (CCP § 2033.280, subds. (b), (c).) 'The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction ... on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.' (CCP § 2033.280(c).) Respondent seeks $2,310 in monetary sanctions based on five hours of attorney time at the billing rate of $450. The Court finds the number of hours expended is excessive, given that the time anticipated to attend the hearing was included in the order granting sanctions above, under the motion to compel FROG. Further, the Court finds that four hours to draft the abbreviated memoranda of points and authorities in support of the moving and reply papers, plus the declaration of counsel, which is also duplicated in substance across all four motions, is excessive. Thus, the Court finds that three hours are reasonable, and awards $1,410 ([3 x $450] + 60 = $1,410) in monetary sanctions.

C. Requests for Production (ROA 407) On May 2, 2023, respondent served the Requests for Production of Documents ('RFP') on Petitioner by email. Responses were due by June 2, 2023, and no responses were received. On June 8, 2023, Respondent sent an email to meet and confer and extended the deadline to respond to June 15, 2023, but no responses were received.

In opposition, Petitioner states she served responses on October 26, 2023. (ROA 462, Faulkner Decl., Exh. B.) Respondent argues Petitioner served incomplete responses at the last minute concurrent with the filing of her opposition, and by failing to respond timely, all objections were waived. Respondent argues that Petitioner objected to some of the requests while Petitioner did not provide adequate or substantive responses to other requests.

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3011001 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8,  37-2019-00045026-PR-TR-CTL 'If a party to whom a demand for inspection, copying, testing, or sampling is directed fails to serve a timely response to it, ... [t]he party ... waives any objection to the demand, including one based on privilege or on the protection for work product ... The court, on motion, may relieve that party from this waiver on its determination that both of the following conditions are satisfied: (1) [t]he party has subsequently served a response that is in substantial compliance with Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 [and] (2) [t]he party's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.' (CCP § 2031.300(a).) Here, Petitioner served untimely responses on October 26, 2023. (ROA 462, Faulkner Decl., Exh. B.) Petitioner served objections to RFP Nos. 1-5, and as to RFP No. 6, Petitioner did not respond but referred to the objection filed against Respondent's Trust Account. As such, not all responses were code compliant. Further, as discussed, the Court is not persuaded that Petitioner's failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect. Thus, Petitioner waived any objection to the demands.

Therefore, the motion to compel RFP is GRANTED. Respondent is ordered to serve code-compliant responses within 15 days of this order.

As to sanctions, there is no dispute the responses are untimely, even if served prior to the hearing, and there is no evidence that Petitioner communicated with Respondent's counsel about her inability to comply or sought an extension of time to respond.

'The court shall impose a monetary sanction under ... against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection, copying, testing, or sampling, 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).) Thus, the Court finds monetary sanctions against Petitioner are warranted.

Respondent seeks $2,310 in monetary sanctions based on five hours of attorney time at the billing rate of $450. The Court finds the number of hours expended is excessive, given that the time anticipated to attend the hearing was included in the order granting sanctions above, under the motion to compel FROG. Further, the Court also finds the additional four hours claimed by Respondent is not justified in view of the abbreviated filings. Thus, the Court finds two hours are reasonable and awards $960 ([2 x $450] + 60 = $960) in monetary sanctions.

D. Deposition (ROA 415) Respondent argues that on May 23, 2023, counsel for Respondent served a Notice of Video Deposition on Petitioner by email. Respondent claims that Petitioner did not serve any written objection to the deposition prior to June 16, 2023, the date set for the deposition. On the date of the deposition, Petitioner did not appear. Respondent hired a court reporter and videographer for the deposition and incurred costs. Respondent argues that since after the meet and confer letter was sent to Petitioner, she has failed to agree to a date to be deposed.

In opposition, Petitioner argues that on May 24, 2023, she emailed Respondent's counsel to let him know she would not be available on June 16, 2023, and provided another date.

In reply, Respondent argues that in her email, Petitioner did not elaborate on why she could not attend the deposition and did not provide a written objection. Respondent further argues that during the first phase of litigation before Judge Bacal in 2022, Petitioner engaged in delay tactics, and in a separate civil matter before Judge Bowman, in Pringle v. Faulkner, Case No. 37-2022-00051907-CU-NP-NC, there is currently pending a Motion to Compel deposition set to be heard on January 5, 2024, based on Petitioner's alleged failure to appear for a properly noticed deposition. Respondent argues that on October 20, 2023, Judge Bowman compelled responses to Form Interrogatories, deemed Requests for Calendar No.: Event ID:  TENTATIVE RULINGS

3011001 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE PRINGLE FAMILY TRUST, DATED APRIL 8,  37-2019-00045026-PR-TR-CTL Admission true and sanctioned Petitioner for abusing the discovery process.

Here, Respondent's counsel states that '[a]fter May 23, 2023, Petitioner Jennifer Faulkner did not contact me to indicate that she was not going to show up to the deposition on June 16, 2023.' (ROA 416, Haines Decl., at ¶ 11.) However, the evidence shows that Petitioner emailed Respondent's counsel on May 24, 2023, to inform him that she would be unavailable on the date set for deposition. (ROA 459, Faulkner Decl., Exh. A.) The email shows Petitioner also provided a different date when she would be available. (Id.) Respondent's own exhibit shows the same email from Petitioner dated May 24, 2023 to counsel, which belies Respondent's claim that Petitioner did not object or contact counsel prior to the deposition date. (ROA 416, Haines Decl., at Exh. D.) That Petitioner did not elaborate on her reasons for her unavailability is not grounds to insist on a date that was not going to work, and to unilaterally proceed. There is no evidence that Respondent proposed any new dates, or that Petitioner refused to agree to a new date. The arguments relating to another case filed in the Northern Division is not evidence relevant to this motion, and to the extent Respondent aims to rely on the records, the evidence is not properly before this Court. Thus, the Court will not consider the purported rulings in the civil case in ruling on the instant motions.

Therefore, the motion to compel deposition is DENIED. The parties are nevertheless instructed to meet and confer regarding a date agreeable to both parties when Petitioner's deposition may take place.

Based on the foregoing, the request for sanctions is DENIED.

Respondent was aware that Petitioner could not attend the deposition on the date noticed, and yet incurred unnecessary expenses. (ROA 416, Exhs. B, C.) There is no evidence Respondent met and conferred with Petitioner as required under CCP § 2016.040, and no declaration from counsel attached to the motion. (CCP § 2025.450(b)(2).) 'On motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall impose a monetary sanction ... in favor of that party and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' The Court finds that Petitioner acted with substantial justification in not appearing for deposition in June 2023, and given that Respondent allowed the expenses to be unnecessarily incurred, the imposition of monetary sanctions under the circumstances would be unjust. Thus, the request for monetary sanctions is DENIED.

Counsel for Respondent is directed 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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