Judge: Olga Alvarez, Case: 37-2019-00068329-PR-PW-CTL, Date: 2023-11-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 31, 2023

11/01/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Probate of Will - Letters Testamentary Motion Hearing (Probate) 37-2019-00068329-PR-PW-CTL ESTATE OF CASSANDRA PALIN CRAIG [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 06/26/2023

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 Compliance with Subpoena to Science Care of California, LLC, filed by Nicole Dalfio (ROA 128) is DENIED as moot.

Nicole Dalfio's request for monetary sanctions is GRANTED.

Alan Craig's request for monetary sanctions is DENIED.

Science Care of California, LLC's request for monetary sanctions is DENIED.

I. BACKGROUND Cassandra Palin Craig ('Decedent') died on November 29, 2019. On February 20, 2020, Decedent's husband, Alan Craig ('Alan'), was appointed as executor of Decedent's estate and Decedent's Will dated June 9, 2019 ('2019 Will') was admitted to probate. (ROA 23.) On December 29, 2021, Alan filed a First and Final Report of Personal Representative; Petition for Final Distribution on Waiver of Account ('Petition for Final Distribution'). (ROA 28.) On February 24, 2022, Decedent's daughter, Nicole Dalfio ('Nicole'), filed an objection to that report.

(ROA 38.) The objection was based on three grounds: (1) filing defects identified by the examiner; (2) the proposed distribution violated the 2019 Will because it did not require that the distributions to Petitioner [Alan] be held in trust; and (3) the appointment of Petitioner [Alan] as executor and admission of the 2019 Will was procured through fraud because Petitioner [Alan] did not provide proper notice to Decedent's heirs. The objection stated that Nicole would be filing a petition to set aside Alan's appointment as executor and the order admitting the 2019 Will to probate.

On November 21, 2022, the Petition for Final Distribution was taken off calendar, and the court ordered that any petition to set aside must be filed by December 9, 2022. (ROA 69.) On December 12, 2022, Nicole filed a Petition to Set Aside Order Admitting Will to Probate ('Set Aside Petition'). (ROA 72.) The Set Aside Petition alleges that the 2019 Will is a forgery because the signature does not match Decedent's; Alan created the 2019 Will with his personal LegalZoom account; the Calendar No.: Event ID:  TENTATIVE RULINGS

3023342 CASE NUMBER: CASE TITLE:  ESTATE OF CASSANDRA PALIN CRAIG [IMAGED]  37-2019-00068329-PR-PW-CTL customer support chat logs between Legal Zoom and their 'customer' were with Alan; and the 2019 Will was witnessed by Alan's parents. The Set Aside Petition also alleges that Alan concealed estate assets and falsely claimed the estate was insolvent because Decedent was the beneficiary of Texas oil trusts; on July 26, 2019, Decedent rolled her oil interests into a 4.16667% stake in three LLCs; between March 10, 2022, and September 14, 2022, Decedent's monthly royalty payments from her oil interests totaled $10,106.12; and Alan has taken these payments for himself and not reported them as an asset of the estate. Finally, the Set Aside Petition alleges that the order appointing Alan as executor and admitting the 2019 Will to probate are void based on improper service.

On January 11, 2023, Alan filed an Amended First and Final Report of Personal Representative and Petition for Final Distribution on Waiver of Account ('Amended Petition for Final Distribution'). (ROA 87.) The Amended Petition for Final Distribution alleges that the estate consists of the following: (1) 4.166667% interest in GMGF Legacy, LLC, Account #R77027001 ($19,363.33); (2) 1.041667% interest in Golston Company Legacy, LLC, Account #R77128008 ($6,202.45); and (3) 4.166666% interest in Roy D Golston Jr. Legacy, LLC, Oil Account #R76864009 ($35,687.84). (ROA 86, 87.) Alan seeks a distribution of the entire estate to himself as trustee pursuant to the 2019 Will, with the remainder of any assets to be distributed to Decedent's son, Vic Dalfio, Jr., upon Alan's death.

On June 26, 2023, Nicole filed the instant motion to compel compliance with the subpoena for the production of documents issued to a third party, Science Care of California, LLC. ('Science Care'), on the grounds the subpoena seeks records of Decedent, to which Nicole is entitled as Decedent's next of kin, and Alan has not objected to the production of records. (ROA 128.) Nicole also requests $3,888 in monetary sanctions against Science Care and its counsel.

On October 13, 2023, Alan filed an opposition to the motion. (ROA 144.) On October 19, 2023, Science Care filed an opposition to the motion. (ROA 146.) On October 25, 2023, Nicole filed a reply declaration of attorney Melvin with exhibits. (ROA 151.) On October 30, 2023, Nicole filed a reply directed at Alan's opposition. (ROA 153.) II. DISCUSSION A. Compliance with the Rules of Court First, the Court notes the parties' 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. (See ROA 147, 151.) Second, there is no proof of service of the opposition papers filed by Alan, and moving party complains of lack of service of these papers by Alan. As such, Alan's opposition fails to comply with CCP § 1005(b) and CRC 3.1300(a) and (c). Moving party states Alan's opposition was discovered while reviewing the court's docket on October 27, 2023, the same day a reply (ROA 153) was filed in response to the opposition. Moving party argues Alan's defective opposition should not be considered, and if considered, moving party requests more time to respond.

In light of the failure to serve the opposition on Nicole, the party against whom monetary sanctions are sought, and the lack of proper notice of the opposition arguments such that Nicole was not given a reasonable opportunity to substantively respond, the Court will not consider Alan's opposition. Further, Science Care is the party that has been subpoenaed to produce the records at issue, not Alan, even if Alan is a party to the action. As such, Alan could have joined in the opposition or filed his own, as he did, but he could not seek sanctions against the moving party when the motion is not directed against Alan or his counsel.

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3023342 CASE NUMBER: CASE TITLE:  ESTATE OF CASSANDRA PALIN CRAIG [IMAGED]  37-2019-00068329-PR-PW-CTL Third, Science Care argues the motion is untimely because it was not served within the 60-day deadline to file the motion. (CCP § 2025.480(b) [the 'motion shall be made no later than 60 days].) Nicole filed the motion on June 26, 2023, on the deadline, but the proof of service of the motion papers shows service on July 5, 2023. Thus, service of the motion was untimely.

Fourth, the motion was not served personally on Science Care, a nonparty, as required under CRC 3.1346 ('A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record,' [emphasis added]).

However, given that Science Care was able to respond to the motion despite the defective service, and production is no longer an issue, as discussed below, the Court will consider all arguments and evidence and rule on the merits of the motion.

The Court admonishes the parties that compliance with the Rules of Court is mandatory. The parties are expected to comply with all applicable rules in the future.

B. Merits In her reply, Nicole argues that '[i]n light of Science Care's most recent production in October, it appears Science Care has finally complied with the subpoena (albeit six months late) and no additional production needs to be ordered. The only issue remaining is that of monetary sanctions.' (ROA 153, Reply, at p. 2.) Further, counsel for Nicole states that '[d]uring the pendency of the Motion, Science Care made production on the following dates: June 29, 2023; August 18, 2023; September 1, 2023; and September 29, 2023. The original production, served only after the motion to compel was filed, was heavily redacted. Each of the supplemental productions had either new documents, voicemails, or removed redactions. It was not until the September 29, 2023 production (and a minor production on October 18, 2023), that the production was finally 'complete.'' (ROA 151, Melvin Decl., at ¶ 15.) Given that production is not at issue, the motion is DENIED as moot.

C. Sanctions Preliminarily, the Court finds there was sufficient meet and confer, as evidenced by the two stipulations and orders to continue the motion (ROA 134, 139), and extensive emails exchanged between counsel for moving party and Science Care between June and October 2023. (ROA 151, Melvin Decl., Exhs.

B-E.) The emails exchanged show that Science Care made several productions from June 2023 through as late as October 18, 2023. Based on the email dated October 9, 2023, between Ms. Dwerlkotte and Mr.

Tookoian, Nicole was still reviewing the latest production from September 29, 2023. It also appears that Nicole was initially agreeable to redactions, but the documents had been over-redacted upon production, which was an issue. The deadline to file the motion was June 26, 2023. Thus, the Court finds that Nicole acted with substantial justification in filing the motion.

Alan seeks $2,157.50 in monetary sanctions pursuant to CCP § 2023.030(a) based on Nicole's misuse of the discovery process and terminating sanctions pursuant to CCP § 2023.030(d)(1) by striking the motion. As discussed, in view of the procedural deficiencies with the opposition and likely prejudice to Nicole, the Court will not consider the opposition. Further, the Court finds no abuse of the discovery process by Nicole. Thus, Alan's requests for monetary sanctions and terminating sanctions are DENIED.

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3023342 CASE NUMBER: CASE TITLE:  ESTATE OF CASSANDRA PALIN CRAIG [IMAGED]  37-2019-00068329-PR-PW-CTL Science Care also seeks monetary sanctions in the amount of $8,550 pursuant to CCP § 2025.480(j) against Nicole and her counsel Antonyan Miranda, LLP, jointly and severally, on the grounds that Nicole has already received the records requested and she failed to meet and confer in good faith. The Court finds sufficient meet and confer, as discussed, and based on the evidence presented, the filing of the motion appears to have been necessary. Although the records at issue were produced prior to the hearing on the motion, supplemental records continued to be produced until as late as October 2023, with a short turn around to review the production before the hearing. Thus, it was not unreasonable for moving party not to withdraw the motion.

The court shall impose a monetary sanction 'against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, 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 § 2025.480(j).) The Court finds sanctions against Nicole, who acted with substantial justification, are not warranted under the circumstances. Thus, Science Care's request for monetary sanctions is DENIED.

Nicole requests $3,888 in monetary sanctions against Science Care and its counsel jointly and severally, based on 7.2 hours of attorney time at the billing rate of $540. (ROA 131, Melvin Decl., ¶¶ 19-26.) The Court finds the billing rate and time expended on the motion are reasonable. Therefore, Nicole's request for sanctions is GRANTED in the amount requested.

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

Counsel for Nicole Dalfio is directed to serve written notice of ruling on all parties in accord with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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