Judge: Olga Alvarez, Case: 37-2020-00019147-PR-TR-CTL, Date: 2023-12-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 28, 2023

11/29/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Discovery Hearing (Probate) 37-2020-00019147-PR-TR-CTL IN THE MATTER OF THE BARRETT FAMILY LIVING TRUST DATED DECEMBER 14, 1979 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 09/05/2023

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 Production of Documents filed by Julie Parker (ROA 164) is GRANTED.

I. Background Barbara Barrett ('Barbara') and Richard Barrett Sr. ('Richard') created the Barrett Family Living Trust on December 14, 1979 ('Trust'). Richard died in 1991, and the Trust was thereafter divided into Fund A and Fund B. Barbara died on August 7, 2016, at which time Julie Parker became the trustee.

The following are the beneficiaries of Fund A and their respective shares under the fund: Barbara's grandsons, Brian Hirsh and Kevin Hirsh, as to $25,000 each; Barbara's daughter, Virginia Hirsh Clements ('Clements'), as to 50% of the residue; and Barbara's granddaughters, Julie Parker ('Parker'), Laurie Biros ('Biros'), and Amanda Brooks ('Brooks'), as to 50% of the residue divided equally.

Stella Shvil ('Shvil') is the agent under a power of attorney for Clements and has been managing Clements' financial affairs since January 24, 2018. Clements also appointed James R. Goodwin ('Goodwin') as the trust protector under the fourth amendment to her living trust, known as the Hirsh Revocable Trust dated April 6, 1983 ('Clements Trust').

On May 29, 2020, Shvil, as agent for Clements, filed a petition claiming that Parker improperly paid herself trustee fees. (ROA 1.) The petition was then amended on August 20, 2021 ('FAP'). (ROA 47.) The FAP alleges that Parker is prohibited from receiving trustee fees because Section 4.10(c) of the Trust prohibits compensation for trustees that are the issue of the settlors, and Parker is Barbara's granddaughter.

On December 2, 2021, Parker filed a Petition for Settlement of Accounts, Approval of Settlement of Trustee Fees, Approval of Attorney's Fees, and For Final Distributions of Remaining Trust Assets to Beneficiaries. (ROA 65.) On February 6, 2023, Shvil filed a motion for summary adjudication. (ROA 113.) On May 10, 2023, the Court granted in part and denied in part this motion, finding that '[t]he evidence submitted by Parker could support a finding that none of the parties involved, including their attorneys, were aware of the fee prohibition and that all parties agreed to Parker's fee based on the known circumstances.' (ROA 143, Calendar No.: Event ID:  TENTATIVE RULINGS

3023335 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BARRETT FAMILY LIVING TRUST DATED  37-2020-00019147-PR-TR-CTL Minute Order, at p. 5.) The Court explained that '[t]he evidence could also show that excusing some or all of Parker's liability would be equitable based on what Parker knew, her reliance on the other beneficiaries' conduct, the changes she made to be able to serve as trustee, and the amount of time she spent administering the Trust. As such, there are triable issues of fact as to whether Parker acted reasonably and in good faith in accepting a trustee fee, and whether excusing some or all of Parker's lability would be equitable.' (Id., at pp. 5-6.) On September 5, 2023, Parker filed the instant motion to compel production of documents pursuant to CCP § 2025.480. (ROA 164.) Parker moves to compel production of the documents requested in the Notice and Subpoena for Deposition, Request for Production, Set No. 1, Demand No. 3 ('RFP No. 3'), from Goodwin. (ROA 167, Separate Statement.) On November 14, 2023, Goodwin filed his own declaration, explaining the grounds for objecting to RFP No. 3. (ROA 184, Goodwin Decl.) The Court is not in receipt of any opposition from any party.

II. Discussion On January 21, 2023, Parker served on Goodwin a Deposition Subpoena with a Request for Production of Documents. (ROA 166, Husted Decl., Exh. D.) At issue is RFP No. 3, which seeks 'ALL DOCUMENTS in YOUR custody or control evidencing any written or oral correspondence between YOU and Roland Achtel, from January 2016 to the present, PERTAINING to Virginia Clements.' (ROA 167.) On February 17, 2023, Goodwin objected to this RFP based on the attorney-client privilege, and subsequently, produced a privilege log which showed that two emails had been withheld.

In his declaration, Goodwin states that '[i]n March and May 2018, Ms. Parker mailed Ms. Shvil copies of accountings for the Barrett Trust. Ms. Shvil and her counsel, Robin Cahill, shared the accountings with me, soliciting my input on the accountings and the fees taken by Ms. Parker. At that time, Virginia was represented by attorney Roland Achtel. On July 12, 2018, Mr. Achtel sent me an emial [sic], soliciting my input concerning, among other issues, Ms. Parker's trustee fees. I responded to Mr. Achtel in an email dated July 20, 2018.' (ROA 184, at ¶ 5.) Goodwin further states that '[b]ecause of my status as an attorney and trust protector for Virginia and given that I was communicating with Virginia's attorney about legal matters that affected her interest in the Barrett Trust, I do not believe it appropriate for me to unilaterally disclose communications that might be protected by Virginia's attorney-client privilege. Indeed, I have no right to waive Virginia's attorney's client privilege. Of course, if the Court determines that the two emails between me and Mr. Achtel are not protected from disclosure by Virginia's attorney-client privilege, then I will produce that correspondence.' (Id., at ¶ 10.) A party may obtain discovery from a non-party by way of a deposition subpoena for business records.

(CCP § 2020.010(a)(3).) A party that has been served with a deposition subpoena for production of records is obligated to produce all responsive documents within their control. (CCP §§ 1985(a), § 2020.030.) Courts are authorized to compel compliance with the deposition subpoena on a showing of good cause for the production and a good faith effort to meet and confer. (CCP §§ 1987.1 & 2025.480.) Here, at issue are two emails exchanged between Goodwin and attorney Achtel (who represented Clements) dated July 12, 2018, and July 20, 2018, regarding Parker's trustee fees. It is undisputed that in 2018, Goodwin was not Clements' attorney. Indeed, Goodwin was appointed as the trust protector of the Clements Trust, and at no point, served as Clements' attorney or personal representative. Thus, Goodwin fails to show that he has standing to assert the attorney-client privilege on behalf of Clements, or to assert the attorney work production doctrine.

In Meza v. H. Muehlstein & Co., Inc. (2009) 176 Cal.App.4th 969 ('Meza'), the plaintiff appealed the trial Calendar No.: Event ID:  TENTATIVE RULINGS

3023335 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BARRETT FAMILY LIVING TRUST DATED  37-2020-00019147-PR-TR-CTL court's grant of the defendants' motion to disqualify the plaintiff's law firm for hiring an attorney who had previously represented another defendant in the case. Thus, Meza is not factually on point, where Goodwin did not represent Clements as an attorney. Certainly, as the trust protector, Goodwin has a fiduciary interest in protecting the trust, but there is no 'common interest' as Goodwin was not Clements' attorney. (Meza, at p. 981 ['Under the common interest doctrine, an attorney can disclose work product to an attorney representing a separate client without waiving the attorney work product privilege if (1) the disclosure relates to a common interest of the attorneys' respective clients; (2) the disclosing attorney has a reasonable expectation that the other attorney will preserve confidentiality; and (3) the disclosure is reasonably necessary for the accomplishment of the purpose for which the disclosing attorney was consulted.' Emphasis added].) As such, Meza does not support Goodwin's objections.

The emails at issue purportedly discuss Parker's trustee fees, which are relevant to Parker's defense to the FAP: that in 2018 all parties decided her trustee fees were not objectionable and no further action was taken regarding the fees. In denying in part Shvil's motion for summary adjudication, the Court previously stated that Parker's defense presented several triable issues. Thus, evidence relating to Parker's defense is relevant to this litigation, and without a proper objection, there is no grounds to deny discovery regarding the same.

Therefore, the motion to compel production is GRANTED. Goodwin is ordered to serve a code-compliant response within 10 days of this ruling.

Counsel for Parker 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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