Judge: Olga Alvarez, Case: 37-2020-00031676-PR-TR-CTL, Date: 2023-10-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 17, 2023

10/18/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2020-00031676-PR-TR-CTL THE GEORGIA L. KING REVOCABLE TRUST, ESTABLISHED APRIL 22, 2011 CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/01/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Terminating Sanctions and Monetary Sanctions filed by Mary Victoria Arnolde is GRANTED IN PART and DENIED IN PART.

I. Background Georgia L. King ('Decedent') executed the Georgia L. King Revocable Trust on April 22, 2011 ('Trust').

Decedent died on February 14, 2017. Decedent was survived by two daughters: Mary Victoria Arnolde ('Arnolde') and Carolyn Candice Sciarretta ('Carolyn'). Carolyn died on June 19, 2020. Joseph A.

Sciarretta ('Sciarretta') is Carolyn's husband.

On September 9, 2020, Sciarretta filed a Beneficiary's Petition to Determine Validity of Purported Trust, Interpretation of Trust Terms and to Impose a Constructive Trust ('Sciarretta's Petition'). (ROA 1.) Sciarretta's Petition alleges that the Trust conflicts with Decedent's Will, and it seeks an order that the Will be incorporated into the Trust to further clarify Decedent's intent.

On January 11, 2022, Arnolde filed a Petition for Order: (1) Compelling Joseph Sciarretta to Account; (2) To Return Property that Belongs to the Trust (Prob. Code, §850 & §859); and (3) For Reformation of Trust ('Arnolde's Petition'). (ROA 46.) Arnolde's Petition alleges that Carolyn began acting as trustee of the Trust after Decedent's death; Carolyn never accounted for the Trust; Sciarretta should provide an accounting on behalf of Carolyn as Carolyn's personal representative; Sciarretta wrongfully took property belonging to the Trust; and Sciarretta fraudulently prepared the Trust so that Carolyn would be the sole beneficiary.

On July 29, 2022, Arnolde served Sciarretta with Specially Prepared Interrogatories (SROG), Set One, and Requests for Production of Document (RFP), Set Two. Sciarretta failed to respond, and on February 15, 2023, the Court granted Arnolde's motions to compel responses. (ROA 131, 132.) Sciarretta was ordered to serve responses to the discovery without objection within 21 days, and to pay $2,220 in sanctions within 90 days. (Id.) Sciarretta appeared at the hearing on February 15, 2023, and he was served with the Notice of Ruling on February 16, 2023. (ROA 131, 132, 134.) On April 12, 2023, Arnolde filed a motion for terminating sanctions on the grounds that Sciarretta failed to provide code-compliant response to RFP, Set Two, did not provide any responses to SROG, Set One, Calendar No.: Event ID:  TENTATIVE RULINGS

3005985 CASE NUMBER: CASE TITLE:  THE GEORGIA L. KING REVOCABLE TRUST, ESTABLISHED APRIL 22,  37-2020-00031676-PR-TR-CTL and had not paid the monetary sanctions as ordered by the Court at the hearing on February 15, 2023.

(ROA 148.) On June 14, 2023, the Court denied the request for terminating sanctions without prejudice and ordered Sciarretta to 'serve code-complaint responses to the requests for production and the special interrogatories within 30 days of the date of this hearing,' and to pay and the $2,200.00 in monetary sanctions previously ordered on February 15, 2023, within 30 days. (ROA 165, Minute Order dated Jun.

14, 2023.) In addition, the Court imposed $1,410 in monetary sanctions pursuant to CCP § 2031.320(c), to be paid within 60 days of the order. (Id.) The Court initially considered imposing sanctions pursuant to CCP § 177.5, but ultimately refrained from imposing them after oral argument. (Id.) Sciarretta appeared at the hearing and was later served with the Notice of Ruling. (ROA 165, 167.) On August 1, 2023, Arnolde filed the instant motion for terminating and monetary sanctions based on Sciarretta's failure to comply with the June 14, 2023 order. (ROA 168.) Arnolde argues that while Sciarretta has paid the $2,200 sanctions ordered in February 2023, Sciarretta has willfully failed to provide code-compliant responses to the discovery requests despite the Court's orders. As such, Arnolde seeks terminating sanctions in the form of striking Sciarretta's Petition, striking Sciarretta's response to Arnolde's Petition, entry of default judgment against Sciarretta on Arnolde's Petition, and $1,410 in monetary sanctions. (Id.) On October 5, 2023, Sciarretta filed an opposition arguing as follows: Here, there has been no prejudice to Victoria Mary Arnolde. No trial date has been set in this matter, and discovery is ongoing. Moreover, prior to the date of the hearing on this Motion, Joseph A. Sciarretta will serve moving party with Further Responses to the discovery at issue: Arnolde's Request for Production (Set Two) and Arnolde's Special Interrogatories (Set One). Joseph A. Sciarretta will provide the Court with a Proof of Service of said Further Responses. In sum, there has been no prejudice to Arnolde, and Terminating Sanctions would not appropriate. Based on the foregoing, Joseph A. Sciarretta requests that the Court deny Arnolde's Motion for Terminating Sanctions.

(ROA 186, Oppo. at p. 2.) On October 11, 2023, Arnolde filed a reply. (ROA 188.) Arnolde states that discovery responses were finally served on October 10, 2023, but Sciarretta has not paid the $1,410 in sanctions ordered on June 14, 2023, which were due by August 14, 2023. Arnolde argues that by his dilatory conduct, Sciarretta has managed to delay further proceedings in this case for well over a year.

II. Discussion A. Terminating Sanctions If a party fails to obey an order compelling responses to requests for production, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction. (CCP § 2031.320(c).) Terminating sanctions include the following: (1) an order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process; (2) an order staying further proceedings by that party until an order for discovery is obeyed; (3) an order dismissing the action, or any part of the action, of that party; (4) an order rendering a judgment by default against that party. (CCP § 2023.030(d).) A court has discretion in choosing a discovery sanction, but this discretion must be exercised in a manner consistent with the basic purposes of those sanctions, which is to compel disclosure of discoverable information. (Rutledge v. Hewlett-Packard Co. (2015) 238 Cal.App.4th 1164, 1193.) '[S]anctions may not be imposed solely to punish the offending party,' and 'the sanction chosen should not provide a windfall to the other party, by putting the prevailing party in a better position than if he or she had obtained the discovery sought and it had been favorable.' (Ibid.) Calendar No.: Event ID:  TENTATIVE RULINGS

3005985 CASE NUMBER: CASE TITLE:  THE GEORGIA L. KING REVOCABLE TRUST, ESTABLISHED APRIL 22,  37-2020-00031676-PR-TR-CTL 'The discovery statutes thus 'evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.' [Citation.]' (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604–605 [emphasis in original].) '[T]erminating sanctions are to be used sparingly, only when the trial court concludes that lesser sanctions would not bring about the compliance of the offending party.' (R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 496.) Here, the instant motion concerns the same discovery issues that were the subject of the prior motion for terminating and monetary sanctions. In the previous order of June 14, 2023, the Court found that terminating sanctions would be too severe given the circumstances, and instead, ordered Sciarretta to serve code-compliant responses and to pay monetary sanctions. (ROA 165, Minute Order dated Jun.

14, 2023.) Despite the Court's order from June 14, 2023, Sciarretta did not serve discovery responses as instructed nor pay $1,410 in monetary sanctions, which were due by August 14, 2023. However, as acknowledged in the reply, responses were finally served on October 10, 2023. Thus, the Court finds the request for terminating sanctions is moot. However, the Court will impose monetary sanctions as discussed below.

B. Monetary Sanctions The court may also impose monetary sanctions against a party that fails to obey an order compelling responses to requests for production. (CCP § 2031.320(c).) Here, although responses were due within 30 days from June 14, 2023, Sciarretta served responses on October 10, 2023, well after the motion papers, including the opposition, were filed. Sciarretta has not shown any justification for failing to comply with the Court's orders, and thus, monetary sanctions are warranted.

Arnolde seeks $1,410 based on three hours of attorney work at the hourly of $450, and the motion filing fee of $60. The Court finds that this amount is reasonable and Sciarretta does not argue otherwise.

Therefore, the request for monetary sanctions is GRANTED. Sciarretta is ordered to pay $1,410 to counsel for Arnolde within 60 days of this hearing.

Sciarretta is also ordered to pay $1,410 to Arnolde's counsel as ordered on June 14, 2023, within 60 days of this hearing.

C. Sanctions Under CCP § 177.5 'A judicial officer shall have the power to impose reasonable money sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification.' (CCP § 177.5.) Sanctions pursuant to section 177.5 may be imposed by the court on its own motion after notice and an opportunity to be heard. (CCP § 177.5.) If $1,000 or more in sanctions are imposed, the Court will report the matter to the State Bar of California as required under Business and Professions Code section 6086.7(a)(3).

As discussed above, Sciarretta violated this Court's orders from February 15, 2023, and June 14, 2023, and he has failed to show good cause or substantial justification for his actions. At the hearing in June 2023, the Court considered imposing sanctions pursuant to CCP § 177.5 but declined to do so after oral argument.

Considering the instant motion and Sciarretta's repeated failure to timely comply with the Court's orders without any good cause or substantial justification, the Court finds that monetary sanctions under CCP § 177.5 are warranted. The Court imposes $1,500 in sanctions to be paid to the Court within 30 days of Calendar No.: Event ID:  TENTATIVE RULINGS

3005985 CASE NUMBER: CASE TITLE:  THE GEORGIA L. KING REVOCABLE TRUST, ESTABLISHED APRIL 22,  37-2020-00031676-PR-TR-CTL this order.

Counsel for Arnolde 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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