Judge: Olga Alvarez, Case: 37-2022-00000892-PR-TR-CTL, Date: 2023-11-29 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 Motion Hearing (Probate) 37-2022-00000892-PR-TR-CTL IN RE THE MATTER OF THE THE WILLIAM M. DAVIS, SR. FAMILY TRUST DATED OCTOBER 20, 1981, AS AMENDED AND RESTATED IN ITS ENTIRETY ON CAUSAL DOCUMENT/DATE FILED: Motion - Other, 08/01/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for a Contempt Order against Kathleen Cook, an Order Compelling the Production of Documents, an Order for Fees and Costs Against Kathleen Cook for Non-Refundable Costs/Fees Associated with Cancelled Deposition of Kathleen Cook, and for an Order for Sanctions and Attorney's Fees filed by Respondent Susan L. Marchetti (ROA 102) is DENIED.

I. BACKGROUND William M. Davis ('Decedent') established the William M. Davis, Sr. Family Trust on October 20, 1981 ('Trust'). Decedent died on September 7, 2021, and was survived by three children: Kathleen Cook ('Petitioner'), Susan Leslie Marchetti ('Respondent'), and William M. Davis, Jr.

On January 7, 2022, Petitioner filed a Petition for Order Invalidating the Purported February 27, 2020 Amendment and Restatement of the Trust ('Petition'). (ROA 1.) The Petition alleges that the restatement of the Trust dated February 27, 2020 ('2020 Restatement'), which removes Petitioner as a beneficiary, is invalid based on Decedent's lack of capacity and undue influence from Respondent. The Petition also alleges that Decedent transferred the following real property from the Trust to Respondent in 2021, at which time he lacked capacity: (1) 826-28 26th Street, San Diego, California 92102 ('26th Street'): (2) 3225 Utah Street, San Diego, California 92104 ('Utah Street'); and (3) 2827 C Street, San Diego, California 92102 ('2827 C Street'). The petition requests the following orders: (1) the 2020 Restatement is void; (2) all of Decedent's assets, including those he conveyed to Respondent, are to be distributed pursuant to a restatement of the Trust dated January 18, 2006; (3) removal of Respondent as trustee, an accounting from Respondent, and appointment of a new trustee; and (4) costs of suit.

On August 25, 2022, Petitioner recorded lis pendens against the following properties: (1) 2849 C Street, San Diego, California ('2849 C Street'); (2) 26th Street; (3) Utah Street; and (4) 2827 C Street (collectively 'Properties').

On April 11, 2023, Respondent filed a motion seeking to expunge lis pendens recorded against the Properties. (ROA 64.) On May 31, 2023, the Court granted in part and denied in part this motion. (ROA 89, Minute Order filed May 31, 2023.) On June 23, 2023, Petitioner filed a Petition for Instructions Permitting Sale of Real Property by the Calendar No.: Event ID:  TENTATIVE RULINGS

3003775 CASE NUMBER: CASE TITLE:  IN RE THE MATTER OF THE THE WILLIAM M. DAVIS, SR. FAMILY  37-2022-00000892-PR-TR-CTL Trustee. (ROA 95.) This petition was supplemented at ROA 129.

On August 1, 2023, Respondent filed the instant motion for (1) a contempt order against Petitioner, (2) an order compelling the production of documents, (3) an order for fees and costs against Petitioner for non-refundable costs/fees associated with the cancelled deposition of Petitioner, and (4) an order for sanctions and attorney's fees. (ROA 102.) Respondent moves pursuant to CCP § 1209 for a contempt order against Petitioner for her willful failure to pay attorneys' fees awarded in conjunction with the previous motion to expunge lis pendens.

Respondent also moves for an order compelling Petitioner to produce documents and information in response to Respondent's various discovery requests, (3) for fees and costs against Petitioner for the non-refundable costs/fees incurred by Respondent and associated with a scheduled and cancelled deposition of Petitioner, and (4) an order for sanctions against Petitioner and her counsel of record, including but not limited to attorneys' fees incurred with this motion.

On November 14, 2023, Petitioner filed an opposition to the motion. (ROA 137.) On November 20, 2023, Respondent filed a reply. (ROA 138.) II. DISCUSSION A. Compliance with the Rules of Court As a preliminary matter, the Court notes that while Petitioner refers to 'prongs' in the motion, Petitioner essentially filed multiples motions combined into one: (1) a motion for contempt pursuant to CCP § 1209, (2) a discovery motion to compel production, (3) monetary sanctions related to a deposition that did not take place, and (4) attorney's fees pursuant to CCP § 2023 .010 and 2031.300. (ROA 102, Notice of Mot. ['The Motion has four separate prongs.'] As such, treating the request for discovery sanctions as part of the discovery motion, Respondent has effectively filed at a minimum, three separate motions as one, to be heard at one hearing. Thus, the motion is procedurally improper and may be denied on this basis. Notwithstanding the deficiency, the Court will rule on the merits of the motion for the sake of economy and given no objection by Petitioner.

Respondent is admonished that compliance with proper motion procedure is required, and failure to comply in the future will be grounds to deny the motion.

The Court further notes that 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, 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 ROA 104, 130, 137, 140.) Both parties are directed to comply with all applicable rules in the future.

B. Motion for Contempt Order Respondent argues that the request for a contempt order is based on Petitioner's ongoing refusal to comply with the award of attorney's fees issued by the Court on May 31, 2023, and to pay the $5,400 as ordered. Respondent claims that as of July 31, 2023, neither Respondent nor her counsel has received any form of payment for the attorney's fees award.

Here, although the motion generally cites to CCP § 1209, the motion fails to comply with the statutory requirements: no affidavit pursuant to CCP § 1211 has been filed, and the motion is devoid of any legal Calendar No.: Event ID:  TENTATIVE RULINGS

3003775 CASE NUMBER: CASE TITLE:  IN RE THE MATTER OF THE THE WILLIAM M. DAVIS, SR. FAMILY  37-2022-00000892-PR-TR-CTL discussion of the elements required to be met, and why the Court should issue an Order to Show Cause.

(CCP § 1211 ['When the contempt is not committed in the immediate view and presence of the court, or of the judge at chambers, an affidavit shall be presented to the court or judge of the facts constituting the contempt, or a statement of the facts by the referees or arbitrators, or other judicial officers.'] Further, Petitioner asserts that she is seeking to obtain the necessary funds to comply with the order prior to the hearing date on this motion. Thus, the issue may be moot by the time of the hearing.

Therefore, the motion is DENIED.

C. Motion to Compel Production On June 12, 2023, Respondent's counsel delivered Respondent's Supplemental Demand for Production of Documents, Set One, and the Request for Production of Documents, Set Two. Responses were due on July 17, 2023, but Respondent has not received any responses. Respondent argues that counsel engaged in some meet and confer and extended the deadline to respond to July 25, 2023, but no responses were produced as of July 31, 2023.

In opposition, Petitioner argues that she served responses on November 14, 2023, which are in substantial compliance with the Code. The delay in responding was due to the inadvertence and/or excusable neglect by Petitioner's former counsel who failed to properly forward the discovery requests to Petitioner and otherwise communicate with Petitioner's current counsel that discovery demands (and the instant motion) were outstanding.

Here, there is no dispute that responses have been served. Thus, the motion is moot.

Respondent argues that monetary sanctions should be awarded against Petitioner for her untimely responses, which are not in substantial compliance with the CCP. Respondent further argues that Petitioner either withheld documents or misrepresented material facts to the Court. However, these issues are beyond the scope of a motion to initially compel responses. If Respondent is dissatisfied with Petitioner's discovery responses, Respondent may move to further compel responses.

Therefore, the motion is DENIED as moot.

D. Motion for Costs/Fees of Cancelled Deposition Respondent claims that on June 12, 2023, Respondent served a letter on Petitioner's former counsel inquiring whether Petitioner preferred San Diego for holding her deposition, as opposed to holding it in Spokane, Washington.

On or about June 28, 2023, Respondent served on Petitioner's former counsel a Notice of Deposition, which showed the deposition was scheduled for August 10, 2023, in Spokane, Washington. But Mr.

Sciarretta (Petitioner's former counsel) did not contact Respondent's counsel to suggest Petitioner could be available for deposition in San Diego instead.

In opposition, Petitioner argues that Respondent's request for expenses associated with the cancelled deposition is unspecified and unsupported by competent evidence, and any expenses resulted from Respondent's unilateral scheduling of an in person and out-of-state deposition.

Here, Respondent states that Mr. Sciarretta called counsel on July 20, 2023, to inform counsel that Petitioner was not available to sit for deposition on August 10, 2023, in Spokane. Petitioner also submitted an email from Mr. Sciarretta addressed to Respondent's counsel, dated July 31, 2023, discussing Petitioner's unavailability. (ROA 137, Vahidi Decl., Exh. E.) As such, Respondent was aware before August 10, 2023, that Petitioner would not be available for deposition. Respondent does not Calendar No.: Event ID:  TENTATIVE RULINGS

3003775 CASE NUMBER: CASE TITLE:  IN RE THE MATTER OF THE THE WILLIAM M. DAVIS, SR. FAMILY  37-2022-00000892-PR-TR-CTL present any evidence that Petitioner ever agreed to a date and location for her deposition. Rather the evidence shows Respondent unilaterally scheduled the deposition without any confirmation from Petitioner. Thus, the Court finds that any expenses/costs incurred with respect to the cancelled deposition was not the result of Respondent's conduct.

Further, these alleged expenses are not substantiated, and Respondent incomprehensibly argues that 'counsel believes the non-refundable costs and fees associated with canceling the scheduled Pending Deposition will be minimal or nothing ...; however, to the extent Respondent cannot recover 100% of the costs/fees already paid, she should be entitled to full reimbursement by Petitioner for such non-refundable costs and fees.' (ROA 102, Mot. at p. 5, emphasis added.) Thus, it is unclear to the Court whether any expenses were in fact incurred and what Respondent is seeking through the instant motion.

To the extent Respondent may be seeking monetary sanctions pursuant to CCP § 2025.450, sanctions are not warranted. As Petitioner notes, there is no evidence that Respondent met and conferred with Petitioner as required under CCP § 2016.040, and no meet-and-confer declaration from counsel. (CCP § 2025.450(b)(2).) The Court also finds that Petitioner acted with substantial justification in not appearing for deposition in August 2023, and given that Respondent allowed the expenses to be unnecessarily incurred, the imposition of monetary sanctions under the circumstances would be unjust.

Therefore, the motion for costs/fees of the cancelled deposition is DENIED.

E. Motion for Monetary Sanctions Respondent argues that the past two months highlight the general lack of prosecution by Petitioner in this action, and she must be held responsible for bringing this action without sufficient basis and then failing to move this case along as required. Respondent argues that 'Petitioner's general misuse of the discovery process, and specifically her nonresponses to multiple discovery requests and correspondence by Respondent's counsel, is more than sufficient to award sanctions against Petitioner and her counsel. Additionally, as part of the proposed sanctions, Respondent respectfully requests the Court order Petitioner to pay attorneys' fees incurred by Respondent in making this Motion, as well as anticipated attorneys' fees in replying to any opposition and appearing at a hearing. As of this date, Respondent has incurred $3,487.50 in attorneys' fees, and expects such amount to increase pending Petitioner's opposition.' (ROA 102, Mot. at p. 10.) Courts may impose monetary sanctions on any party for misuse of the discovery process. (CCP §§ 2023.010, 2023.030(a).) Further, '[e]xcept as provided in subdivision (d) [of § 2031.300], 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 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).) Here, as discussed, there is no basis to award monetary sanctions based on the general allegations of misuse of the discovery process. As to the untimely discovery responses, the Court finds that given what appears to have been the neglect of former counsel (Mr. Sciarretta) in handling this matter and the fact responses have been served, the imposition of monetary sanctions would be unjust.

Therefore, the motion for monetary sanctions is DENIED.

Counsel for Petitioner is directed to serve notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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