Judge: Olga Alvarez, Case: 37-2022-00018301-PR-TR-CTL, Date: 2023-10-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 10, 2023

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

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Motion to Quash (Probate) 37-2022-00018301-PR-TR-CTL IN RE: EDWARD GEE AND LIN GAN GEE REVOCABLE TRUST, DATED OCTOBER 14, 1997 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/14/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion to Quash or Modify Subpoena for Production of Business Records to Chase Bank filed by Edward Gee is GRANTED IN PART.

The requests for monetary sanctions are DENIED.

I. Background On October 14, 1997, Edward Gee ('Petitioner') and Lin Gan Gee ('Decedent') executed the Edward Gee and Lin Gan Gee Revocable Trust ('Trust'). Decedent died on December 31, 2009. Petitioner and his daughter, Sue Fong Gee ('Respondent'), are co-trustees of the Trust. Paul M. Gustafson is Respondent's husband.

On May 13, 2022, Petitioner filed a Petition for Orders: (1) Invalidating Purported Testamentary Instruments, and Deeds Based on Lack of Authority, Lack of Capacity, and Undue Influence; (2) Financial Elder Abuse; (3) Cancellation of Instrument; (4) Quiet Title; (5) Order Confirming and Directing Transfer of Real Property to the Trust; (6) Order Compelling a Trust Accounting; (7) Order Compelling Production of Trust Information; (8) Order Surcharging Trustee for Breach of Fiduciary Duties; (9) Order Prohibiting Trustee From Using Trust Funds to Defend this Petition; (10) Order Immediately Suspending and Removing Trustee and Appointing Successor Trustee; (11) Order for Rent Owed; (12) Remedies for Financial Elder Abuse; (13) Order Awarding Attorney's Fees; and (14) Order Awarding Compensatory, Punitive, and Exemplary Damages ('Petition'). (ROA 1.) The Petition alleges, among other grounds, that the Trust became irrevocable upon Decedent's death and the following instruments executed after Decedent's death are invalid: two revocations of Trust B, the Second Amendment and Restatement of the Trust, three real property subtrusts, deeds transferring properties from the Trust to the real property subtrusts, a promissory note from one of the real property subtrusts to the Trust, and the Third Amendment to the Trust. The first cause of action seeks to invalidate these instruments on three grounds: (1) the instruments are invalid based on irrevocability of the Trust due to Decedent's death; (2) lack of capacity; and (3) undue influence from Respondent and her husband, Paul M. Gustafson. The remaining causes of action flow from Sue and Paul's (collectively 'Respondents') alleged improper actions regarding the challenged instruments, including breaches of fiduciary duties.

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3000790 CASE NUMBER: CASE TITLE:  IN RE: EDWARD GEE AND LIN GAN GEE REVOCABLE TRUST, DATED  37-2022-00018301-PR-TR-CTL Petitioner filed a Supplement to Petition on February 1, 2023, and a Second Supplement to Petition on May 1, 2023. (ROA 33, 47.) On July 14, 2023, Petitioner filed the instant Motion to Quash or Modify Subpoena for Production of Business Records to Chase Bank and request for $12,627 in monetary sanctions. (ROA 55.) Petitioner moves pursuant to CCP §§ 1987.1 and 1987.2 on the grounds that the Chase Bank subpoena seeks Petitioner's personal financial information and records protected from disclosure by his State constitutional right to privacy, and there has been no showing that Respondent's right to discovery outweighs Petitioner's privacy right.

At issue in the motion are records of rent payments received by Respondent on Petitioner's behalf, while managing Petitioner's apartment building located on Cass Street, in Pacific Beach.

On September 28, 2023, Respondent filed an opposition. (ROA 67.) On October 4, 2023, Petitioner filed a late reply. (ROA 71.) II. Discussion Compliance with the Rules of Court As a preliminary matter, 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 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 57, 68, 69, and 72.) Petitioner fails to comply with CRC 1.201(a)(2), which requires redaction of financial account numbers from all pleadings and other papers filed in the court's public file. (See ROA 55, 57.) Petitioner's untimely reply, which was due on October 3, 2023, fails to comply with CCP § 1005(b) and CRC 3.1300(a). (ROA 71.) As such, the Court will not consider the late reply and supporting declaration.

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

Motion to Quash On May 10, 2023, Respondent served on Chase Bank a subpoena for the production of the following records: 1. All bank statements from January 1, 2010 to the present for EDWARD GEE for account number ending 3297.

2. All deposit records from January 1, 2010 to the present for EDWARD GEE for account number ending 3297 including without limitation, deposit slips.

3. All canceled checks from January 1, 2010 to the present for EDWARD GEE for account number ending 3297.

4. Signature cards for account number ending 3297.

5. All bank statements from January 1, 2010 to the present for EDWARD GEE for account number ending 6307.

Petitioner argues the Chase Bank subpoena seeks records protected by his right to privacy. Except for the deposits of rental income, there is no basis to request the documents sought by the subpoena.

Petitioner argues that considering Respondent's claims and defenses, Respondent's right to discovery does not outweigh Petitioner's reasonable expectation of privacy in the documents sought by her Calendar No.: Event ID:  TENTATIVE RULINGS

3000790 CASE NUMBER: CASE TITLE:  IN RE: EDWARD GEE AND LIN GAN GEE REVOCABLE TRUST, DATED  37-2022-00018301-PR-TR-CTL subpoena.

Petitioner further argues the subpoena is overbroad, requesting documents from two separate accounts from January 1, 2010, to the present despite their lack of relevance to either party's claims. Petitioner contends the subpoena is plainly calculated to annoy and harass him, rather than lead to the discovery of admissible evidence. Petitioner argues that even if Respondent's 'Petition had somehow put his financial accounts into question, there's no basis to discover over thirteen years of financial records, including records that would necessarily also include the records of third parties not implicated in the present litigation.' (ROA 55, Mot. at p. 7, italics omitted.) Petitioner claims his attempts to meet and confer with Respondent have been unsuccessful as Respondent asserts that Petitioner's accounts are Trust accounts.

In opposition, Respondent argues the documents sought are needed to defend against Petitioner's false allegations and to provide an accounting to the Court. Respondent claims there is no other reasonable alternative for obtaining these records because tenants have moved in and out of the apartments in the past 16 years, and as to the existing tenants, it would be unreasonable to expect Respondent to request their bank records. There is no other record of rents paid in cash. Petitioner has allowed Respondent to deposit rent (cash and checks) from the apartments into the account for many years. Accordingly, Respondent' interests in obtaining these records clearly outweigh Petitioner's claimed invasion of financial privacy.

Respondent further argues that Petitioner's interrogatory responses confirm that he needs the Chase Bank records to establish his claims of theft against Respondents. Further, Petitioner has no reasonable expectation of privacy as to his Chase Bank records because it is a joint checking account held with his other daughter, Susan Gee Chin.

Respondent further argues Petitioner's motion should be denied because the motion fails to comply with CRC 3.1345 (separate statement) and 3.201 (redaction of financial account information).

Analysis A party may obtain discovery from a non-party by way of a deposition subpoena for business records.

(CCP § 2020.010(a)(3).) An entity that has been served with a deposition subpoena for production of records is obligated to produce all responsive documents within its 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 good faith effort to informally resolve the dispute. (CCP §§ 1987.1 and 2025.480.) Here, the Petition alleges that Respondent has misappropriated rent from the Trust real properties without Petitioner's knowledge. (ROA 1, Pet. at ¶ 124.) Petitioner requests an order that Respondent account for all her actions as co-trustee of the Trust since the death of Decedent in December 2009. (Id., at ¶ 126.) The subpoena to Chase Bank seeks records from two bank accounts; a checking account allegedly held jointly with Petitioner's other daughter, Susan Gee Chin, and a savings account. There is no Trust bank account.

It appears from the allegations that Respondent reimbursed herself with the rental income for expenses related to managing the apartments, rather than being paid separately by Petitioner. It is undisputed Respondent has been depositing rent payments from the apartments into Petitioner's bank account(s).

Respondent claims she lacks the records to establish Petitioner's receipt of rent from the apartments.

Thus, a proper record of the rents received by, and payments made to Respondent, appears unavailable.

As such, the Court finds the subpoena seeks financial records relevant to both party's claims.

Respondent has conceded as much in attempting to meet and confer and seeking modification of the Calendar No.: Event ID:  TENTATIVE RULINGS

3000790 CASE NUMBER: CASE TITLE:  IN RE: EDWARD GEE AND LIN GAN GEE REVOCABLE TRUST, DATED  37-2022-00018301-PR-TR-CTL subpoena as an alternative remedy, rather than objecting to the subpoena in its entirety. Indeed, in alleging that Respondent has misappropriated rents, Petitioner has put at issue the financial records of the bank accounts involved. In addition, to prove that Respondent has been misappropriating funds from the Trust and committed breaches of duty, Petitioner will need the bank account records as well.

Petitioner's bank records are necessary to trace the rent deposits from December 2009, when Respondent became co-trustee of the Trust, through the present.

Thus, the Court is not persuaded that access to the bank records should be restricted based on privacy grounds. (Vinson v. Superior Court (1987) 43 Cal.3d 833, 842-843 ['But even though plaintiff retains certain unwaived privacy rights, these rights are not necessarily absolute. On occasion her privacy interests may have to give way to her opponent's right to a fair trial. Thus courts must balance the right of civil litigants to discover relevant facts against the privacy interests of persons subject to discovery.'].) There can be no expectation of privacy with respect to the records related to the rents received and deposited by Respondent with Petitioner's permission, and any expectation of privacy is outweighed by the relevance of the information sought. Further, there is no alternative means of obtaining the evidence, given that Respondent has not kept records of her own.

However, the subpoena as drafted is overbroad in scope. In addition to the deposit records and signature cards, the subpoena seeks all bank statements and all cancelled checks from January 2010 to the present, without limitation. Respondent does not show the relevance of all the bank statements and cancelled checks, which would necessarily include transactions unrelated to the rents received and the management of the Trust and involve third parties.

Therefore, the motion to quash is GRANTED in part.

Respondent is entitled to the following financial records from January 1, 2010, to the present: (1) the bank deposit records evidencing rents from the apartments, (2) all cancelled rent checks or checks evidencing payments related to the apartments, (3) all signature cards for account ending 3297, and (4) all redacted bank statements evidencing any money paid to Respondent.

As to sanctions, Petitioner seeks $12,627 in monetary sanctions pursuant to CCP § 1987.2(a).

Respondent seeks $6,000 in monetary sanctions. The Court does not find the motion was made or opposed in bad faith or without substantial justification, or that one or more of the requirements of the subpoena was necessarily oppressive. (CCP § 1987.2(a).) Therefore, the requests for sanctions are DENIED.

Counsel for Respondent 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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