Judge: Olga Alvarez, Case: 37-2022-00018969-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 Discovery Hearing (Probate) 37-2022-00018969-PR-TR-CTL IN THE MATTER OF DAVID DAMON ROSENAUR 1990 LIVING TRUST DATED MARCH 31, 1990, AS AMENDED AND RESTATED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 07/03/2023

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 Compel Compliance with Deposition Subpoena for the Production of Business Records filed by Petitioner is DENIED as moot.

The requests for monetary sanctions are DENIED.

The Helvetica Group's evidentiary objections (ROA 224) are OVERRULED.

I. Background This case concerns the David Damon Rosenaur 1990 Living Trust ('Trust'), which was amended and restated several times. Settlor died on February 14, 2019.

Sandra Rosenaur ('Petitioner') is Settlor's widow and a beneficiary under the Trust. Respondent Edward Gorelick ('Gorelick') served as the successor trustee of the Trust and a subtrust ('Trust Q') after Settlor's death. Upon Settlor's death, the Trust was to be distributed and administered for Petitioner's benefit, including a cash gift to Trust Q, quarterly payments from Trust Q to Petitioner, and the exclusive use of and possession of Trust Q's real property known as the 'Sapphire Property.' The Helvetica Services, Inc. dba The Helvetica Group ('Helvetica') is a company owned by Trustee's son-in-law, Chad Mestler. Helvetica is alleged to have been the bookkeeper for Trust Q, or it was at least paid for bookkeeping as reported in Gorelick's accounting.

On May 19, 2022, Petitioner filed a Petition for Accounting to compel Gorelick to account. (ROA 1.) On June 30, 2022, Gorelick filed a Petition for Instructions. (ROA 19.) On July 5, 2022, the Court granted the Petition for Accounting, '[c]ompelling trustee Edward Gorelick to file and serve a declaration not later than 09/30/2022 a code complaint [sic] account of Trust 'Q' providing the detail set forth in Probate Code sections 16063 and 1061, et seq., covering the period of administration from February 24, 2019 to June 30, 2022.' (ROA 22, Minute Order filed Jul. 5, 2022.) On November 3, 2022, Bruce Cohen, a beneficiary under the Trust, filed a Petition to Compel Trust Calendar No.: Event ID:  TENTATIVE RULINGS

2995024 CASE NUMBER: CASE TITLE:  IN THE MATTER OF DAVID DAMON ROSENAUR 1990 LIVING TRUST  37-2022-00018969-PR-TR-CTL Information, Accountings, and Records. (ROA 35.) On January 24, 2023, Jason Cohen, a beneficiary under the Trust, filed a Petition for Appointment of Guardian Ad Litem ('GAL'), for appointment of a GAL for his minor child, Jordan Ella Cohen. (ROA 57.) The Court granted this petition. (ROA 72, Order Appointing GAL filed Jan. 31, 2023.) On January 31, 2023, the Court also granted partial relief with respect to the Petition to Compel Trust Information, Accountings, and Records (items 3 and 4 of ROA 35), as modified: '(3) Within sixty (60) days, Trustee shall file as a declaration with this Court, and verify under penalty of perjury, a report of information and accounting of the Trust (to include the parent, administrative portion of the Trust) from February 24, 2019, to January 31, 2023. (4) Within sixty (60) days, Trustee shall file as a declaration with this Court, and verify under penalty of perjury, a report of information and accounting of any subtrusts established under the Trust for the primary benefit of Bruce Cohen (including his Special Needs Trust) and/or Jordan Cohen from February 24, 2019, to January 31, 2023.' (ROA 70, Minute Order dated Jan. 31, 2023.) The balance of the Petition was continued to November 3, 2022. (Id.) Gorelick appealed this decision but requested to dismiss the appeal, which was dismissed on August 29, 2023. (Cohen v. Gorelick (Feb. 28, 2023, D081860) [nonpub. opn.].) On March 10, 2023, Petitioner filed a Petition for Order: (1) Removing and Suspending Trustee Edward Gorelick; (2) Finding that Trustee is Liable for Financial Elder Abuse; and (3) Instructing Successor Co-Trustees. (ROA 89.) The First Supplement to Petition was filed on May 4, 2023. (ROA 122.) On February 27, 2023, Bruce Cohen and Jason Cohen, as GAL for Jordan Cohen, filed a Petition for Suspension of Trustee and Appointment of Temporary Successor Trustee, seeking the removal of Gorelick as trustee of the Trust. (ROA 83.) This petition was supplemented at ROA 115.

On May 2, 2023, the Court granted the petition for suspension at ROA 83 as follows: '(3) Edward Gorelick is immediately suspended as trustee of the David Damon Rosenaur 1990, Living Trust dated March 31, 1990. 2. The Court appoints Rob Saslow and Stacey Haft as Temporary Co-Trustees until further order of the Court. The Court finds it has good cause given the personal relationship the current trustee maintains with Helvetica to make this order pending the appeal.' (ROA 121, Minute Order dated May 2, 2023.) On June 16, 2023, the Court suspended Gorelick's powers as trustee of Trust Q. (ROA 181, Minute Order dated Jun. 16, 2023.) The Court appointed Rob Saslow and Stacey Haft as Temporary Co-Trustees of Trust Q and ordered that 'Gorelick is precluded from using Trust Q funds to pay his attorney's fees in defense of this Petition under People ex rel. Harris v. Shine, supra, 16 Cal.App.5th 524...' The Court further ordered 'that Mr. Gorelick as Trustee of Trust Q is suspended under Probate Code section 1310(b) to prevent further loss or injury to Trust Q given that it has been more than three years since the death of decedent (February 2019), and to date, the beneficiary of Trust Q is unaware of the funds in the trust.' (Id.) On July 3, 2023, Petitioner filed the instant motion to compel compliance with the subpoena for the production of business records served on third party, Helvetica, in March 2023. (ROA 184.) Petitioner moves to compel compliance pursuant to CCP § 2025.480 on the grounds that Helvetica has objected and failed to comply with the subpoena. Petitioner argues Helvetica's production of limited documents is deficient, and requests $5,000 in sanctions for bringing the motion.

On September 28, 2023, Helvetica filed an untimely opposition, which was due on September 27, 2023.

(ROA 220.) Helvetica requests $5,070 in sanctions, arguing the motion could have been avoided had Petitioner engaged in a meaningful meet and confer.

On October 3, 2023, Petitioner filed her reply. (ROA 227.) Calendar No.: Event ID:  TENTATIVE RULINGS

2995024 CASE NUMBER: CASE TITLE:  IN THE MATTER OF DAVID DAMON ROSENAUR 1990 LIVING TRUST  37-2022-00018969-PR-TR-CTL II. Discussion As a preliminary matter, the Court notes Helvetica's opposition, which was due on September 27, 2023, is untimely and fails to comply with CCP § 1005(b) and CRC 3.1300(a). (ROA 220.) Notwithstanding the deficiency, the Court will consider the late opposition and supporting documents given the lack of objection by Petitioner and no prejudice to the parties.

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

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 a good faith effort to meet and confer. (CCP §§ 1987.1 and 2025.480.) Here, Petitioner issued a subpoena to Helvetica on March 29, 2023, with a production date of May 5, 2023. (ROA 185, Wittlin Decl., Exh. 4.) Helvetica did not produce documents by this deadline, and instead, objected to the subpoena while requesting a 20-day extension to produce the documents by May 20, 2023. (Id., at Exh. 8, Letter from Helvetica.) At the outset, in response to the subpoena, as to all twelve requests for documents, Helvetica asserted blanket objections on the grounds the subpoena is overbroad, seeks confidential information, and lacks specificity. (ROA 186, Petitioner's Separate Statement.) Notwithstanding the objections, Helvetica responded that in good faith, it would 'produce all requested documents that are not subject to these objections.' (Id.) On May 30, 2023, after the extended deadline to produce had passed, Helvetica produced limited documents. (Id., at Exh. 10, Production.) Counsel for Petitioner states his office did not receive the documents until June 9, 2023. (Id., at ¶ 11.) Counsel states that on June 22, 2023, he sent a meet and confer letter to Helvetica, but did not receive a response. (Id., at ¶ 12.) Petitioner argues that although Helvetica produced limited documents, the untimely production is deficient. In opposition, Helvetica claims it 'produced all documents that were collected from Helvetica's diligent searches – without holding anything back.' (ROA 220, Oppo. at p. 2.) Helvetica states that '[c]ontrary to Petitioner's assertions to the contrary, no documents were withheld based on an objection.' (Ibid.) As such, Helvetica presumably does not have more responsive documents to produce. Thus, the motion is moot.

Therefore, the motion is DENIED.

As to sanctions, from Helvetica's initial response that it would, in good faith, produce all documents not subject to the objections, and given that Helvetica produced limited documents without explanation and identification of the corresponding subpoena request, it was reasonable for Petitioner to assume there were more documents in Helvetica's possession and that Helvetica may be withholding documents based on its asserted objections. As Petitioner argues, Helvetica provided no way for Petitioner to evaluate the extent or nature of documents withheld based on its blanket objections. Thus, it is unclear from the production that all documents had been produced.

However, Petitioner's counsel contacted Helvetica once, by a letter dated June 22, 2023, after the limited production. (ROA 185, Wittlin Decl., Exh. 12.) The instant motion was filed on July 7, 2023. (ROA 184.) As such, the Court finds the one-letter meet and confer was insufficient, even if counsel attempted Calendar No.: Event ID:  TENTATIVE RULINGS

2995024 CASE NUMBER: CASE TITLE:  IN THE MATTER OF DAVID DAMON ROSENAUR 1990 LIVING TRUST  37-2022-00018969-PR-TR-CTL to meet and confer multiple times prior to production. (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294 ['An evaluation of whether, from the perspective of a reasonable person in the position of the discovering party, additional effort appeared likely to bear fruit, should also be considered. Although some effort is required in all instances ..., the level of effort that is reasonable is different in different circumstances, and may vary with the prospects for success. These are considerations entrusted to the trial court's discretion and judgment, with due regard for all relevant circumstances.' (Citation.)'].) A single letter without a response does not evidence a serious attempt to informally resolve the issues without the necessity of motion practice.

Therefore, the requests for sanctions are DENIED.

Counsel for Petitioner 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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