Judge: Ronald F. Frank, Case: 22TRCV00362, Date: 2023-03-21 Tentative Ruling
Case Number: 22TRCV00362 Hearing Date: March 21, 2023 Dept: 8
Tentative Ruling
HEARING DATE: March 21, 2023
CASE NUMBER: 22TRCV00362
CASE NAME: Cathrine M.
Herrera, as successor trustee to amend and restatement of the Jan Kumar
Agarwala Sperate Property Trust dated September 12, 2010 v. Darlene Agarwala,
et. al. .
MOVING PARTY: (1)-(3):
Plaintiff, Paul Herrera, as 2nd
Successor Trustee to the Amended and Restatement of the Jan Kumar Agarwala
Separate Property Trust dated September 13, 2010
(4): Defendants
Darlene Darlene, Pronita and Sabina Agarwala
RESPONDING PARTY: (1)-(3): Defendants Darlene, Pronita and Sabina Agarwala
(4):
Plaintiff, Paul Herrera, as 2nd Successor Trustee to the Amended and
Restatement of the Jan Kumar Agarwala Separate Property Trust dated September
13, 2010
TRIAL DATE: None set
MOTION: (1) Motion to Compel Darlene Agarwala to Provide Further
Responses to Requests for Production, Set One
(2) Motion
to Compel Pronita Ann Agarwala to Provide Further Responses to Requests for
Production, Set One
(3) Motion
to Compel Sabina Agarwala Miro to Provide Further Responses to Requests for
Production, Set One
(4) Motion
for Protective Order
(5) Monetary Sanctions
TENTATIVE RULING: (1) Motion to Compel Darlene Agarwala mostly
GRANTED; grant 3, 4, 9-16, 21-22, 25 and 26; deny 5, 6, 17, and 18, grant in
part and deny in part 19, 20, 23, 24, and 27-29; argue 30 & 31 (cell phone records)
(2) Motion to Compel Pronita Ann Agarwala: the same
(3)
Motion to Compel Sabina Agarwala Miro: the same
(4)
Motion for Protective Order GRANTED
(5)
Sanctions GRANTED in part, denied in part
OVERVIEW: This is a
partition action which generally contains two phases: the ownership phase and
the accounting phase. The subject
discovery pertains in part to both phases, seeking documents that each of these
three relevant defendants might have that might evidence support for a defendant’s
claim of ownership including a financial contribution, payment of expense, or
receipt of financial benefit regarding one or both of the parcels of real
property that are the subject of this litigation, and seeking information
bearing on the accounting phase where the parties may dispute a settling of
accounts once the properties are sold. The
dispute over the phrasing of specially defined terms is an unfortunate
byproduct of our adversary system of litigation where counsel believe they are
ethically obligated to raise every objection that can even arguably be asserted. In the world of civil discovery motions,
however, there are guidelines from longstanding published Second District
opinions such as Deyo v. Kilbourne that enable counsel to preserve objections
while still providing meaningful responses by applying a fair reading of what
is being requested. Defendants largely failed
to heed those guidelines in deciding not to produce hardly anything despite the
clear thrust of the majority of the categories and a reasonable reading of the
requests, necessitating motion practice.
Plaintiff is not blameless here, wrongly seeking discovery of tax
returns. The Court will discuss the
details below.
I. BACKGROUND
A. Factual
On May 10, 2022, Plaintiff
Catherine M. Herrera, as successor trustee to Amend and Restatement of the Jan
Kumar Agarwala Separate Property Trust dated September 13, 2021 (“Plaintiff”)
filed a complaint against Darlene Agarwala, an individual, Pronita Ann
Agarwala, an individual, Sabina Agarwala Miro, an individual, Stephen Miro, an
individual, Christopher Miro, an individual, Gregory Mollner, an individual,
Pronita Ann Agarwala and Sabina Agarwala Miro as trustees of the 2010 Darlene
Agarwala Revocable Trust Dated 26, 2010, Prontina Ann Agarwala and Gregory
Mollner as trustees of 2010 Agarwala-Mollner Revocable Trust Mollner, Stephen
Miro and Sabine Miro as trustees of the Miro Family Trust Dated 8/7/21, all
Persons claiming an interest in the real properties described in the complaint
adverse to Plaintiff’s title or any cloud on Plaintiff’s title thereto, and
Does 1 through 100.
On November 11, 20222, Catherine
M. Herrera resigned as successor trustee and Paul Herrera accepted the position
and duties as successor trustee under the terms of the Jan Trust. On December
2, 2022, Plaintiff filed a First Amended Complaint (“FAC”) for: (1) Partition
of that Certain Real Property Commonly Known as 5021 W. 129th
Street, Hawthorne, CA 90250 APN: 4144-002-023; and (2) Partition of that
Certain Real Property Commonly Known as 521 ½ S/ Oak Street, Inglewood,
California 90301 APN: 4018-025-003.
On October 18, 2022, Plaintiff
served Requests for Production to Defendants, Darlene Agarwala, Pronita Ann
Agarwala, and Sabrina Agarwala Miro. After requesting and being granted
extensions of time to respond, Defendants allegedly served written responses on
November 23, 2022. However, Plaintiff argues that the majority of Defendants’
responses contained only boiler plate objections. (referencing to Response Nos.
1-6, 9-28 of Defendants, Darlene Agarwala; Pronita Ann Agarwala; and Sabrina
Agarwala Miro’s Response to Requests for Production of Documents (Set One),
Exhibit C to Declaration of Monica Amboss.) Further, Plaintiff contends that
the only documents were produced in response to Requests 7 and 8 with none of
the other documents requested being produced.
B.
Procedural
On January 9, 2023, Plaintiff,
Paul Herrera (“Plaintiff”) filed three separate motions to compel further
responses to Requests for Production Set One against Defendants, Sabina Agarwala
Miro, Pronita Ann Agarwala, and Darlene Agarwala.
On March 8, 2023, Defendants,
Sabina Agarwala Miro, Pronita Ann Agarwala, and Darlene Agarwala, each filed an
opposition.
On March 13, 2023, Plaintiff
filed a reply brief to each opposition
Additionally, on January 30,
2023, Defendants Darlene Agarwala, Pronita Ann Agarwala, Sabrina Agarwala Miro,
Stephen Miro, and Gregory Mollner filed a Motion for Protective Order
prohibiting the production of documents pursuant to the Deposition Subpoena for
Production of Records to Krost Certified Accountants & Consultants dated
January 5, 2023.
On February 14, 2023, Plaintiff
filed an opposition.
On March 10, 2023, Plaintiff’s
attorney filed a declaration in support of withdrawal of Plaintiff’s opposition
to Defendants’ motion for Protective Order, but the motion and concomitant
request for monetary sanctions remined on calendar.
II. MEET AND CONFER
Plaintiff
notes that after reviewing the responses to all three sets of discovery,
counsel for Plaintiff sent several meet and confer letters to counsel for
Defendants in an attempt to resolve the matters set forth in Plaintiff’s Motion
to Compel. Plaintiff’s counsel also notes that she also offered to use the
Court’s informal discovery resolution in further attempts to resolve the issue
and to obtain a full and complete response to Plaintiff’s document production
requests and the production of the actual requested documents. However,
Plaintiff notes that the parties’ meet and confer attempts have been
unsuccessful.
The
Court notes that the meet and confer process allows time for reflection and
reconsideration of a party’s initial position taken, and to enable possible
compromise or concession to avoid the time and cost of discovery motions. The IDC process is another safety valve to
avoid discovery motions, and even though the IDC statute has lapsed the Court
still employs this valuable tool as a way of informal resolution of contentious
disputes.
III.
ANALYSIS
A. Motion to Compel Further
Responses to Requests for Production
Legal Standard
“Unless otherwise limited by order
of the court in accordance with this title, any party may obtain discovery
regarding any matter, not privileged, that is relevant to the subject matter
involved in the pending action or to the determination of any motion made in
that action, if the matter either is itself admissible in evidence or appears
reasonably calculated to lead to the discovery of admissible evidence.” (Code
of Civ. Proc. § 2017.010.) For discovery purposes, information is regarded as
relevant “if it might reasonably assist a party in evaluating the case,
preparing for trial, or facilitating settlement thereof.” (City of Los
Angeles v. Superior Court (2017) 9 Cal.App.5th 272, 288.)
A motion to compel further
responses to a demand for inspection or production of documents (“RFP”) may be
brought based on: (1) incomplete statements of compliance; (2) inadequate,
evasive, or incomplete claims of inability to comply; or (3) unmerited or
overly generalized objections. (Code Civ. Proc., § 2031.310(c).) A
motion to compel further production must set forth specific facts showing good
cause justifying the discovery sought by the inspection demand. (See Code Civ.
Proc., § 2031.310(b)(1).) In Digital Music News LLC v Superior Court
(2014) 226 Cal.App.4th 216 at 224, the Court defined “good cause” as a showing
that there “a disputed fact that is of consequence in the action and the
discovery sought will tend in reason to prove or disprove that fact or lead to
other evidence that will tend to prove or disprove the fact.” If the
moving party has shown good cause for the requests for production, the burden is
on the objecting party to justify the objections. (Kirkland v. Sup.Ct
(2002) 95 Cal. App.4th 92, 98.)
"The court shall limit the
scope of discovery if it determines that the burden, expense, or intrusiveness
of that discovery clearly outweighs the likelihood that the information sought
will lead to the discovery of admissible evidence." (Cal. Code of Civ.
Proc. § 2017.020(a).) Generally, objections on the ground of burden require the
objecting party to produce evidence of (a) the propounding party's subjective
intent to create burden or (b) the amount of time and effort it would take to
respond. (See West Pico Furniture Co. of Los Angeles v. Superior Court In
and For Los Angeles County (1961) 56 Cal.2d 407, 417.) However, no such
evidence is necessary where discovery is obviously overbroad on its face. (See Obregon
v. Superior Court (1998) 67 Cal.App.4th 424, 431.)
Discussion
First,
Plaintiff argues that discovery is broad and seeks information relevant to the
subject matter of this action. argues that Defendants’ preliminary statement is
improper. Plaintiff contends that the Discovery act does not authorize a
preamble such as Defendants’ preliminary statement or introductory objections
for any discovery notice. While the Discovery Act does not authorize such a
preliminary statement, it does not prohibit one either. As long as each individual discovery response
is full and complete within itself, as the law requires, the Preliminary
Statement used by thousands of California practitioners is essentially superfluous.
Plaintiff also asserts that Defendants’ boilerplate
objections are improper, sanctionable, and must be removed. In reference to
Defendants’ responses to Requests Nos. 1-6 and 9-31 The Court notes that in the
moving parties’ three Separate Statements, each begins with request no. 3 as
being the first “discovery in issue”.
In opposition, Defendants assert that the complaint is
comprised only of two partition actions, and therefore, the scope of discovery
is limited. Defendants also assert that nearly every inspection demand seeks
documents which are not relevant to the causes of action of the first amended
complaint, and therefore, are improper discovery. Defendants contend that Plaintiff’s
inspection demands seek irrelevant records including: the defendants’ tax
returns (Demand Nos. 1, 2); the defendants’ cell phone records for the last
five years (Demand Nos. 30, 31); the defendants’ bank statements (Demand Nos.
3, 4); credit card statements (Demand Nos. 9, 10); premarital agreements
(Demand Nos. 17, 28); and defendants’ intervivos trust documents (Demand Nos.
19, 20.)
Defendants further contend that even documents having a
closer relationship to the subject properties are not relevant to Plaintiff’s
partition causes of action, such as those regarding potential sales (Demand No.
27), past rents and rental contracts (Demand Nos. 11, 12, 15, 16), past
appraisals (Demand No. 25, 26), acquisition costs (Demand Nos. 7, 8), property
tax statements (Demand Nos. 13, 14), insurance policies (Demands. 21, 22), and
“COMMUNICATIONS” regarding the ownership of the properties (Demand Nos. 5, 6.)
In reply, Plaintiff argues that he has not moved to compel
the production of tax returns. Plaintiff notes that Defendants’ separate
statements do not include Requests for Production Nos. 1 and 2, nor does it
include any reference or request to tax returns. Next, Plaintiff contends that
the Defendants’ cell phone records are properly limited. Plaintiff asserts that
what Defendants do not inform the Court of is that the only cell phone records
requested, are between Defendants and Decedent Jan Agarwala, a co-owner of the
properties subject to partition, and his wife and successor Trustee, Catherine
Herrera.
The Court GRANTS the three motions to compel as to Requests
3 and 4 (financial accounts for each of the two subject properties). The objections are overruled because most
reasonable attorneys would have interpreted the two requests as seeking such
documents from the acquisition date of the 129th Street Property in
Request No. 3 and the Oak Street Property as to Request No. 4 even though the
capitalized term “PROPERTY” was not included in the list of specially defined
terms. The refusal to produce responsive
documents based on such a reasonable reading of the thrust of the Request is
required by Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 and its
progeny. The Court will require
production of the financial account statements and registers “for” either of
the two relevant properties that are in a defendant’s care, custody or control. The Court will not require production of some
other document that mentions or refers to a monthly statement or register. A further verified written response to these
two requests is also being ordered. As to Requests 5 and 6, the Motions are
DENIED. These are indeed compound
requests seeking not only the operative documents themselves (deeds, appraisals
and closing statements as to each of the two subject properties), but also “communications
about those documents. The compound objection is sustained; Plaintiff
will need to separate out the two different categories of documents demands in
a future RFP. As to Requests 9 and 10, seeking evidence of
expenditures regarding each of the two relevant properties, the Court
GRANTS the three motions to compel.
Credit card receipts or cancelled checks or monthly bank statements and
similar record-keeping documents that contain proof of payment of an expense
item for either property, such as the purchase of materials or labor for
repairs or capital improvements must be produced. The Court’s comments as to the objections
noted for Requests 3 and 4 are equally pertinent here. A further verified written response to these
two requests is also being ordered.
As to Requests 11 and 12, seeking
evidence of rental income received regarding each of the two relevant
properties, the Court GRANTS the three motions to compel. Rent rolls, receipts, cancelled checks,
monthly bank statements, Excel or other spreadsheets where a defendant
maintained a record of rental income for either or both properties and similar
record-keeping documents that contain proof of receipt of rental income for
either property, must be produced. The
Courts comments as to the objections noted for Requests 3 and 4 are equally
pertinent here. A further verified
written response to these two requests is also being ordered. The Court also GRANTS the motion as to
Requests 13-16, which sought all property tax statements and all executed
rental contracts for either relevant property.
The Court’s comments as to the objections noted for Requests 3 and 4 are
equally pertinent here. A further
verified written response to these four requests is also being ordered.
The Court DENIES the motion as to
Requests 17 and 18, seeking “asset-related “DOCUMENTS without defining what is
meant by that two-word modifier of “Documents.”
Plaintiff may separately seek wills, trust agreements, codicils, powers
of attorney and other similar documents that specifically name either of the
two properties in them. As to Requests
19 and 20, which seeks trusts, declaration of trusts, and similar documents in
which a defendant is a trustee or beneficiary and in which either the 129th
Street Property or the Oak Street Property is specifically named, the Court
GRANTS in part and DENIES in part the motions to compel. The Motions are granted insofar as the
production of a trust agreement or declaration exists where either of the
relevant parcels are specifically named and a defendant is a trustee or
beneficiary, and a further verified written response is required, but the trust
document or documents may be produced in a redacted form to hide the
description of other assets or properties that are also included in the trust to address the defendants’ objection of invading
privacy interests.
As to Requests No. 21 and 22,
seeking insurance policies for either of the two relevant properties, the Court
GRANTS this request. Amounts of money
paid for property or liability insurance and the owner of such policies are
reasonably calculated to discovery potentially admissible evidence in a
partition action as bearing on ownership and accounting issues. The Court’s
comments as to the objections noted for Requests 3 and 4 are equally pertinent
here. A further verified written
response to these four requests is also being ordered. Requests No. 23 and 24
seek copies of recorded liens or encumbrances.
The motions to compel this request are GRANTED. While recorded liens in the possession,
custody or control of defendants or their counsel may well be available to both
sides form the County Registrar’s office, to the extent that defendants already
have such documents makes them subject to production. If Defendants do not have possession, custody
or control of some or all of these documents, a verified further response that
so states would be sufficient. The Court’s comments as to the objections noted
for Requests 3 and 4 are equally pertinent here. The Court GRANTS the motions to compel as to
Requests 25 and 26, seeking valuation appraisals for either of the relevant
properties, and the relevancy objections are overruled. The
Court’s comments as to the objections noted for Requests 3 and 4 are equally
pertinent here. A further verified
written response to these two requests is also being ordered.
Requests 27-29 seek documents that
show, discuss, or evidence the potential sale of either of the two relevant
properties or an accounting as to either property. The Court GFRANTS the
motions to compel as to these three requests as limited in this paragraph. “Accounting” is a specially defined term. The Court sustains in part and overrules in
part the overbreadth objection to this specially defined term, by limiting the
definition to the sub-categories in the definition of cash inflow or outflow
reports, accounting reports, a balance sheet, income and expense report,
P&L statement, management reports, and rent rolls, but not “taxes” or
“fiduciary disclosures.” The Court overrules
the objection to the specially defined term “Related To” and the objection to
“properties” since category J of the specially defined terms makes it clear
that the one word “Properties” means the two relevant properties collectively. The fact that Plaintiff added the article
“the” before the defined term “Accounting” does not make these requests ones as
to which the responding party could reasonably understand what was being sought
by the request and producing the one accounting that was ever done or the
multiple accountings that were done as to each of the two relevant properties.
Request Nos. 30-31 seek cell phone
records. That aspect of the Request is objectionable. What is not objectionable, and should have
been responded to, was the Request’s limitation that specified what the
requesting party was seeking: the times and dates of text messages between each
defendant and Jan Agarwala or Catherine Herrera for a five-year period. The Court will entertain argument as to
whether production of the text messages themselves, without producing every record
or every cell phone call or charge for a five-year period, would be reasonably
producible.
Sanctions
Plaintiff
asserts that sanctions should be awarded in the amount of $4,011 for each
Defendant (3). As noted two decades ago by the Second District in a case
arising from this same Southwest District, “[t]ypically reviewing courts have
not found the fees and costs incurred in adjudicating contentious issues
between parties to a partition to be ‘for the common benefit.’” (Finney v. Gomez (2003) 111
Cal.App.4th 527, 548–549.) It is not
uncommon for partition actions to be contentious litigation between or among
siblings such as the seven siblings in Lin v. Jeng (2012) 203
Cal.App.4th 1008, 1010, between unmarried co-habitants as in Finney, or
between tenants in common such as in Stutz v. Davis (1981) 122
Cal.App.3d 1. The parties should bear that
in mind in the later phases of this litigation.
The Court finds that many of the objections
lacked substantial justification, and there was a lack of substantial
justification in refusing to produce documents such as property tax bills or
receipts for expenses incurred as to the two relevant properties. But some of the objections were justified and
the Court sustained them. On balance,
the Court finds that the motions were necessitated by defendants failure to
make a fair reading of the majority of the requests and to participate
effectively in the meet and confer or IDC process that might have avoided the
need for these motions. The Court awards
a total of $5,000 in monetary discovery sanctions against defense counsel,
payable within 30 days.
B. Defendants’ Request for Protective Order
Discussion
Defendants
note that on January 5, 2023, Plaintiff issued a deposition subpoena for production
of documents to Krost Certified Accountants & Consultants, seeking the
production by January 30, 2023 of several years of the tax returns of
Defendants Darlene Agarwala, Protina Agarwala, Sabina Agarwala Miro, Gregory
Mollner, and Stephen Miro. First, Defendants asserts that tax returns are
privileged and not subject to discovery in a civil proceeding. Defendants
further assert that immediately upon receipt of the subpoena, Defendants’
counsel sent Plaintiff’s counsel a “meet and confer” letter, objecting to the
subpoena’s demand for tax returns and providing Plaintiff’s counsel with
citations to the law regarding the “taxpayer’s privilege,” and demanding the
withdrawal of the subpoena. However, Plaintiff’s counsel initially refused to
withdraw the subpoena, requiring Defendants to bring this motion.
Initially,
Plaintiff’s counsel filed an opposition to this motion on February 14, 2023,
however, since then, Plaintiff’s counsel has filed a declaration withdrawing
their objection, noting that they no longer oppose it.
The
Court GRANTS Defendants’ motion for a Protective Order.
Sanctions
Defendants have
requested sanctions in the amount of $3,373.50.
The fact that Plaintiff ultimately withdrew the opposition avoided the
need for a reply brief or oral argument on the merits of a patently justifiable
motion for protective order, and slightly mitigates the wrongful attempt to
invade the taxpayer privilege. But the
subpoena was not withdrawn, Plaintiff’s counsel first filed written opposition
before withdrawing it, did not offer to pay at least some of the fees and costs
incurred in making the motion, and no justification was offered for not immediately
withdrawing the subpoena at least to the duces tecum seeking tax returns. The learning experience will cost an award of
$2,000 in monetary discovery sanctions against Plaintiff’s counsel, payable in
30 days.
The monetary sanctions should be offset
against each other, resulting in a net monetary discovery sanction award of
$3,000 payable by Defendants’ counsel to Plaintiffs’ counsel within 30 days.