Jul 20, 2017

TENTATIVE RULINGS

LAW & MOTION CALENDAR

FRIDAY, JULY 14, 2017, 9:30 A.M.

Courtroom 12 – Honorable Bradford DeMeo

600 Administration Drive, Santa Rosa, CA

 

CourtCall is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.  CourtCall can be reached directly at (888) 882-6878.

 

The following tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument as to any motion, you must contact the Judicial Assistant by telephone at (707) 521-6547 by 4:00 p.m. today, Thursday, July 13, 2017.  Any party requesting an appearance must notify all other opposing parties of their intent to appear.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

 

1.      SPR-089788,  Matter of Arnold & Ruby Anderson Trust

This matter comes on calendar for petitioner Karen Anderson’s unopposed motions to compel respondent Devin Anderson’s attendance and testimony at deposition and to deem Request for Admissions (set one) admitted.  No written opposition to this motion has been filed with the court.

            The motion to compel respondent’s attendance and testimony at deposition is GRANTED, and monetary sanctions of $585.00 are ordered for fees/costs incurred in bringing the motion.

            The motion to deem the Requests for Admissions (set one) admitted is GRANTED, and monetary sanctions of $585.00 are ordered for fees/costs incurred in bringing the motion.

            In this probate matter, petitioner Karen Anderson (Trustee) served a Notice of Deposition on February 10, 2017 for respondent Devin Anderson to appear for deposition on March 30, 2017, and to bring various documents with him.  Respondent’s counsel at the time (Robert Stewart) requested an extension of time for all discovery as he intended to substitute out as attorney.  Petitioner’s counsel agreed to a two week extension of time and served a second deposition notice on March 29, 2017, moving the date of the deposition to April 21, 2017.  Respondent did not appear at the April 21, 2017 deposition; nor did he lodge any lawful or valid objections.  Petitioner’s subsequent attempts to resolve the motion informally were unsuccessful.

      On February 9, 2017, petitioner also served a Request for Admissions (set one) on respondent, with a due date of March 16, 2017.  No timely responses were served.  On or about March 27, 2017 (after responses were due), petitioner’s counsel granted respondent’s former counsel a two week extension of time to respond.  After respondent’s counsel withdrew, petitioner’s counsel notified respondent directly of the outstanding discovery.  No responses were ever provided. 

2.      SPR-089905, Matter of Lore Walmsley Trust
      Petitioner’s Motion to Compel Discovery Responses is DENIED as to (1) Demand for Production of Documents and Other Tangible Things, Set One; and (2) Specially Prepared Interrogatories, Set One, to Respondent Kemp. Respondent’s untimely responses served after the filing of the instant motion makes Petitioner’s motion moot.  However, late service of responses to the discovery propounded supports the issuance of sanctions against Respondent. 

      Bartholemew Kemp’s (“Respondent”) untimely responses to Petitioner’s propounded discovery served on June 16, 2017, is a misuse of the discovery process and is sanctionable conduct under California Code of Civil Procedure (“CCP”) §  2023.010.

        In Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants, the plaintiff, after failing to receive timely responses to propounded discovery by March 21, 2005, wrote a single letter to defendants requesting discovery responses by March 30, 2005. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 397-98.)  Defendants failed to provide discovery responses by March 30, 2005, and plaintiff subsequently notified defendants that it would file a motion to compel and request sanctions on April 1, 2005.  (Id.)  One (1) day prior to the filing of that motion to compel, defendants served responses to the propounded discovery and argued that the instant motion was moot because defendants complied and fully performed with the plaintiff’s discovery requests.  (Id.) The Court held that untimely responses served one (1) day prior to the filing of the motion to compel warranted the award of monetary sanctions even though the motion became moot.  (Id. at 408-09.)  The Court affirmed the trial court’s award of monetary sanctions to plaintiff. (Id. at 413.)

        Here, Respondent unquestionably failed to serve timely responses to the Discovery when it did not serve responses by May 11, 2017, nor request an extension.  Under CCP §§ 2030.290(a) and 2031.300(a), if a responding party fails to serve a timely response, the propounding party may move for an order compelling responses and the trial court at that point has the authority to grant the propounding party’s motion.  After multiple Petitioner-initiated e-mails and telephone calls in an attempt to meet and confer, Petitioner was patient and in a good faith effort agreed to push its due date for Discovery responses back from May 11, several times, until June 5, on which responses were still not served.

        Unlike defendants in Sinaiko Healthcare, who served untimely responses one (1) day prior to the filing of plaintiff’s motion to compel, Respondent in the present case served untimely Discovery responses four (4) days after the filing of the instant motion.  Respondent had ample opportunity to engage in meet and confer in a reasonable and good faith attempt to serve Discovery responses, but did not.  Respondent’s conduct of having failed to serve responses to Discovery by May 11, subsequently agreed to provide responses on or before May 26, reneged on agreements to serve responses on May 19, and promised to serve responses by June 16, upon Petitioner agreement to a Respondent condition precedent, were not reasonable and good faith attempts to informally resolve discovery issues between the parties.  Such conduct constitutes a misuse of the discovery process under CCP § 2023.010.

        California Rule of Court, Rule 3.1348(a) states that the court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery responses, even though the requested discovery was provided to the moving party after the motion was filed. Respondent’s full performance of serving untimely Discovery responses after Petitioner-initiated meet and confer attempts and the filing of the instant motion, may cause the instant motion to be moot, but does not preclude the court from awarding monetary sanctions for Respondent’s misuse of the discovery process.  Accordingly, Petitioner should be awarded monetary sanctions for Respondent’s conduct.

A.    The Respondent is not compelled to provide discovery responses.  Discovery responses were already provided on June 16, 2017, after the filing of this motion.

 

B.     The court orders discovery sanctions against Respondent in favor of Petitioner in the amount of $600.00 pursuant to CCP § 2023.010 and California Rule of Court, Rule 3.1348(a).

3.      SPR-89150,  Matter of Anna Darden Trust

            Petitioner’s motion to enforce the settlement agreement pursuant to CCP §664.6 is granted.

            Respondent Anna Grant Darden has failed to execute the promissory note and deed of trust required under the settlement agreement.  Even after this motion was filed on May 15, 2017, respondent continues to refuse to sign the documents “acceptable in form” to petitioner as required under the settlement agreement.  (Settlement Agreement, §§3 & 4, Ex. B to Cross Decl.) The fact that key aspects of the settlement agreement remain incomplete and mired in dispute belies respondent’s assertion that this motion was unnecessary.

            The court finds the disputed terms in the promissory note and deed of trust identified by respondent in her opposition are not unreasonable and the documents should therefore be executed by respondent forthwith.

            The court additionally finds petitioner is entitled to reasonable attorney fees in the amount of $3,500 as she is the prevailing party in this dispute.  (Settlement Agreement, §23.)  While some of the delay in satisfying the terms of the settlement agreement was due to matters beyond the parties’ control, respondent’s parallel and initially undisclosed refinancing of the San Francisco property caused significant delay, unnecessarily increased attorney fees incurred by petitioner and undermined cooperation between the parties.

            Respondent shall execute the promissory note and deed of trust, as well as pay the attorney fees within ten days of notice of entry of this order.  If respondent has not already done so, she shall also provide additional security in the amount of $476,500 for petitioner in the Anna Barodel Security Trust to remedy the reduction in security caused by her refinance.

            Petitioner shall submit an order consistent with this ruling.

 

© 2017 Superior Court of Sonoma County