May 29, 2020

TENTATIVE RULINGS – FAMILY LAW Dept. 22 LAW & MOTION CALENDAR

HON. JAMES G. BERTOLI
MARCH 13, 2020 @ 9:30 a.m. in DEPT. 22

(Civil & Family Courthouse, 3055 Cleveland Avenue, Santa Rosa CA 95403)

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, it will be necessary for you to contact the Judicial Assistant by telephone at (707) 521-6732 by 4:00 p.m. on Thursday, March 12, 2020. Any party requesting an appearance must notify all other opposing parties of their intent to appear.  

 

 

LAW & MOTION TENTATIVE RULINGS

DEPARTMENT 22

JUDGE JAMES G. BERTOLI

March 13, 2020 at 9:30 a.m.

 

1. SFL077096 IRMO CAMILLERI 

Appearance required.

2. SFL080168 IRMO STAHL

Appearance required.

3. SFL081526 MURPHY V. HENDERSON

Petitioner’s motion to compel discovery responses and sanctions is DENIED.

In this dissolution action, Respondent has made separate property claims. Consequently, Petitioner’s request for production is focused on obtaining supporting documentation to trace those claims. 

Respondent served his responses to Petitioner’s request for production on June 17, 2019. He also sent a detailed letter regarding the basis for his separate property claims to Petitioner on July 26, 2019. 

Petitioner responded with a brief meet and confer letter dated August 5, 2019 in which she listed document categories she claimed were missing from the production. 

Respondent responded on August 19, 2019 by detailed letter directly addressing the claimed missing documents and why he had no more documents to produce. For instance, he explained that the reason he did not provide bank statements for some accounts from 2012 and beyond was because those accounts were not in existence at that time. 

On August 27, 2019, without further meet and confer attempts, Petitioner filed this motion to compel further responses. Notably, Petitioner’s motion was filed a day later than stipulated to by the parties. Additionally, no separate statement accompanies Petitioner’s motion. A separate statement is required to be filed by California Rules of Court, Rule 3.1345(a)(3). It appears Petitioner at least served a separate statement on Respondent since he filed a “responding” separate statement, but no separate statement was filed with the moving papers. This is a ground for denying Petitioner’s motion. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 & The Rutter Group, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-7, §8:1151.1.)

Current Status of Document Production

Missing Documents:

Based on Petitioner’s reply brief, it appears the only documents she contends are still “missing” are the following:

1. Ten pages from 2018/2019 bank statements for Wells Fargo checking accounts #9732 & #9240;
2. PayPal account documents; and
3. All loan information for First Street, Glen Ellen, CA.

Per Respondent, the ten missing pages from the bank statements were due to an inadvertent copying error. He has since provided those missing pages to Petitioner. As argued by Respondent, a motion to compel was not necessary to recover these pages. Petitioner only pointed out these missing pages in her reply brief. She has not shown she made any attempt to otherwise obtain them that went ignored by Respondent. There is simply no evidence of bad faith on Respondent’s behalf. A simple phone call could have resolved this issue.

Respondent already provided the PayPal account documents in his original response to the document request. According to Respondent, there are no more documents to produce. He provided a letter from a PayPal representative which supports the conclusion that there are no other documents to produce. Petitioner fails to articulate specifically why this is insufficient and what more she expects Respondent to have produced under the circumstances.

From Respondent’s separate statement, it appears the First Street property in Glen Ellen is real property purchased by Respondent post-separation. He asserts that Petitioner never raised the need for these documents in her meet and confer letter but that he has since produced them to her, including copies of the documents that are also in Petitioner’s possession. Again, there is no reason to conclude that further meeting and conferring could not have resolved this issue without a motion to compel and court intervention.

Retirement Plan Statements:

Petitioner additionally takes issue with Respondents’s failure to produce all his pension documents from the San Francisco Employees Retirement System (“SFERS”) going back to 2012. Respondent claims a separate property interest in this retirement plan and he produced statements for July 1, 2017 – July 30, 2018.  However, as explained in his meet and confer letter, he did not retain all the paper statements over the years and SFERS itself has switched back and forth between paper and electronic statements during the relevant time period. Respondent concedes the relevance of these documents, and he met with SFERS in an attempt to obtain them, but SFERS did not provide him with the missing statements. Therefore, Respondent asserts that all the documents in his possession, custody and control have been produced and the others will have to be subpoenaed from SFERS if the parties’ tax returns fail to provide the necessary information. 

In response, Petitioner argues an issue/evidence sanction should be imposed on Respondent precluding him from seeking a separate property interest in the SFERS retirement plan.  The court declines to impose such non-monetary sanctions as only monetary sanctions were sought in the moving papers and Respondent has not disobeyed a court order compelling a further response. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1428, “Sections 2031.310, subdivision (e) and 2031.320, subdivision (c) authorize an evidence or issue sanction only if a party fails to obey an order compelling a further response or an order compelling an inspection.”)

Life Insurance Policies:

Finally, Petitioner refers in passing in her reply points and authorities to 2019 statements for Respondent’s life insurance policies. To the extent that Petitioner contends further production is necessary, she has failed to provide any basis for doing so. As explained by Respondent in his meet and confer letter, only annual statements are issued for those policies and he has produced them already. 

Based on the foregoing, the court finds this motion was not necessary to obtain Respondent’s compliance and there is no basis to compel further responses or production of documents from him. Additionally, as explained below, the court finds Respondent is entitled to an award of monetary sanctions due to Petitioner’s misuse of the discovery process by failing to meet and confer in good faith.

Meet and Confer 

As stated in Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293:

“The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’ [Citations.] This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order....’ [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]” [Citation.]

And, as the Clement Court went on to opine regarding how to evaluate of the seriousness of meet and confer attempts:

“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 (see, e.g., Townsend, supra, 61 Cal.App.4th at p. 1438, 72 Cal.Rptr.2d 333 [no exception based on speculation that prospects for informal resolution may be bleak] ), 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.]

(Clement v. Alegre, supra, 177 Cal.App.4th 1277, 1293-1294.)

CCP §2016.040 provides that, “[a] meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.”

Here, the court finds Petitioner failed to demonstrate that she made a reasonable and good faith effort to informally resolve the outstanding issues before filing this motion. Specifically, Petitioner sent just one brief meet and confer letter. This opening salvo drew a comprehensive and detailed response from Respondent, which clearly explained why additional documents were not available for production. However, Petitioner appears to have made no effort to digest Respondent’s explanations; to re-consider what if anything truly remained outstanding; or to informally resolve any production issues before filing this motion. There is no reason to conclude that informal resolution would not have been successful here had Petitioner decided to further engage in the meet and confer process.

Consequently, the court awards Respondent $5,250.00 in sanctions for prevailing in opposing this motion and for Petitioner’s misuse of the discovery process. (CCP §§ 2031.310, 2023.010(i) and 2023.020.) This sum is based on 15 hours x $350/hr, which the court finds to be reasonable expenses incurred in opposing to this motion. Sanctions are to be paid within 30 days of notice of entry of this order.

Respondent seeks evidence, issue and terminating sanctions as well. However, as explained above, the court declines to order anything but monetary sanctions since no court orders have been disobeyed. The court also declines to rule on Respondent’s requests for relief beyond that framed by the moving papers. 

Respondent is to prepare an order consistent with the above ruling.


4. SFL081526 MURPHY V. HENDERSON

Appearance required as to trailing Request for Order Re: Child & Spousal Support.

5. SFL38375 IRMO MICHELS

The Court has previously ruled in the moving party’s favor on this motion. As she was directed by the Court Clerk’s office, she needs to resubmit her deed for the Court Clerk’s signature. A new motion is not necessary and the motion is therefore denied as moot.

 

 

  

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