6, 2017, seeking an order (1) removing Respondent as trustee and appointing a professional fiduciary; (2) granting relief for breach of trust and fiduciary duty; (3) compelling an account; and (4) interpreting Petitioner’s distribution rights in the Trust.

On November 17, 2017, Petitioner propounded a request for production of documents on Respondent. On December 18, 2017, Respondent served responses to Petitioner’s discovery requests, along with responsive documents. Petitioner now brings a timely motion to compel further responses to the request for production of documents2.

1 Relevant to this motion, these parcels include: (1) 4455 E. Highway 41, Templeton, CA 93465 (“Highway 41”); (2) 6550 W. 86th Place, Los Angeles, CA, 90045 (“the 86th Place Property”); (3) 2133 St. Bernard Drive, Pine Mountain Club, CA (“St. Bernard Drive”); (4) 2528 Cedarwood Drive, Pine Mountain Club, CA (“Cedarwood”); and (5) Loyola Automotive, located at 8314 Lincoln Boulevard, Los Angeles, CA 90045.

2 The Court acknowledges Petitioner’s inclusion of a separate statement, as is required. (Cal. Rules of Court, rule 3.1345.) Although Petitioner claims that Respondent’s failure to file her own separate statement is grounds for granting the motion, the Court is unable to locate any support for this statement. (Contra, Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893 [court “well within its discretion to deny” a party’s motion to compel based on moving party’s failure to file separate statement].)
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The Trust and Subject Properties.

Petitioner alleges that upon Jerry McKibben’s death, the net income from the 86th Place Property and Cedarwood, as well as the Loyola Automotive business, were to be distributed to him per the Trust language excerpted below:

7.3.2 Specific Gifts. We make the following specific gifts:

7.3.2.1 The business commonly known as LOYOLA AUTOMOTIVE and all the assets and fixtures associated with such business, along with the real property located at 8314 Lincoln Blvd., Los Angeles, CA 90045, or the proceeds of the sale of said business and real property to KEITH ROSS MCKIBBEN.

7.3.2.2 If JERRY W. MCKIBBEN is the first spouse to die, then the net income from 6458 and 6550 W. 86th Place, Los Angeles, CA 90045, and 2528 Cedarwood, Pine Mountain Club, CA 93222 to KEITH ROSS MCKIBBEN. (See Amended Petition, Ex. A, ¶ 7.3.2.2, emphasis in original.)

On February 19, 2016, Petitioner requested an accounting from Respondent upon the sale of the 86th Place Property, claiming the income from this property was to be distributed to Petitioner. No accounting was provided, but Respondent provided a closing statement. The property was sold for $512,000.

Authority.

Except as otherwise provided in the Probate Code, the general rules of civil procedure govern discovery and other pretrial matters in will contests. (See Prob. Code, § 1000; Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987, [“there is no question but that the discovery procedures found in the Code of Civil Procedure are available for use in probate proceedings”]; Mota v. Sup.Ct. (2007) 156 CA4th 351, 355; Ross and Cohen, Cal. Prac. Guide: Probate (The Rutter Group 2017) Ch. 15-E, § 15:227.)

A party may obtain discovery regarding any non-privileged matter relevant to the subject matter “if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence…”. (Code Civ. Proc., § 2017.010.) Discoverable information includes any information that reasonably might lead to other evidence that would be admissible at trial. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) Ch. 8C-2, § 8.67.)

Petitioner’s Motion.

In the course of the meet and confer process, Respondent’s counsel raised objections based on Respondent’s right to privacy. These objections were not asserted in the original responses. Failure to assert an objection in discovery responses is generally a waiver of the objection. (Code
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Civ. Proc., § 2031.300(a); Scottsdale Ins. Co. v. Sup. Ct. (1997) 59 Cal.App.4th 263, 273 [waiver rule applies both where there is a complete failure to respond to discovery as well as where the objection is not raised in the original response].) However, one’s right to privacy is a constitutional right, and there is arguably no waiver of the right to privacy by failure to assert it in an initial response. (See Boler v. Sup. Ct. (1987) 201 Cal.App.3d 467, 472 [discussing privacy rights of third parties); Heda v. Sup. Ct. (1992) 225 Cal.App.3d 525, 529.) The Court is not inclined to order Respondent to turn over responsive private documents based on her attorney’s failure to include a privacy objection in the original responses.

Respondent specifically claims that certain requests seek her confidential financial documents. A right of privacy exists as to a party’s confidential financial affairs, even when the information sought is admittedly relevant to the litigation. (Cobb v. Sup.Ct. (1979) 99 Cal.App.3d 543, 550; see also Fortunato v. Sup. Ct. (2003) 114 Cal.App.4th 475, 480 [protection for tax returns submitted to bank in connection with loan application; “there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information.”].) The party seeking discovery must show a particularized need for the confidential information sought. The broad “relevancy to the subject matter” standard is not enough; the Court must be convinced that the information is directly relevant to a cause of action or defense and is essential to determining the truth of the matters in dispute. (Britt v. Sup. Ct. (1978) 20 Cal.3d 844, 859-862.) Discovery will not be ordered if the information sought is available from other sources or through less intrusive means. (Allen v. Sup. Ct. (1984) 151 Cal.App.3d 447, 449; see also Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) Ch. 8C-5, § 8:303 et seq.)

Petitioner also highlights discovery responses to which Respondent has not provided all responsive documents, despite responding that she would do so. Respondent’s position to these requests as outlined in the opposition is unclear. For certain requests, Respondent claims that all responsive documents have been produced (meaning the motion to compel would be moot), that the “objections are warranted” (meaning Respondent will not produce documents and stand on her objections), and will also assert new objections (i.e. privacy) for the first time in the opposition. Thus, although Respondent’s position is at times unclear, the Court rules as follows3:

Request Nos. 1, 2, and 17: Denied. These requests seek all financial documents relating to Loyola Automotive and all documents relating to any income Respondent received on behalf of Loyola Automotive. Although Petitioner claims he received the Loyola Automotive business after Jerry McKibben died, Respondent disputes this and the Trust’s language is unclear4. For example, paragraph 7.2 of the Trust states that “[u]pon the surviving spouse’s death, the Trustee(s) shall distribute the assets of the Family Share in accordance with this Article.” In
3 Unless otherwise indicated, the relevant time period for all requests is January 1, 2014 through the present.

4 Neither Party has requested, nor is the Court inclined to make, a determination as to whether Petitioner is a current beneficiary or contingent/remainder beneficiary under the Trust. The Court has reviewed the Trust, as set forth in more detail elsewhere, and reaches this ruling based on that review and the plain language outlined in the Trust.
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other words, the distributions outlined in paragraph 7 will not be distributed until both Settlors are deceased. While paragraph 7.3.2.2 indicates that Petitioner will receive net income from the 86th Place Property and Cedarwood “if Jerry McKibben is the first to die,” there is no such provision in 7.3.2.1 governing the distribution of Loyola Automotive. (Amended Petition, Ex. A, ¶ 7.3.2, emphasis added.) Based on the plain language of the Trust, Petitioner will not receive Loyola Automotive until both Settlors are deceased. Thus, Petitioner is not entitled to documents responsive to these requests, given that they seek Respondent’s private financial information.

Request Nos. 8 and 9: Denied. These requests seek all financial documents and all income relating to Highway 41. Highway 41 is part of the Marital Share and there is no evidence this property transferred to Petitioner upon Jerry McKibben’s death. The request thus seeks Respondent’s confidential financial information.

Request Nos. 4 and 6: Granted. This request seeks all financial documents, including those relating to the sale, of the 86th Place Property. The inclusion of paragraph 7.3.2.2 in the Trust evidences the Settlors’ intent that if Jerry McKibben predeceased his wife, Petitioner would receive the net income from the 86th Place Property. Thus, Petitioner is entitled to receive documents responsive to these requests. Although Petitioner acknowledges receiving certain responsive documents, he outlines other responsive documents he has yet to receive (see Separate Statement, p. p. 11, ll. 9-15; 12, ll. 7-11.). To the extent Respondent has already produced all responsive documents, she should simply so state.

Request No. 11: Granted. This request seeks all financial documents related to Cedarwood. For the reasons outlined above regarding requests 4 and 6, Petitioner is entitled to receive documents responsive to this request. Although Petitioner acknowledges receiving certain responsive documents, he outlines other responsive documents he has yet to receive (see Separate Statement, p. 3, ll. 15-18). To the extent Respondent has already produced all responsive documents, she should simply so state.

Request No. 14: Denied. This request seeks all financial documents related to St. Bernard Drive. Unlike the 86th Place Property and Cedarwood, there is no evidence before the Court indicating Petitioner was to receive any income from this property upon the death of Jerry McKibben. Petitioner is thus not entitled to these documents inasmuch as they contain Respondent’s private financial information.

Request No. 20: Denied. This request seeks all periodic statements from financial institution accounts held in the Trust’s name. The request is overbroad and seeks Respondent’s confidential financial information.

Request No. 21: Denied. This request seeks all documents related to any promissory notes naming the Trust as payor or payee. The request is overbroad and seeks Respondent’s confidential financial information.

Request No. 22: Denied. This request seeks all documents relating to any investment accounts naming the Trust as a contingent, secondary, or alternate beneficiary, including but not limited to
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retirement accounts, investment accounts, pension plans, and securities. The request is overbroad and seeks Respondent’s confidential financial information.

Request No. 23: Denied. This request seeks all documents related to any transactions between Respondent as the trustee and any third parties, including partnership agreements and consulting agreements. The request is overbroad and seeks Respondent’s confidential financial information.

Request No. 25: Denied. This request seeks all tax returns filed on behalf of the Trust. The request is overbroad and seeks Respondent’s confidential financial information.

Petitioner is ordered to produce additional documents responsive to request for production numbers 4, 6, and 11, within 20 days of this ruling. The Court denies Petitioner’s motion to compel further responses to request numbers 1, 2, 8, 9, 14, 17, 20, 21, 22, 23, and 25, without prejudice. If during the course of discovery Petitioner uncovers additional information warranting disclosure of the requested documents, he may move the Court to compel further production, or preferably, request an informal discovery conference.