In re the matter of The Silbernagel Trust CASE NO. 114PR172123
DATE: 15 May 2014 TIME: 9:00 LINE NUMBER: 13
This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 19 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. Any party opposing the tentative ruling must call Department 19 at 408.882.6856 and the opposing party no later than 4:00 PM Wednesday 14 May 2014. Please specify the issue to be contested when calling the Court and counsel.

On 15 May 2014, the motion of respondent Alan D. Silbernagel (“Respondent”), trustee of the Silbernagel Trust created on June 13, 2012 (“the Trust”), to quash the deposition subpoena issued to Barbara Robinson or, in the alternative, for a protective order, and for an award of monetary sanctions was argued and submitted.

Petitioner Bryant Nguyen (“Petitioner”) filed a formal opposition to the motion, in which he requests an award of monetary sanctions.

Statement of Facts

This case concerns the Trust estate of decedent Alvin C. Silbernagel (“Decedent”).

Beginning in or around 2000, Petitioner’s mother, Julie Muoi Em Dang (“Ms. Dang”), began a romantic relation with Decedent. After approximately one year of dating, Ms. Dang moved into Decedent’s home with her two young children, Petitioner and his sister.

Several years later, Ms. Dang allegedly became pregnant by a man other than Decedent and she and Decedent ended their relationship. Decedent and Ms. Dang moved out of the home. However, Ms. Dang did not take her children with her and Decedent allowed Petitioner and his sister to remain in the home. Decedent continued to financially support Petitioner and his sister and allegedly told them that he would pay for their college education. Petitioner claims that he and his sister lived with Decedent for approximately 3 years while attending college and working part-time jobs.

Decedent created the Trust on 13 June 2012, along with a pour-over will and other related documents. (See Silbernagel Dec., p. 1:23-24.) Decedent’s estate plan was drafted by attorney Barbara Robinson (“Ms. Robinson”) at the Law Offices of Affordable Living Trusts in Saratoga, California. (See Silbernagel Dec., p. 1:24-25; 2:1-2.)

In late 2012 and early 2013, Decedent became increasing ill and was moved to a skilled nursing facility. Petitioner was then served with 30-day and 60-day notices to move out of Decedent’s home. Decedent died on 30 March 2013.

Respondent is Decedent’s only biological child and alleges that Decedent named him as the successor trustee and sole beneficiary of the Trust. (See Silbernagel Dec., p. 2:1-2.)

On or about 17 May 2013, Respondent faxed a full copy of the Trust, the related will, the master transfer and assignment of assets to the Trust, and the assignment of sole proprietorship to Petitioner’s then attorney, Mary MacLellan, after Petitioner claimed that he was a beneficiary of the Trust. (See Silbernagel Dec., p. 2:19-22.) Respondent declares that the Trust, related will, and other documents do not mention Petitioner in connection with Decedent’s estate plan. (See Silbernagel Dec., p. 2:22-23.)

On 31 January 2014, Petitioner filed a petition to instruct trustee and compel accounting (“the Petition”). (See Request for Judicial Notice, Ex. 1.) In the Petition, Petitioner alleges that he is a beneficiary of the Trust and requests that the court enter an order instructing Respondent to provide him with copies of any and all estate planning instruments created by Decedent during his lifetime and an accounting of the Trust.

Respondent filed an objection to the Petition on 11 March 2014, alleging that Petitioner was not a beneficiary or interested person under the Probate Code and therefore was not entitled to the relief requested in the Petition. (See Request for Judicial Notice, Ex. 2.) Included in Respondent’s objection was a declaration from Ms. Robinson stating that she had been retained by Decedent to prepare the Trust and that her drafting notes reflected that Decedent directed that his entire estate be distributed to his only child, Respondent. (See Battel Dec., p. 2:3-7.)

Discovery Dispute

Petitioner issued a subpoena to Ms. Robinson at the Law Offices of Landis Mahaffey on 13 March 2014. (Battel Dec., Ex. A., p. 1.)The subpoena requested “[a]ll documents related to any estate planning for Alvin C. Silbernagel, including, but not limited to, any and all trusts, amendments to trusts, wills, codicils, durable powers of attorney, advanced healthcare directives, and any drafts of said documents,” and specified 10 April 2014 as the production date. (Id.)

Respondent’s counsel called Petitioner’s counsel regarding the subpoenas on 24 March 2014, and sent a follow-up letter on 31 March 2014. (Battel Dec., Ex. B.) Respondent’s counsel offered to obtain a further declaration from Ms. Robinson stating that Petitioner was not mentioned in the Trust or in any of the estate planning documents in Ms. Robinson’s client file. She further indicated that Petitioner was not entitled to the documents requested by the subpoena because he is not a beneficiary of the Trust. Respondent’s counsel requested that the subpoenas be withdrawn and advised that, absent the same, she would proceed with filing a motion to quash.

Petitioner’s counsel replied to the 31 March 2014 letter via email on 1 April 2014. (Battel Dec., Ex. C.) He stated that a further declaration from Ms. Robinson “would not satisfy the purpose of the subpoena.” (Id.) Petitioner’s counsel indicated that the subpoena sought more information than whether Petitioner was mentioned in the documents and encompassed documents that would “shed light on the intent of the settler [. . . ] [and] any number of germane facts, such as [Respondent’s] involvement in the drafting or execution of estate planning documents, issues of undue influence, alternate intent of the decedent, or evidence that the decedent lacked the necessary capacity to execute estate planning documents.” (Id.)

On 4 April 2014, Respondent filed the instant notice of motion to quash the subpoena issued to Ms. Robinson. Respondent then filed an amended notice of motion and supporting papers on 18 April 2014. On 5 May 2014, Petitioner filed opposition papers. Respondent filed a reply on 8 May 2014.

Discussion

I. Respondent’s Motion to Quash Subpoena

Respondent moves to quash the subpoena issued to Ms. Robinson in its entirety or, alternatively, for the Court to conduct an in camera review of the responsive documents and then either quash the subpoena or issue a protective order limiting disclosure of the responsive documents to Petitioner’s counsel of record, and not to Petitioner himself, to be used for the sole purpose of this litigation.

A. Request for Judicial Notice

Respondent requests that the Court take judicial notice of: (1) the Petition filed on 31 January 2014; and (2) Respondent’s objection to the Petition filed on 11 March 2014.

A court may take judicial notice of court records if they are relevant to a pending issue. (Evid. Code, § 452, subd. (d); People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2; Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301.)

The Petition and the objection are court records that outline the factual background of the case and the allegations at issue, and are therefore necessary to determine the relevancy of the discovery sought by the subpoena. Thus, Respondent’s request for judicial notice of these documents is GRANTED.

B. Evidentiary Objections

Petitioner objects to portions of the declarations of Respondent’s counsel, Nancy Battel, and Respondent submitted in support of the motion on the following grounds: lack of personal knowledge, assumes facts not in evidence, relevancy, speculation, improper legal conclusion, hearsay, lack of foundation, and best evidence. There is no authority, however, holding that the Court must rule on an evidentiary objection made in connection with a discovery motion. Therefore, the Court declines to rule on Petitioner’s evidentiary objections.

C. Legal Standard

The court may, “upon motion reasonably made by a [party] … make an order quashing [a] subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1, subds. (a) and (b)(1).) In addition, the court may make “any other order as may be appropriate to protect the [moving party] from unreasonable or oppressive demands.” (Id.)

D. Procedural Issues

1. Timeliness

As a threshold matter, Petitioner contends that Respondent’s motion is untimely because Respondent did not serve his supporting papers at the time he served the original notice of motion on 4 April 2014. Petitioner asserts that Respondent’s motion needed to be filed 5 days before 10 April 2014, the date set for production of documents responsive to the subpoena. Petitioner contends that since Code of Civil Procedure section 1010 requires service of the supporting papers with the notice of motion and Respondent did not serve his supporting papers until 17 April 2014, the motion is untimely.

First, Petitioner incorrectly states that “[a] motion to quash must be filed at least five days before the date set for production” under Code of Civil Procedure section 1985.3, subdivision (g). (See Opp’n., p. 6:25-27.) Code of Civil Procedure section 1985.3, subdivision (g) states that notice of a motion to quash must be given to the witness and the deposition officer at least 5 days prior to production. The statute does not require that the motion be filed 5 days prior to the date of production. In addition, the notice requirement is not jurisdictional and there is no legal authority supporting the proposition that a court lacks jurisdiction to consider a motion to quash if brought after the date set forth in the subpoena for production. (See Slagle v. Super. Ct. (Maryon) (1989) 211 Cal.App.3d 1309, 1312-1313.)

There is, in fact, no prescribed time requirement for filing a motion to quash pursuant to Code of Civil Procedure section 1987.1. The motion must merely be “reasonably made.” (Code Civ. Proc., § 1987.1, subd. (a).)

In the instant case, Respondent filed and served his notice of motion on 4 April 2014, six days prior to the date set for production of documents, 10 April 2014. At the time the original notice of motion was filed, Respondent did not file or serve any papers in support of the motion.

On 17 April 2014, Respondent served an amended notice of motion and supporting papers on Petitioner, and filed the same with the Court on 18 April 2014. The content of the amended notice of motion is virtually identical to that of the original notice of motion. The original notice of motion complied with Code of Civil Procedure section 1010 because it stated when the motion was to be heard, stated the grounds upon which the motion would be made, and listed the papers upon which it was to be based. (Code Civ. Proc., § 1010.)

Contrary to Petitioner’s assertion, Respondent was not required to file his supporting papers with the original notice of motion. Code of Civil Procedure section 1010 states that if any paper upon which the motion is based “has not previously been served upon the party to be notified and was not filed by him, a copy of such paper must accompany the notice.” (Code Civ. Proc., § 1010.) However, the statute also states that service of “[n]otices and other papers may be served upon the party or attorney in the manner prescribed in this chapter, when not otherwise provided by this code.” (See id. (emphasis added).)

The manner in which a party must serve supporting papers is provided by Code of Civil Procedure section 1005, subdivision (b). Code of Civil Procedure section 1005, subdivision (b) states that “all moving and supporting papers shall be served and filed at least sixteen court days before the hearing” on the matter. This notice period is extended by 5 calendar days if the documents are served by mail within California. (Code Civ. Proc., § 1005, subd. (b).)

Here, the hearing was initially set for 16 May 2014, and therefore Respondent needed to file his supporting papers by 24 April 2014, and serve the same by mail by 18 April 2014. Respondent met this deadline as he served the supporting papers on Petitioner on 17 April 2014, and filed the same with the Court on 18 April 2014. Moreover, Petitioner timely served a comprehensive opposition brief referencing the supporting papers, and does not establish that he would be prejudiced if the Court considered the merits of the motion.

Accordingly, taking into account the entirety of the circumstances, the Court finds that Respondent’s motion was reasonably made.

2. Separate Statement

Petitioner argues that Respondent’s motion should be denied because Respondent failed to include a separate statement. Conversely, Respondent argues that he was not required to file a separate statement because “no response has been provided to the request for discovery” and California Rules of Court, rule 3.1345(b) states that in such a situation no separate statement is needed.

Petitioner is correct that the instant motion requires the filing of a separate statement. (See Cal. Rules of Court, rule 3.1345(a)(5).) California Rules of Court, rule 3.1345(a)(5) clearly states that a motion to quash the production of documents or tangible things at a deposition requires a separate statement.

While the Court has discretion, it is not required to deny the motion for failure to provide a separate statement. (See Mills v. U.S. Bank (2008) 166 Cal.App.4th 871, 893.)

Here, even though Respondent failed to include a separate statement, he provided the subpoena for the Court’s review and his arguments are fully developed in his moving papers. Accordingly, the lack of a separate statement will not prevent the Court from addressing the merits of the motion, just as it has not prevented Petitioner from filing a substantive opposition. Thus, in deference to the principle that matters should be decided upon their merits, the Court will overlook Respondent’s failure to file a separate statement.

E. Meet and Confer

Petitioner asserts that Respondent failed to make any meaningful attempt to meet and confer prior to filing the motion. Petitioner’s argument is without merit because there is no requirement to meet and confer prior to filing a motion to quash pursuant to Code of Civil Procedure section 1987.1. (Compare Code Civ. Proc., § 1987.1 with Code Civ. Proc., §§ 2016.040 and 2025.420, subd. (a) [motion for protective order pursuant to Code Civ. Proc. section 2025.420 must be accompanied by a meet and confer declaration].)

Moreover, Respondent’s counsel spoke with Petitioner’s counsel on 24 March 2014, regarding the subpoena and sent a follow-up meet and confer letter on 31 March 2014. In the meet and confer letter, Plaintiff’s counsel offered to obtain a further declaration from Ms. Robinson to confirm that Petitioner was not included in any of the estate documents or file notes and requested that Petitioner withdraw the subpoena. Therefore, Petitioner’s argument concerning Respondent’s purported failure to adequately meet and confer lacks merit.

F. Analysis

1. Standing

In his motion, Respondent argues that the subpoena issued to Ms. Robinson should be quashed in its entirety because Petitioner “is not a beneficiary, heir, devisee, or trustee of the Trust” and thus does not have standing under Probate Code section 16060, et seq. to pursue the Petition or obtain a copy of the requested documents. (Mem. Ps & As., p. 5:13-16.)

Respondent asserts that under the Probate Code a trustee is only required to provide a copy of the terms of an irrevocable trust to a beneficiary or heir, and only a trustee or beneficiary of a trust may petition the court concerning the internal affairs of the trust. Respondent contends that since Petitioner is not entitled to a copy of the terms of the Trust under the Probate Code, it follows that he is not entitled to any and all documents related to estate planning performed for Decedent. Respondent does not cite any case law in support of his position.

Conversely, Petitioner persuasively argues that an alleged lack of standing is not a ground on which discovery may be denied. In trust litigation, as with most other types of actions, the scope of discovery is broad and is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The provisions of the Probate Code cited by Respondent do not in any way limit the scope of discovery, but rather address the fiduciary duties owed by a trustee and the rights of heirs and beneficiaries under the law. The issue of whether Petitioner has standing to bring the instant Petition is a matter properly addressed by the probate court, not on discovery motion.

Accordingly, Respondent’s argument with regard to standing is without merit.

2. Right to Privacy

Respondent argues that the subpoena violates Decedent’s right to privacy in his financial affairs. Respondent asserts that the estate planning documents contain information about the assets in the Trust.

Article I, Section 1 of the California Constitution protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics (USA), Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370, citing Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 40.) The right to privacy is not absolute. (See Vinson v. Super. Ct. (1987) 43 Cal.3d 833, 842.) Where a right to privacy is implicated, the party seeking discovery must show that the discovery sought is directly relevant—i.e. essential to resolve a matter in dispute—to the litigation. (See Britt v. Super. Ct. (1978) 20 Cal. 3d 844, 859-862 and 859.) Discovery will not be ordered if the information sought is available from less intrusive means. (See Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449.)

It is well established that there is a legally recognized privacy interest in a person’s financial affairs. (See Fortunato v. Super. Ct. (2003) 114 Cal.App.4th 475, 480, Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 656-657 [“Valley Bank”].) Petitioner does not contest this, but instead argues in his opposition that the right to privacy extinguishes at death and, thus, Decedent’s right to privacy in his financial affairs no longer exists.

Petitioner’s argument has merit as the right of privacy is “purely a personal one [. . .] [that] cannot be asserted by anyone other than the person whose rights have been invaded,” and “does not survive but dies with the person.” (Hendrickson v. Cal. Newspapers, (1975) 48 Cal.App.3d 59, 62; see Times-Mirror Co. v. Super. Ct. (1988) 198 Cal.App.3d 1420; Lugosi v. United Pictures (1979) 25 Cal.3d 813.)

Accordingly, Respondent’s argument with regard to privacy is without merit.

3. Overbroad and Irrelevant

Respondent argues that the subpoena issued to Ms. Robinson is overbroad and seeks documents that are irrelevant to the instant case.

Discovery is allowed for any matters that are not privileged, relevant to the subject matter involved in the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally with any doubt generally resolved in favor of discovery. (Colonial Life & Acc. Ins. Co. v. Super. Ct. (1982) 31 Cal.3d 785, 790.) Moreover, for discovery purposes, information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) Courts have held that under the Discovery Act, fishing expeditions are permissible, but only within reason. (See Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733, 739, fn. 4.)

As previously indicated, the subpoena issued to Ms. Robinson requests “[a]ll documents related to any estate planning for Alvin C. Silbernagel, including, but not limited to, any and all trusts, amendments to trusts, wills, codicils, durable powers of attorney, advanced healthcare directives, and any drafts of said documents.” (Battel Dec., Ex. A., p. 1.)

In his opposition, Petitioner asserts that the documents sought by the subpoena are relevant to the instant case because he alleges in the Petition that he is a beneficiary of the Trust. He contends that the “estate planning documents of decedent, as well as intake forms, notes, and any other information [. . .] could [. . .] demonstrate that [he] is a beneficiary of decedent’s trust” and “could also provide information demonstrating that, inter alia, decedent was unduly influenced in the creation of his estate plan, that the current estate plan does not actually represent the wishes of the decedent, or that decedent lacked the capacity to execute his estate plan.” (Opp’n., p. 4:4-11.)

Petitioner’s argument regarding relevancy is not well-taken. Here, the Petition alleges only that Petitioner is a beneficiary of the Trust, and requests copies of copies of all estate planning instruments created by Decedent during his lifetime and an accounting from Respondent. The Petition does not allege undue influence, alternate intent, or lack of capacity. Thus, these issues are entirely irrelevant to the instant case. It appears that Petitioner wants to conduct an unfettered fishing expedition through all documents in Ms. Robinson’s possession relating to the estate planning performed for Decedent to dredge up possible facts relative to possible claims that have yet to be pleaded. The Court notes that Respondent states that Petitioner is not a relative of Decedent, an heir, a devisee, or some other interested person. Thus, even if Petitioner alleged claims of undue influence, lack of legal capacity, or alternate intent, the relevance of the information sought by the subpoena would be highly questionable.

The fact that the subpoena seeks information about wholly irrelevant issues such as undue influence, alternate intent, and lack of capacity, indicates that the subpoena is vastly overbroad.

Moreover, Petitioner does not explain why he requires any and all documents relating to any estate planning performed for Decedent in order to determine whether he is a beneficiary of the Trust. Respondent declares that on 17 May 2013, he faxed “a full copy of the Trust including the related Will, Master Transfer & Assignment of Assignment of Assets to Trust, and Assignment of Sole Proprietorship” to Petitioner’s then attorney, Mary MacLellan. (Silbernagel Dec., p. 2:19-22.)

In fact, Petitioner attached a copy of the Trust to the Petition as Exhibit A. Thus, Petitioner has the dispositive documents that are necessary to establish whether he is a beneficiary under the Trust. Petitioner does not offer any facts to support his position that the numerous documents sought by the subpoena, other than the Trust, would lead to admissible evidence regarding his status as a beneficiary. Furthermore, Respondent states in his objection to the Petition that other than the documents faxed to Petitioner on 17 May 2013, he knows of the existence of no other estate planning documents. Thus, Petitioner has not demonstrated the relevancy of the documents sought.

Accordingly, the subpoena as drafted is overbroad and seeks irrelevant information.

G. Conclusion

In light of the foregoing, Respondent’s motion to quash the subpoena issued to Ms. Robinson is GRANTED.

II. Requests for Monetary Sanctions

A. Respondent’s Request for Sanctions

Respondent requests an award of monetary sanctions against Petitioner and/or his counsel in the amount of $3,690.00 under Code of Civil Procedure sections 128.5, subdivision (a) and 1987.2, subdivision (a).

First, Code of Civil Procedure section 128.5 only authorizes an award of sanctions in actions initiated on or before 31 December 1994. (Code Civ. Proc., § 128.5, subds. (a) and (b)(1); see also Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809). Given that this case was initiated after 31 December 1994, Code of Civil Procedure section 128.5 does not apply to this action.

Second, Code of Civil Procedure section 1987.2 states that in making an order pursuant to Code of Civil Procedure section 1987.1, the court “may in its discretion award the amount of the reasonable expenses incurred in making or opposing the motion, including reasonable attorney’s fees,” if it finds that the motion was “made or opposed in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.” (Code Civ. Proc., § 1987.2, subd. (a).)

Here, Respondent’s motion was successful, and Petitioner did not act with substantial justification. Consequently, an award of sanctions is appropriate.

Respondent’s counsel declares that her hourly rate is $400.00 and she spent 7 hours researching and preparing the instant motion. She anticipates spending 1 hour preparing reply papers and 1 hour appearing at the hearing. The Court does not award sanctions for expenses not yet incurred. (See Cal. Code Civ. Proc. § 2023.030, subd. (a); Tucker v. Pacific Bell Mobile Services (2010) 186 Cal.App.4th 1548, 1551.) Consequently, the anticipated attorney fees are not compensable. Respondent’s counsel also seeks to recoup the $60.00 filing fee and the $30.00 court reporter fee for the hearing. The $60.00 filing fee and the $30.00 court reporter fee constitute reasonable expenses. The Court also finds the hourly rate to be reasonable, though the time spent is a bit excessive. The Court finds that 4 hours is reasonable amount of time to have spent preparing the instant motion.

Accordingly, Respondent’s request for sanctions is GRANTED IN PART in the amount of $1,690.00.

B. Petitioner’s Request for Sanctions

Petitioner requests sanctions against Respondent and/or Respondent’s counsel in the amount of $3,780.00 under Code of Civil Procedure sections 1987.2, subdivision (a) and 2030.090, subdivision (d).

First, Code of Civil Procedure section 2030.090, subdivision (d) is inapplicable in the instant case because it addresses sanctions in connection with a motion for protective order made under that section, and here, Respondent moved to quash the subpoena under Code of Civil Procedure section 1987.1.

Second, with regard to his request for sanctions under Code of Civil Procedure section 1987.2, subdivision (a), Petitioner was unsuccessful in his opposition to the motion and, thus, is not entitled to an award of sanctions.

Accordingly, Petitioner’s request for sanctions is DENIED.

Conclusion and Order

Respondent’s motion to quash the subpoena issued to Ms. Robinson is GRANTED.

Respondent’s request for sanctions is GRANTED IN PART in the amount of $1,690.00. Accordingly, within 20 calendar days of the date of the filing of this Order, Petitioner and/or Petitioner’s counsel shall pay $1,690.00 to Respondent’s counsel.

Petitioner’s request for sanctions is DENIED.