Jianbo Gao v. Wilbert Lee, et al. CASE NO. 113CV251403
DATE: 6 June 2014 TIME: 9:00 LINE NUMBER: 21
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 Thursday 5 June 2014. Please specify the issue to be contested when calling the Court and counsel.

On 6 June 2014, the motion of defendant Wilbert Lee, as executor, administrator, and/or trustee of the Estate of Joanne Asato, to quash the deposition subpoena issued to his counsel, Christopher Schumb, and for an award of monetary sanctions, was argued and submitted. Plaintiff Jianbo Gao, as guardian ad litem for Y.G., a minor, filed a formal opposition to the motion.

The motion of plaintiff Jianbo Gao, as guardian ad litem for Y.G., a minor, to compel further responses to special interrogatories, set one and requests for production of documents, set one, and for an award of monetary sanctions, was also argued and submitted. Defendant Wilbert Lee, as executor, administrator, and/or trustee of the Estate of Joanne Asato filed a formal opposition to the motion, in which he requests monetary sanctions.

All parties are reminded that all papers must comply with California Rules of Court, rule 3.1110(f).

Statement of Facts

This action arises out of the alleged emotional and sexual abuse of a minor, named in these proceedings as Y.G., by his teacher, Joanne Asato (“Decedent”), while he was attending middle school in the Sunnyvale School District. While Y.G. was under 14 years of age, Decedent allegedly sexually molested him on multiple occasions and threatened that if he ever told anyone about the abuse, she would kill herself.

On or about 4 June 2012, Y.G. told school counselors and law enforcement officers about the sexual abuse perpetrated by Decedent. Decedent was interviewed by law enforcement officers on 6 June 2012, and purportedly confessed to sexually abusing Y.G. Later that same day, Decedent committed suicide.

Plaintiff Jianbo Gao (“Plaintiff”), as guardian ad litem for Y.G., alleges that on or about 26 December 2012, he made a written claim of liability to defendant Wilbert Lee (“Defendant”), as executor, administrator and/or trustee of the Estate of Joanne Asato.

On 3 January 2013, Plaintiff received a written response from Defendant’s counsel, Christopher Schumb (“Mr. Schumb”), who indicated that he was tendering the claim to Defendant’s insurance carrier and requested various documents relating to the molestations. Mr. Schumb also suggested that the parties engage in mediation.

On 29 March 2013, Mr. Schumb proposed mediation with Craig Needham (“Mr. Needham”) on 17 June 2013, 18 June 2013, or 20 June 2013. Plaintiff alleges that Mr. Schumb refused to conduct the mediation prior to 1 June 2013, and asserted that he was unavailable during the month of May 2013 due to numerous engagements. On 12 April 2013, the parties agreed to schedule the mediation with Mr. Needham for 17 June 2013.

Mr. Schumb then sent a letter to Plaintiff’s counsel on 24 April 2013, advising that a June 2013 mediation date would not work, but Defendant was willing to mediate the case any time during May 2013, including Saturdays and Sundays. Mr. Schumb also indicated that Defendant was willing to use another mediator if Mr. Needham was not available on a weekend.

Plaintiff’s counsel responded to Mr. Schumb’s letter the following day, informing Mr. Schumb that he was currently in trial and would be in trial throughout the month of May 2013. Plaintiff’s counsel indicated that while he preferred to proceed with the originally agreed upon date of 17 June 2013, he would agree to another mediation date so long as Y.G. did not have to miss school. Plaintiff asserts that Defendant then did nothing further to schedule the mediation, and Mr. Schumb advised Plaintiff’s counsel that he was in New York and therefore unavailable from 30 May 2013 through early June 2013.

On 1 May 2013, Plaintiff’s counsel contacted Mr. Schumb and requested that he provide a list of mediation dates on which he was available, if it was impossible for Defendant to attend the 17 June 2013 mediation. Plaintiff alleges that Defendant thereafter refused to attend the 17 June 2013 mediation and did not explain why he would not attend. On 15 May 2013, Mr. Schumb notified Plaintiff’s counsel that Defendant would no longer engage in mediation.

Plaintiff filed the operative first amended complaint (“FAC”) against Defendant on 21 October 2013, alleging the following causes of action: (1) child sexual abuse; (2) negligence; (3) assault and sexual battery; and (4) intentional infliction of emotional distress.

In the FAC, Plaintiff alleges that the statute of limitations is tolled under by Probate Code Section 19253, subdivision (b), because on or about 26 December 2012, he made a written claim of liability to Defendant and Defendant did not give notice of allowance or rejection of the claim. Plaintiff also claims that equitable estoppel precludes the application of the statute of limitations because Defendant, through Mr. Schumb, made representations regarding the scheduling of mediation which induced Plaintiff not to file a claim.

Discovery Dispute

I. Defendant’s Motion to Quash the Deposition Subpoena Issued to Mr. Schumb

On 21 February 2014, Plaintiff served Defendant with a notice of deposition indicating that the deposition of Mr. Schumb was set for 8 April 2014. (Scruggs Opp’n Dec., Ex. B, p. 1-2.) On 25 February 2014, Plaintiff served Defendant via fax with a deposition subpoena for the personal appearance of Mr. Schumb at deposition on 8 April 2014. (Scruggs Opp’n Dec., Ex. B, p. 3-5.)

On 6 March 2014, Defendant’s counsel, Miriam Behman Brody (“Ms. Brody”), sent Plaintiff’s counsel a meet and confer letter regarding the deposition subpoena issued to Mr. Schumb. (Brody Dec., Ex. A, p. 1.) Ms. Brody advised that Defendant objected to the deposition subpoena as depositions of opposing counsel are presumptively improper. (Id.) She further asserted that Mr. Schumb “was not present during any of the events on or before June 2012 relative to Plaintiff’s substantive tort claims” and his “testimony [would] provide zero evidence to either support or negate Plaintiff’s substantive claims.” (Brody Dec., Ex. A, p. 2.)

Ms. Brody further stated that the “only issue on which Mr. Schumb may provide potentially relevant testimony relates to Plaintiff’s assertion of an equitable estoppel argument in response to Defendant’s statute of limitations defense.” (Id.) Ms. Brody asserted that “the vast majority of such information is equally available and known by Plaintiff’s counsel, and is otherwise available through other means of discovery, such as a request for production of documents and/or written interrogatories.” (Id.) In light of the alternative means of discovery available, Ms. Brody requested that Plaintiff withdraw the deposition subpoena and instead “issue alternative discovery.” (Id.)

Plaintiff’s counsel replied on 14 March 2014, and indicated that he would not withdraw the deposition subpoena unless Defendant agreed to withdraw his statute of limitations defense. (Brody Dec., Ex. B, p. 1-2.) Plaintiff’s counsel asserted that there were “a multitude of factual issues about which only Mr. Schumb [could] testify.” (Brody Dec., Ex. B, p. 1.) Plaintiff’s counsel contended that “Mr. Schumb’s non-privileged conversations with persons other than his co-counsel and client [were] relevant to whether [Defendant] treated Plaintiff’s pre-litigation ‘claim’ as precisely that, as well as whether Mr. Schumb’s actions create equitable estoppel on the part of [Defendant].” (Id.)

Plaintiff’s counsel and Ms. Brody continued their meet and confer efforts regarding the deposition of Mr. Schumb on 24 March 2014 and 25 March 2014, but no resolution was reached. (Brody Dec., Ex. C, D.)

On 1 April 2014, Defendant filed the instant motion to quash the deposition subpoena issued by Plaintiff to Mr. Schumb, and for an award of monetary sanctions. Defendant filed an amended notice of motion and motion to quash the deposition subpoena on 2 April 2014. The amended papers filed on 2 April 2014, are virtually identical to the moving papers filed on 1 April 2014. On 15 May 2014, Plaintiff filed papers in opposition of the motion. Defendant filed reply papers on 30 May 2014.

II. Plaintiff’s Motion to Compel Further Responses to the SI and RPD

On 9 January 2014, Plaintiff served Defendant with special interrogatories, set one (“SI”) and requests for production of documents, set one (“RPD”). (Scruggs Dec., Exs. A, C.)

In relevant part, SI Nos. 1-6 asked Defendant to identify: all beneficiaries of Decedent’s estate and the Wilbert Lee and Joanne C. Asato Revocable Living Trust dated 26 June 1999 (the “Trust”); all assets received by any beneficiary of Decedent’s estate or the Trust; and all assets contained in the Decedent’s estate and the Trust at the time of her death. (Scruggs Dec., Ex. A.)

RPD Nos. 20-22 and 25 asked Defendant to produce all documents that constituted the Trust, Schedule A of the Trust, an accounting of the Trust, and/or any will or codicils to the “Will of Joanne Asato,” which were in effect on the date of Decedent’s death. RPD Nos. 23 asked Defendant to produce all documents that described any disbursements or transfers of assets from the Trust made since the date of Decedent’s death. (Scruggs Dec., Ex. C.)

On the same day that Plaintiff served the SI and RPD, Plaintiff’s counsel sent a letter to Defendant’s counsel, apparently at Defendant’s counsel’s request, providing legal authority regarding the discoverability of financial information relating to Defendant and Decedent’s estate. (Scruggs Dec., Ex. E.) Plaintiff’s counsel asserted that under the case of Valentine v. Read (1996) 50 Cal.App.4th 787, Plaintiff is “entitled to discover the assets of decedent’s estate,” “any distributions from that estate,” “the trust documents,” “the identities of all such beneficiaries, and the amount they received” to determine “whether trust assets are sufficient to satisfy [Plaintiff’s] claim, or if not, the extent of each beneficiaries potential liability under the Probate Code.” (Id.)

On 13 February 2014, Defendant served Plaintiff with his responses to the SI and RPD. (Scruggs Dec., Exs. B, D.) On the same day, Defendant’s counsel sent a reply to Plaintiff’s counsel’s 9 January 2014 letter. Defendant’s counsel asserted that the case of Valentine v. Read is inapposite and the financial and estate planning information sought is protected by Defendant’s constitutional right to privacy.

The parties continued to meet and confer regarding the discoverability of financial information relating to Defendant and Decedent’s estate on 20 February 2014, 21 February 2014, 11 March 2014, and 17 March 2014, but no resolution was reached. (Scruggs Dec., Exs. G, H, I, and J.)

On 4 April 2014, Plaintiff filed the instant motion to compel Defendant to provide further responses to SI Nos. 1-6 and RPD Nos. 20-23 and 25, and for an award of monetary sanctions. Defendant filed papers in opposition to the motion on 23 May 2014, in which he requests monetary sanctions. Plaintiff filed a reply on 29 May 2014.

Discussion

I. Defendant’s Motion to Quash the Deposition Subpoena Issued to Mr. Schumb

Defendant moves to quash the deposition subpoena issued to Mr. Schumb in its entirety, arguing that the information sought is equally available to Defendant and can be obtained through alternative means of discovery.

A. Legal Standard

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

B. Analysis

Opposing counsel may be deposed if they have knowledge of relevant facts. (Carehouse Convalescent Hosp. v. Super. Ct. (2006) 143 Cal.App.4th 1558, 1562.) However, such depositions are “presumptively improper, severely restricted, and require ‘extremely’ good cause – a high standard.” (Id. at p. 1562, citing Spectra-Physics, Inc. v. Super. Ct. (1988) 198 Cal.App.3d 1487, 1493.)

The following factors determine whether deposition of an opposing counsel is allowable: (1) whether the party seeking the deposition has other practical means to obtain the information sought; (2) whether the information sought is relevant and non-privileged; and (3) whether the information sought is crucial to preparation of the case. (Spectra-Physics v. Super. Ct., supra, 198 Cal.App.3d at p. 1496; Carehouse Convalescent Hosp. v. Super. Ct., supra, 143 Cal.App.4th at p. 1563.)

“Each of these prongs poses an independent hurdle to deposing an adversary’s counsel; any one of them may be sufficient to defeat the attempted attorney deposition.” (Spectra-Physics v. Super. Ct., supra, 198 Cal.App.3d at p. 1494-1495.) The party seeking the deposition has the burden of proving the first and third factors. (Carehouse Convalescent Hosp. v. Super. Ct., supra, 143 Cal.App.4th at p. 1563-1564.) The burden of proving the second factor is on the party seeking the deposition with respect to relevance, and on the party opposing the deposition with respect to claims of privilege. (Carehouse Convalescent Hosp. v. Super. Ct., supra, 143 Cal.App.4th at p. 1563-1564.)

Here, Plaintiff acknowledges that depositions of opposing counsel are generally disfavored, but states that the information sought through Mr. Schumb’s deposition is not available through any other means, is crucial to the preparation of this case, and is not protected by the attorney-client privilege. (See Opp’n., p. 6-8.)

1. Whether Plaintiff has Other Practical Means to Obtain the Information Sought

With regard to first prong, as the party seeking the deposition, Plaintiff has the burden of establishing that no other means exist to obtain the information sought other than to depose Mr. Schumb. (See Spectra-Physics v. Super. Ct., supra, 198 Cal.App.3d at p. 1494; see also Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1601 [rejecting an attempt to depose opposing attorney when “common discovery devices” such as interrogatories were readily available and could have been utilized to elicit the facts sought by the proposed deposition].)

First, Plaintiff contends that Mr. Schumb’s deposition “is the only way to get information” about whether Defendant made non-privileged admissions that Plaintiff made a claim of liability because “there are certain non-privileged communications attorney Schumb had with third parties which are highly relevant and were not memorialized in writing.” (Opp’n., p. 6:26-28.) To support this contention, Plaintiff points out that Mr. Schumb stated in his first written communication to Plaintiff’s counsel that he was tendering the claim to Defendant’s insurance carrier. (Scruggs Opp’n. Dec., p. 7:1-9, Ex. O.) Plaintiff argues that “[a] cross-examination of the facts and circumstances” that surrounded Mr. Schumb’s “‘tendering of the claim’ would suggest non-privileged admissions by Defendant that indeed a claim had been made.” (Opp’n., p. 7:6-9.)

Plaintiff’s argument with regard to possible admissions made by Defendant pertaining to the tendering of Plaintiff’s claim is without merit. The written communication cited by Plaintiff, in which Mr. Schumb states that he is tendering the claim, does not indicate in any way that there are communications with a third party insurance carrier that are not memorialized in writing. Plaintiff offers no explanation as to why he believes that Mr. Schumb’s purported tendering of the claim to Defendant’s insurance carrier would not be documented in writing. To that end, Plaintiff has failed to show why artfully drafted interrogatories and requests for production of documents could not elicit the information sought about Mr. Schumb’s communications with Defendant’s insurance carrier. Moreover, it is evident that Defendant’s insurance carrier would have knowledge of any communications made by Mr. Schumb to it regarding claims made by Plaintiff. As such, Plaintiff can use discovery techniques to obtain the relevant information directly from Defendant’s insurance carrier.

Second, Plaintiff contends that deposing Mr. Schumb is the only way to obtain information about Mr. Schumb’s representations regarding the scheduling of mediation and his unavailability, first during May 2013 and later during June 2013. Plaintiff asserts that “[o]nly Mr. Schumb can testify regarding his initial representations that he was ‘unavailable’ until the mid-June timeframe” and “[w]hether [the] later change in position,” that the mediation must occur in May 2013 as he was unavailable in June 2013, “was simply a ruse to create a statute of limitations defense which did not exist.” (Opp’n., p. 7:14-25.) Plaintiff further indicates that deposing Mr. Schumb is the only way to determine “whether [he] was actually in New York in early June” and “whether he made efforts to schedule mediation” with mediators other than Mr. Needham. (Opp’n., p. 7:25-28.)

Plaintiff’s argument with regard to Mr. Schumb’s statements about the scheduling of mediation and his availability also lacks merit. Plaintiff already has evidence available to him regarding many of the facts he wishes to prove through Mr. Schumb’s deposition, as the representations allegedly made by Mr. Schumb regarding mediation and his availability were made directly to Plaintiff’s counsel. The majority, if not all, of the representations were made or memorialized in written correspondence and Plaintiff concedes that “there is a significant paper trail between and among attorney Schumb’s law firm and Plaintiff’s counsel.” (Opp’n., p. 6:25-26.)

Defendant points out in his reply papers that on 14 April 2014, Plaintiff served him with requests for production of documents, requests for admission, and form interrogatories which were designed to discover Mr. Schumb’s work and personal calendars, email, travel schedules, and correspondence from April 2013 to June 2013. (Reply, p. 8:15-21.) For example, request for production of documents No. 34 asks for documents constituting calendars for Mr. Schumb from 1 May 2013 through 17 June 2013, which reflect trials, mediations, and vacations that were scheduled at any time during the subject period. (Brody Reply Dec., Ex. B.) Similarly, request for production of documents No. 38 asks for all documents which indicate that Mr. Schumb was outside of California from 1 May 2013 through 17 June 2013. (Id.) Furthermore, requests for production of documents Nos. 27-29 request all communications with Defendant’s insurance carrier regarding any claim against Decedent or Defendant. (Id.) Thus, it appears that Plaintiff should be able to develop through the discovery recently propounded, facts and information that he seeks to obtain through Mr. Schumb’s deposition.

Accordingly, there are other practical means of obtaining the information sought and Plaintiff has not satisfied the first prong.

2. Whether the Information Sought is Relevant and Non-Privileged

With regard to the second prong, Plaintiff has the burden of establishing that the information sought is relevant to the instant case. Defendant has the burden of establishing any claim that the information sought is privileged.

First, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Here, information about Mr. Schumb’s statements to Defendant’s insurance carrier regarding the tendering of Plaintiff’s claim, Mr. Schumb’s representations regarding mediation and his availability for the same, and the facts supporting Mr. Schumb’s statements are relevant to Plaintiff’s allegations that the statute of limitations was tolled and Defendant should be equitably estopped from asserting the statute of limitations as a defense.

Second, in most depositions, questions of privilege may be dealt with on a question-by-question basis. (See Spectra-Physics, supra, 198 Cal.App.3d at p. 1497.) Thus, a party wishing to depose an attorney can normally satisfy the non-privileged inquiry very easily. (Id.)

Here, Plaintiff states in his opposition that he “has no intention of asking attorney Schumb about his conversations with his client or co-counsel.” (Opp’n., p. 8:12-13.) Plaintiff further asserts that the deposition questions would pertain to Mr. Schumb’s conversations with “Plaintiff’s counsel’s office,” “insurance companies,” “mediators,” and “other third parties regarding his purported efforts to settle this case pre-litigation,” which are not privileged. (Opp’n., p. 8:14-17.)

In his reply papers, Defendant argues that such communications would be privileged under Code of Civil Procedure section 2017.210. Code of Civil Procedure section 2017.210 allows “[a] party to obtain discovery of the existence and contents of any agreement under which any insurance carrier may be liable to satisfy in whole or in part a judgment that may be entered in the action” or information about “whether that insurance carrier is disputing the agreement’s coverage of the claim involved in the action, but not as to the nature and substance of that dispute.” (See Irvington-Moore, Inc. v. Super. Ct. (1993) 14 Cal.App.4th 733 [holding that an application for insurance is not discoverable under Code of Civil Procedure section 2017.210].)

Here, however, Plaintiff does not seek Mr. Schumb’s communication with Defendant’s insurance carrier to determine whether he can satisfy a judgment. As explained above, Plaintiff seeks this information counter Defendant’s statute of limitations defense. Thus, Defendant’s reliance on Code of Civil Procedure section 2017.210 is misplaced.

Furthermore, any objection based on privilege would not prevent Mr. Schumb’s deposition entirely, but at most might be invoked in the course of the deposition as to specific questions invading the attorney-client privilege.

Thus, Plaintiff satisfies the second prong.

3. Whether the Information Sought is Crucial to the Preparation of the Case

With regard to the third prong, the burden is on Plaintiff to show that the discovery sought is crucial to the preparation of his case. (Carehouse Convalescent Hosp. v. Super. Ct., supra, 143 Cal.App.4th at p. 1563.) In deciding whether an attorney’s deposition is crucial to the preparation of a party’s case, courts weigh the need for the discovery sought against the strong policy against permitting such depositions to occur. (Spectra-Physics, supra, 198 Cal.App.3d at p. 1497.)

As previously indicated, the information sought is relevant to Plaintiff’s arguments regarding equitable estoppel and the tolling of the statute of limitations, and is likely crucial to the preparation of his case. However, Plaintiff can obtain that information from sources other than Mr. Schumb and therefore the strong policy against permitting such depositions outweighs Plaintiff’s need to conduct the same.

Thus, Plaintiff has not satisfied the third prong.

C. Conclusion

Given the strength of the policy considerations against deposing opposing counsel and the fact that Plaintiff has not yet attempted to obtain the information sought through any alternative means, the Court concludes that Plaintiff has failed to establish extremely good cause for deposing Mr. Schumb.

Accordingly, Defendant’s motion to quash is GRANTED.

II. Plaintiff’s Motion to Compel Further Responses to the SI and RPD

Plaintiff moves to compel further responses to SI Nos. 1-6 and RPD Nos. 20-23 and 25, arguing that Defendant’s objection-only responses to the requests are without merit.

A. SI Nos. 1-6

1. Legal Standard

A party propounding form interrogatories may move for an order compelling further responses if that party deems an answer is evasive or incomplete and/or an objection is without merit or too general. (See Code Civ. Proc., § 2030.300; Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220-221.) The burden is on the responding party to justify any objections or failure to fully answer. (See Coy v. Super. Ct., supra, 58 Cal.2d at p. 220-221.)

2. Objections

As previously indicated, SI Nos. 1-6 asked Defendant to identify: all beneficiaries of Decedent’s estate and the Wilbert Lee and Joanne C. Asato Revocable Living Trust dated 26 June 1999 (the “Trust”); all assets received by any beneficiary of Decedent’s estate or the Trust; and all assets contained in the Decedent’s estate and/or the Trust at the time of her death. (Scruggs Dec., Ex. A.)

In his responses to the SI, Defendant objected to SI Nos. 1-6 as: irrelevant; seeking confidential information in violation of Decedent’s, Defendant’s, and the beneficiaries’ of Decedent’s estate right to privacy. Defendant further objected to the SI on the grounds that Plaintiff lacks standing to demand information concerning the Trust and Decedent’s estate, and providing a meaningful response would require him to breach his duties as trustee and executor.

In his opposition, Defendant attempts to justify his objections based on relevancy, his right to privacy in his financial information, lack of standing, and his fiduciary duties as trustee. Interwoven in his argument regarding privacy, Defendant also asserts that the financial information sought is protected under Civil Code section 3295.

a. Relevance

Plaintiff argues that the information sought by the SI is relevant to the instant case because he must determine whether any of the beneficiaries of the Trust or Decedent’s estate are personally liable to him for Decedent’s acts and consequently should be named in this lawsuit as defendants. Plaintiff asserts that Probate Code sections 19400 and 19402 and the case of Valentine v. Read (1996) 50 Cal.App.4th 787, require him to “name the beneficiaries of the trust and/or estate in his lawsuit,” to the extent that they may be personally liable for Decedent’s acts, and “introduce evidence of the assets retained in the trust and estate of Joanne Asato” and distributed to the beneficiaries, in order to prove the extent of the beneficiaries’ liability. (Mem. Ps & As., p. 3:23-28, 6:1-5.)

Defendant argues that the information sought is irrelevant because, “while it is true that trust beneficiaries who have received a distribution from the trust may be exposed to liability by a creditor of the estate,” Plaintiff is not a creditor of Decedent’s estate and has not established that his potential judgment cannot be satisfied from the trust estate.

In the case of Valentine v. Read, the plaintiffs brought an action for breach of a contract to make a will and recovery in quantum meruit against the decedent’s estate, the trustee of the estate, and a beneficiary of the estate. (Valentine v. Read (1996) 50 Cal.App.4th 787, 790.) The plaintiffs prevailed only on their quantum meruit cause of action and proposed a judgment holding the trustee and beneficiary of the estate individually liable under Probate Code sections 19400-19403. (Id.) The trustee and beneficiary objected to the proposed judgment, noting the trial judge had not allowed the plaintiffs to explore the disposition of the trust estate during trial and the plaintiffs had not established the beneficiary’s proportional share of the trust distributions as required to show the personal liability of the beneficiary. (Id.) The trial judge entered judgment in the form proposed by the plaintiffs. (Id.) In relevant part, the Court of Appeal reversed the trial court’s decision with respect to the trustee’s and beneficiary’s individual liability, and remanded the matter for determination of the amount of the beneficiary’s liability.

The Court of Appeal in Valentine v. Read explained that under Probate Code section 19400, if there is neither a probate proceeding nor a trust creditor claims proceeding, the liability of the trust to any creditor of the deceased settlor shall be as otherwise provided by law. (Valentine v. Read, supra, 50 Cal.App.4th at p. 793.) Furthermore, under Probate Code section 19402, beneficiaries who have received distributions from the trust under these circumstances are exposed to personal liability and such distributees may assert any defenses, cross-complaints, or setoffs that would have been available to the deceased settlor if the settlor had not died. (Id.) Their liability is limited to amounts that cannot be satisfied out of the trust estate, and to a pro rata portion of the creditor’s claim based on the proportion their distribution bears to the total distributions from the trust estate. (Id.)

The Court of Appeal indicated that there were numerous beneficiaries of the estate, beside the beneficiary against whom the judgment was obtained, who were not exposed to any liability because the plaintiffs did not join them as defendants to the lawsuit. (Id. at p. 793.) The Court of Appeal further indicated that joining the other beneficiaries might have had certain benefits for the plaintiffs. (Id. at p. 793-794.) Notwithstanding the fact that the plaintiffs had not joined the other beneficiaries of the trust, the Court of Appeal held that the pro rata limitation imposed by Probate Code section 19402 needed to be applied to determine the beneficiary’s personally liability, and remanded the case for the determination of the same. (Id. at p. 796.)

Here, Plaintiff points out that in this case there is “no estate opened” and the “Trustee did not file a notice to creditors.” (Mem. Ps & As., p. 3:23-25.) Plaintiff argues that as an unsecured creditor, he has named as defendants in the instant case Does 1 to 25, who he anticipates are, in part, the beneficiaries of Decedent’s estate and Trust. Plaintiff persuasively argues that in light of Probate Code sections 19400 and 19402, and the case of Valentine v. Read, financial information about the assets of decedent’s estate, any distributions from that estate, the trust documents, the identities of all beneficiaries, and the amount received by the beneficiaries is relevant to determine whether trust assets would be sufficient to satisfy Plaintiff’s claim and, if not, each beneficiaries’ potential liability under the Probate Code. The information sought is of particular importance to Plaintiff as he will not be able to establish that the beneficiaries of Decedent’s estate are personally liable if he does not name them as defendants in the instant lawsuit.

Defendant argues that the instant case is distinguishable from the case of Valentine v. Read, because the plaintiffs in that case were proceeding “post-judgment, having thus established themselves as creditors of the estate.” (Opp’n., p. 7:5-7.) Defendant asserts that Plaintiff is not a creditor of Decedent’s estate because he has not yet obtained a judgment in his favor and argues that, as such, the discovery sought is premature. Defendant cites no authority for his position that absent a judgment in Plaintiff’s favor the discovery sought is premature. Moreover, discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Here, the information is relevant because it might reasonably assist Plaintiff in evaluating the case, identifying possible defendants, and determining the possible liability of the potential defendants. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Thus, Defendant’s relevancy objection is overruled.

b. Privacy

In his opposition papers, Defendant argues generally that a right of privacy exists as to an individual’s confidential financial affairs even when the information sought is relevant to the litigation. (Opp’n., p. 3:17-26.) He further asserts that in addition to financial information, wills and estate planning documents are protected by the constitutional right of privacy. (Opp’n., p. 4:3-7.) Defendant contends that Plaintiff is entitled to “discover private financial information only after a demonstration that such discovery is necessary to prove his [. . .] substantive claims, such as a claim for conversion of theft.” (Opp’n., p. 5: 15-18.) Defendant argues that since Plaintiff has not asserted any allegations regarding financial wrongdoing and cannot establish that the information sought by the discovery requests is relevant to his claims of sexual abuse, Plaintiff has not established that there is a compelling need for discovery of his financial information that outweighs his privacy rights. (Opp’n., p. 5:22-28.)

The right to privacy protects an individual’s “reasonable expectation of privacy against a serious invasion.” (Pioneer Electronics, Inc. v. Super. Ct. (2007) 40 Cal.4th 360, 370.) It is well-established that the right to privacy extends to a person’s financial affairs. (See Cobb v. Super. Ct. (1979) 99 Cal.App.3d 543, 550.)

Where a serious invasion of the right to privacy is shown, the proponent of the discovery must demonstrate that the information sought is “directly relevant” to a claim or defense, and “essential to the fair resolution of the lawsuit.” (Britt v. Super. Ct. (1978) 20 Cal.3d 844, 859; see also Binder v. Super. Ct. (1987) 196 Cal.App.3d 893, 901 [holding “direct relevance” requires something more than an assertion that the requested discovery might lead to admissible evidence].) Once direct relevance has been demonstrated, the proponent of discovery must show that the information sought is not available through less intrusive means. (Allen v. Super. Ct. (1984) 151 Cal.App.3d 447, 449.) The Court must then carefully balance the right to privacy on the one hand, and the right of civil litigants to discover facts, on the other. (Pioneer Electronics, Inc. v. Super. Ct., supra, 40 Cal.4th at p. 371.)

First, with regard to the SI asking for the identification of the beneficiaries of the Trust, Defendant has failed to establish how the mere identification of all beneficiaries of Decedent’s estate and the Wilbert Lee and Joanne C. Asato Revocable Living Trust dated 26 June 1999 (the “Trust”) would violate any cognizable privacy interest.

Second, with regard to the SI requesting identification of all assets received by any beneficiary of Decedent’s estate or the Trust and all assets contained in Decedent’s estate and/or the Trust at the time of her death, Defendant has established that such financial information would be protected by his right to privacy. Therefore, Plaintiff must show that the information sought is directly relevant.

The financial information about the assets of Decedent’s estate, any distributions from that estate, the trust documents, the identities of beneficiaries, and the amount received by the beneficiaries are relevant to the instant case to determine whether trust assets would be sufficient to satisfy Plaintiff’s claim and, if not, each beneficiaries’ potential liability under the Probate Code. The information sought would reasonably assist Plaintiff in evaluating the case, identifying possible defendants, and determining the possible liability of the potential defendants. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.) As previously, indicated, the information sought is of particular importance to Plaintiff as he will not be able to name the beneficiaries as defendants or establish that they are personally liable unless he can discovery their identities and the amount of the distributions they have received. Defendant is not able to obtain the information through less intrusive means, and Plaintiff does not make such an argument. Defendant’s privacy interest in the financial information sought is outweighed by Plaintiff’s need for the information given the importance of the information sought to Plaintiff’s case with regard to identifying potential defendants and determining the extent of their liability.

Accordingly, Defendant’s privacy objection is overruled.

The Court notes that Plaintiff states that he is agreeable to a protective order stating that the discovery pertaining Defendant’s financial information is to be used only for purposes of this litigation and will not be provided to any third parties other than expert consultants and/or witnesses. The Court finds that such a protective order is appropriate in light of the privacy concerns at issue and will order the production of Defendant’s financial information subject to the same.

c. Civil Code section 3295

Defendant argues that the financial information sought by the discovery requests is protected under Civil Code section 3295. (Opp’n., p. 3:26-28.) Civil Code section 3295, subdivision (c) states that pretrial discovery of the financial condition of the defendant is not permitted for the purpose of recovering punitive damages unless the court enters an order permitting such discovery. (See Kerner v. Super. Ct. (2012) 206 Cal.App.4th 84,120; Jabro v. Super. Ct. (2002) 95 Cal.App.4th 754, 757.)

Defendant asserts that Plaintiff cannot obtain the financial information sought because he has not made a prima facie showing of entitlement to punitive damages and there is no claim of punitive damages in the first instance.

Defendant’s argument is without merit. Civil Code section 3295 does not apply in the instant case because Plaintiff does not seek the financial information sought in connection with a claim for punitive damages. As previously addressed, Plaintiff seeks the information sought by the discovery requests to determine the necessity of naming beneficiaries of Decedent’s estate as additional defendants in the instant lawsuit and determining the potential of holding them personally liable for his alleged injuries.

Accordingly, this objection is overruled.

d. Standing and Trustee’s Fiduciary Duties

In his opposition, Defendant argues that Plaintiff is not entitled to the discovery sought because “he has no standing to demand information concerning” the Trust or Decedent’s estate under Probate Code section 16060, et seq. (Opp’n., p. 8:3-7.)

Defendant 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, heir, or judgment creditor. Defendant contends that since Plaintiff is not entitled to a copy of the terms of the Trust or Decedent’s estate under the Probate Code, it follows that he is not entitled to any and all documents related to estate planning performed for Decedent.

Defendant’s argument is without merit as 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 Defendant 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. Whether Plaintiff would have standing to seek Defendant’s financial documents under the Probate Code if he filed a petition to obtain the same has no bearing on whether he may obtain the documents by way of interrogatories in the present case.

Similarly, Defendant argues that he has a fiduciary obligation to protect the interests of the beneficiaries and the trust estate under Probate Code sections 16002, 16006, and 16011, and a meaningful response would require him to violate those duties. Defendant cites no authority for this position. Moreover, where the information is relevant and Defendant has failed to establish that disclosure of the information sought would violate any serious right to privacy, discovery of the information is permitted under the Discovery Act.

Accordingly, Defendant’s argument with regard to standing is without merit and this objection is overruled.

3. Conclusion

Accordingly, all of Defendant’s objections are overruled and further responses to SI Nos. 1-6 are warranted. However, Defendant’s financial information shall be produced subject to a protective order that it is to be used only for purposes of this litigation and will not be provided to any third parties other than expert consultants and/or witnesses.

B. RPD Nos. 20-23 and 25

1. Legal Standard

A party propounding a request for production of documents may move for an order compelling a further response if it deems that a response is incomplete or evasive, or an objection in the response is without merit or too general. (Code Civ. Proc., § 2031.310, subd. (a).) The motion must set forth “specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1); Kirkland v. Super. Ct. (2002) 95 Cal.App.4th 92, 98.) Good cause is established simply by a fact-specific showing of relevance. (See Kirkland v. Super. Ct., supra, 95 Cal.App.4th at p. 98.) If good cause is shown, the burden shifts to the responding party to justify any objections. (Id.)

2. Good Cause

Discovery is allowed for any matters that are not privileged, relevant to the action, and reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc., § 2017.010.) Information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

As previously indicated, Plaintiff persuasively argues that in light of Probate Code sections 19400 and 19402, and the case of Valentine v. Read, financial information about the assets of Decedent’s estate, any distributions from that estate, the trust documents, the identities of beneficiaries, and the amount received by the beneficiaries is relevant to the instant case to determine whether trust assets would be sufficient to satisfy Plaintiff’s claim and, if not, each beneficiaries’ potential liability under the Probate Code. The information sought is of particular importance to Plaintiff as he will not be able to establish that the beneficiaries of the Decedent’s estate personally liable if he does not first name them as defendants in the instant lawsuit. Here, the information is relevant because it might reasonably assist Plaintiff in evaluating the case, identifying possible defendants, and determining the possible liability of the potential defendants. (See Gonzalez v. Super. Ct. (1995) 33 Cal.App.4th 1539, 1546.)

Accordingly, there is good cause for the discovery sought.

3. Objections

RPD Nos. 20-22 and 25 asked Defendant to produce all documents that constitute the Trust, Schedule A of the Trust, an accounting of the Trust, and/or any will or codicils to the “Will of Joanne Asato,” which were in effect on the date of Decedent’s death. RPD Nos. 23 asked Defendant to produce all documents that describe any disbursements or transfers of assets from the Trust made since the date of Decedent’s death. (Scruggs Dec., Ex. C.)

In his responses to the RPD, Defendant objected to RPD Nos. 20-23 and 25 as: irrelevant; seeking confidential information in violation of Decedent’s, Defendant’s, and the beneficiaries’ of Decedent’s estate right to privacy. Defendant further objected to the RPD on the grounds that Plaintiff lacks standing to demand information concerning the Trust and Decedent’s estate, and providing a meaningful response would require him to breach his duties as trustee and executor.

In his opposition, Defendant makes the same arguments attempting to justify his objections to the RPD based on relevancy, his right to privacy in his financial information, lack of standing, his fiduciary duties as trustee, and Civil Code section 3295 as he made with regard to the SI. As previously indicated, all of Defendant’s objections to the SI are overruled. Since the RPD request the same type of information that is sought by the SI, it follows that Defendant’s objections to the RPD must be overruled as well.

4. Conclusion

Accordingly, further responses to RPD Nos. 20-23 and 25 are warranted. However, as noted above, Defendant’s financial information shall be produced subject to a protective order that it is to be used only for purposes of this litigation and will not be provided to any third parties other than expert consultants and/or witnesses.

III. Requests for Sanctions

Defendant requests monetary sanctions in connection with his motion and Plaintiff’s motion. Plaintiff requests monetary sanctions in connection with his motion.

A. Defendant’s Requests for Sanctions

1. Motion to Quash

Defendant requests monetary sanctions in the amount of $3,675.00 under Code of Civil Procedure section 1987.2, subdivision (a), in connection with his motion to quash. This request appears only in Defendant’s memorandum of points and authorities.

Code of Civil Procedure section 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”

Here, Defendant’s notice of motion is bereft of any mention of a request for sanctions. In the notice of motion, Defendant does not indicate the type or amount of sanctions sought, the statutory basis for the request, or against whom sanctions are sought. Thus, Defendant’s request for sanctions is not code-compliant.

Accordingly, Defendant’s request for monetary sanctions is DENIED.

2. Motion to Compel Further Responses

Defendant requests monetary sanctions in the amount of $5,750.00 against Plaintiff and his counsel under Code of Civil Procedure sections 2030.290 and 2031.310, in connection with Plaintiff’s motion to compel further responses to the SI and RPD.

First, Code of Civil Procedure section 2030.290 does not apply in the instant case, because it deals with sanctions issued in connection with a motion to compel initial responses to interrogatories, and Plaintiff’s motion is one to compel further responses.

Second, Code of Civil Procedure section 2031.310, subdivision (h) states that the court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.

Here, Defendant was not successful in his opposition to Plaintiff’s motion to compel further responses to the RPD and therefore is not entitled to an award of monetary sanctions under Code of Civil Procedure section 2031.310, subdivision (h).

Accordingly, Defendant’s request for monetary sanctions is DENIED.

B. Plaintiff’s Request for Sanctions

Plaintiff requests monetary sanctions in the amount of $2,500.00 under Code of Civil Procedure sections 2030.300, subdivision (b) and 2031.310, subdivision (d), in connection with his motion to compel further responses.

Code of Civil Procedure section 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.”

Here, while Plaintiff indicates in his notice of motion that he is requesting an award of sanctions, he does not indicate the type or amount of sanctions sought, the statutory basis for the request, or against whom sanctions are sought. Thus, Plaintiff’s request for sanctions is not code-compliant.

Accordingly, Plaintiff’s request for monetary sanctions is DENIED.

Conclusion and Order

Defendant’s motion to quash is GRANTED.

Plaintiff’s motion to compel further responses to SI Nos. 1-6 and RPD Nos. 20-23 and 25 is GRANTED, subject to a protective order that Defendant’s financial information is to be used only for purposes of this litigation and will not be provided to any third parties other than expert consultants and/or witnesses. Accordingly, within 20 calendar days of the date of the filing of this Order, Defendant shall provide verified code-compliant further responses to SI Nos. 1-6 and RPD Nos. 20-23 and 25, without objections, and produce documents in accordance with the responses to the RPD.

Defendant’s request for monetary sanctions in connection with his motion to quash is DENIED.

Defendant’s request for monetary sanctions in connection with Plaintiff’s motion to compel further responses is DENIED.

Plaintiff’s request for monetary sanctions is DENIED.