Public Guardian of Santa Clara County vs. Horn, et al		CASE NO. 110PR164818
DATE: 31 October 2014	TIME: 9:00	LINE NUMBER: 3

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 408.808.6856 and the opposing party no later than 4:00 PM Thursday 30 October 2014.  Please specify the issue to be contested when calling the Court and counsel.

On 31 October 2014, the motion of Petitioner Public Guardian of the County of Santa Clara (“Petitioner,” or alternatively, “Public Guardian”), as Conservator of the Person and Estate of Hiroko T. Clark (“Conservatee”), to compel the attendance at deposition of Respondents Randy Horn and Robin Horn (collectively, “Respondents”), Trustees of the Horn Family Trust dated February 9, 1998, and for available dates from Respondents’ attorney, Bryan Kreft, Esq., for the deposition of non-party deponent Peter Jorgensen, and for monetary sanctions was argued and submitted.

Respondents filed a formal opposition to the motion. Petitioner filed a reply to Respondents’ formal opposition.

1. Statement of Facts.

This case started with a petition filed on 19 January 2010 for the appointment of conservator of the person of Hiroko T. Clark (“Conservatee”). On 20 April 2010, Conservatee’s son, Alan H. Clark, was appointed conservator of her person.

A few years later, a quitclaim deed relating to a real property located at 3400 Baggins Court in San Jose, California, and purportedly executed by the Conservatee on 4 February 2013, was recorded in the Santa Clara County Recorder’s Office. The quitclaim deed transferred title to said property from Hiroko T. Clark to Alan H. Clark. Shortly after, a deed of trust relating to the same real property was recorded with the Santa Clara County Recorder’s Office as collateral to a loan, which Alan H. Clark allegedly obtained from the Respondents.

On 29 July 2013, Alan H. Clark was removed as conservator, and the Public Guardian of the County of Santa Clara was appointed as temporary conservator by the Court’s own motion. Matthew Crosby, Esq. was also designated as court appointed counsel for the Conservatee, and is still acting as co-counsel together with the Public Guardian pursuant to the Order of 12 August 2013.

Subsequently, Conservatee’s counsel filed a petition under Probate Code §850 seeking, among other things, an order to quiet title to the 3400 Baggins property. Respondents, as named beneficiaries of the trust deed, filed a response to the petition, and also filed a cross-petition to confirm the validity of the trust deed and for other remedies.

The matter is currently set for trial on 12 December 2014.

1. Discovery Dispute.

On 10 September 2014,Petitioner served by US mail a notice of taking oral deposition of Respondents Randy Horn and Robin Horn and for production of documents. The deposition was scheduled to take place on 1 October 2014. On 16 September 2014, Petitioner served a similar notice for the deposition of Peter Jorgensen, a non-party, with a deposition date of 6 October 2014.

On 18 September 2014, Respondent’s counsel sent a letter via email and US mail, essentially asking Petitioner to withdraw the deposition notices arguing that the case has settled. On the same date, Petitioner’s counsel sent a reply letter by email and US mail denying the assertion that the case has settled, and refusing to withdraw the deposition notices. The letter also requested Respondents’ counsel to provide alternate dates, in case counsel and his clients were unavailable for the noticed deposition dates. Petitioner made similar requests for alternate dates by email and US mail sent to Respondents’ counsel on four additional occasions. Petitioner also sent a letter on 30 September 2014 advising Respondents that a hearing date of 31 October 2014 was reserved for the purpose of obtaining an order compelling attendance at depositions.

Respondents served written objections to the deposition notices relating to the Horns and third party Peter Jorgensen on 27 September 2014 and 3 October 2014, respectively. Respondents object to both deposition notices on the grounds that Petitioner did not clear the deposition dates with Respondents’ counsel, and that both Respondents and their counsel are unavailable on the noticed dates.[1] On 3 October 2014, replying to an email request from Petitioner’s counsel, Respondents’ counsel reiterated his office’s unavailability for the 6 October 2014 deposition of third party Peter Jorgensen.

On 6 October 2014, Petitioner filed the instant motion seeking an order compelling the attendance at deposition of Respondents, compelling Respondents’ counsel to provide available dates for the deposition of third party Peter Jorgensen, and imposing monetary sanctions against Respondents and their counsel jointly and severally. Respondents filed a formal opposition on 20 October 2014, to which Petitioner replied on 23 October 2014.

III.     Analysis.

1. Request for Order Compelling Respondents Randy and Robin Horn’s Attendance at Deposition.

To compel attendance at a deposition, after a party failed to appear, the moving party must show that the deponent was properly served with a deposition notice. Code Civ. Proc. §2025.280(a). The moving party must then show that the deponent did not appear for the deposition. Code Civ. Proc. §2025.450(a). Finally, the moving party must show that follow-up contact was made. Code Civ. Proc. §2025.450(b)(2); Leko v. Cornerstone Home Inspection (2d Dist. 2001) 86 Cal.App.4th 1109, 1124.

In the instant case, on 10 September 2014, Petitioner served a notice of taking oral deposition of Respondents Randy and Robin Horn and for production of documents dated 10 September 2014 via US mail.[2] Respondents did not contest in their opposition papers Petitioner’s claim that they failed to attend the deposition noticed for 1 October 2014. The correspondence letters exchanged between Petitioner and Respondents, as well as Respondents written objection to the deposition notice clearly show that Respondents had no plan to attend, and did not in fact attend the noticed deposition.[3] Finally, Petitioner tried at least on five separate occasions to meet and confer with Respondents by requesting them to provide alternate dates for the depositions, in case Respondents and their counsel were not available on the originally noticed date.[4]

Respondents’ opposition to the motion is essentially based on three grounds: i) Petitioner’s counsel failed to clear the date with Respondents’ counsel before scheduling the deposition in violation of “Rule 3 of Professionalism for Santa Clara County”; 2) the dispute between Petitioner and Respondents is settled, therefore discovery is not necessary; and 3) Respondents’ counsel is not available for the 1 October 2014 date due to a long cause trial on a separate matter set to begin on 3 November 2014.

Respondents did not provide any authority allowing them to refuse the attendance of an otherwise duly noticed deposition merely based on an alleged violation of Section 3 of the Code of Professionalism for Santa Clara County. Nor did the wording of the stated rule suggest such consequence for its violation.[5] Moreover, Petitioner’s counsel has clearly tried to accommodate the scheduling interests of Respondents and their counsel by repeatedly asking for alternate dates on which they would be available for the deposition. On the contrary, Respondents’ counsel never responded to those requests by providing alternate dates of his and his clients’ availability. Even more, Petitioner is not required under the Discovery Act to clear a date with opposing counsel before scheduling a deposition. What is required, instead, is for the deposition to be scheduled for a date at least 10 days after service of the deposition notice. Code Civ. Proc. $2025.270(a). Petitioner served the deposition notice on 10 September 2014 for a deposition date of 1 October 2014, which is far beyond the statutory requirement.

Respondents’ claim that no discovery is needed because the case is settled is also unavailing. Respondent’s counsel did not offer any evidence in support of the claim other than repeatedly making the statement that “Respondents believed the case was settled.” An examination of the Court records did not show any settlement or notice of settlement having been filed. To the contrary, the matter is currently set for trial on 18 December 2014. In a reply to Respondents’ opposition filed on 23 October 2014, Petitioner emphatically denied the existence of the claimed settlement. Respondents’ own opposition states at one point:

“On June 6, 2014, the Horns believed that they reached a tentative settlement with the Public Guardian. The settlement was conditioned on the availability of Alan’s life insurance to reimburse the Public Guardian’s claimed damages. The parties believed that there was a reasonable probability that Hiroko was the beneficiary of Alan’s life insurance policy. [….] However, the Horns discovered that Hiroko was not a beneficiary under the policy of life insurance. Rather, the beneficiary under Alan’s life insurance policy was Alan’s wife Maria. Based on this, the Horns immediately named Maria as a Roe cross-defendant. The Horns have settled the matter with Maria contingent only upon final settlement with the Public Guardian. [….]”[6] [internal citations omitted]

In view of the above statements, it is not clear how Respondents still believe the dispute with Petitioner is settled. The condition, which the purported June 6, 2014 settlement was contingent on, has clearly failed. New players have entered the field, requiring a renewed effort towards resolving the dispute. Respondents did not produce any evidence or cite any authority precluding Petitioner from exercising its discovery rights.

The third ground of opposition raised by Respondents relied on the unavailability of Respondents’ counsel for the deposition due to a two-week trial on a separate case, scheduled to begin on 3 November 2014.[7] This argument is untenable in view of the fact that the deposition was noticed for 1 October 2014 – more than a full month prior to the beginning of trial on the other matter. Even if there was a genuine scheduling conflict, Respondents could not refuse to attend the deposition solely on that ground. The appropriate procedure should be to meet and confer with Petitioner to reschedule the deposition date or, if that did not work out, to file a motion or ex parte application with the Court to shorten or extend the time for scheduling of the deposition. Code Civ. Proc. §2025.270 (d). Petitioner repeatedly offered to accommodate any scheduling needs Respondents might have, but Respondents failed to take advantage of those offers by simply refusing to provide alternate dates of availability.

Thus, the Court finds that Petitioner has served a code-compliant deposition notice on Respondents, and Respondents have failed to attend the deposition without sufficient justification. The Court also finds that Petitioner has made a good-faith attempt to resolve the issue before bringing the matter before the Court. See Code Civ. Proc. §2025.450(b)(2); Leko, supra, 86 Cal.App.4th at 1124; Sears, Roebuck & Co. v. National Un. Fire Ins. Co. (2d Dist. 2005) 131 Cal.App.4th 1342, 1351-52.

The motion of Petitioner to compel Respondents’ attendance at deposition is GRANTED. In consideration of Respondents’ counsel’s upcoming trial schedule, a deposition date shall be set no later than 21 November 2014. Respondents and their counsel shall cooperate in good faith in the selection of the deposition date. Respondents Randy Horn and Robin Horn shall attend the deposition so set.

1. Motion to Compel Respondents’ Counsel to Provide Available Dates for the Deposition of Third Party Peter Jorgensen.

With reference to the deposition of a non-party deponent, Code Civ. Porc. §2025.280 (b) provides, “[t]he attendance and testimony of any other deponent, as well as the production by the deponent of any document, electronically stored information, or tangible thing for inspection and copying, requires the service on the deponent of a deposition subpoena under Chapter 6 (commencing with Section 2020.010).” [emphasis added]. Based on the evidence submitted by Petitioner in relation to the deposition of third party Peter Jorgensen, neither the deposition subpoena, nor the notice of deposition was served on the deponent.[8]

In addition, the memorandum of points and authorities in opposition to the motion filed on 20 October 2014 indicated that Petitioner re-noticed the deposition of Peter Jorgensen for 28 October 2014.[9]  On 23 October 2014, Petitioner filed a reply to the opposition, but did not contest the above statement. Thus, the Court treats the request with reference to the non-party deposition as moot.

1. Sanctions.

The Court notes the following:

Code of Civil Procedure, § 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. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”

The notice of motion filed by Petitioner on 6 October 2014 did not include a request for sanctions.

Did the accompanying memorandum of points and authorities and the declaration of Michael C. Crosby, Esq., filed on the same date, include a code-compliant request for and discussion of monetary sanctions?[10]

In addition, Petitioner filed an amended notice of motion on 14 October 2014, this time including a detailed and code-compliant request for monetary sanctions against Respondents and their counsel, jointly and severally.

Is the request for sanctions supported by a memorandum of points and authorities?

Is the request for sanctions timely?

Both parties should be ready to discuss the issue of sanctions.

1. Order.

The motion of Petitioner to compel Respondents’ attendance at deposition is GRANTED. A deposition date shall be set no later than 21 November 2014. Respondents and their counsel shall cooperate in good faith in the selection of the deposition date. Respondents Randy Horn and Robin Horn shall attend the deposition so set.

Petitioner’s request in relation to the deposition of third party Peter Jorgensen is moot.

Sanctions deferred.

 

 

________________­­­____________ DATED:

_________________________­­­________________________ HON. SOCRATES PETER MANOUKIAN Judge of the Superior Court County of Santa Clara

[1] The 27 September 2014 written objection contains a recitation of general boilerplate objections that are not specific to the notice of deposition. It also includes responses (with some objections) to each one of the forty-two document requests demanded in the deposition notice. Since Petitioner’s motion only seeks an order compelling Respondents’ attendance at deposition, the Court did not address the demand for production of documents part of the deposition notice.

[2] Declaration of Matthew A. Crosby in Support of Petitioner’s Motion for Order Compelling Attendance at Deposition (hereafter “Matthew Crosby Dec.”), Exh. A, p.8.

[3] Id., Exhs. C thru N.

[4] Id., Exhs. C thru H, J thru L, and N.

[5] Section 3 of the Santa Clara County Code of Professionalism (adopted 24 June 1992 and Revised 25 October 2007) provides:

“A lawyer should understand and advise his or her client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.

For example:

1. A lawyer should make reasonable efforts to schedule meetings, hearings, and discovery by agreement whenever possible and should consider the scheduling interests of opposing counsel, the parties, witnesses, and the court. Misunderstandings should be avoided by sending formal notice after agreement is reached.
2. A lawyer should not arbitrarily or unreasonably withhold consent to a request for scheduling accommodations.
3. A lawyer should not engage in delay tactics in scheduling meetings, hearings and discovery.
4. A lawyer should try to verify the availability of key participants and witnesses either before a meeting, hearing or trial date is set or if that is not feasible, immediately after so that he or she can promptly notify the court, or other tribunal, and opposing counsel of any likely problems.

A lawyer should notify opposing counsel and, if appropriate, the court or other tribunal as early as possible when scheduled meetings, hearings or depositions must be cancelled or rescheduled and provide alternate dates when possible.”

[6] Randy and Robin Horn’s Points and Authorities in Opposition to Motion by Public Guardian for Order Compelling Attendance at Depositions (hereafter “Memo of Ps & As in Opposition to Motion”), p.3, ln 15-23.

[7] Elizabeth P. Ancheta, et al v. Deutsche Bank National Trust Company, et al, Santa Clara Superior Court, Case No. 110CV179008. This case is scheduled for a long cause trial with a time estimate of 10 days, beginning 3 November 2014. The last date for the trial, excluding weekends and holidays, will be 17 November 2014.

[8] Matthew Crosby Decl., Exh. B, pp. 5, 7. The proof of service attached to the deposition subpoena was not completed and signed. (p.5). The proof of service of the notice of deposition did not include the name and address of third party deponent Peter Jorgensen in the list of parties upon whom service was performed. (p.7).

[9] Memo of Ps & As in Opposition to Motion, p. 5, lns.16-19.

[10] Code of Civil Procedure section 2023.040 requires a notice of motion for sanctions to be supported by a memorandum of points and authorities. Pursuant to the California Rules of Court, such memoranda “must contain” “a concise statement of the law . . . and a discussion of the statutes . . . cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) The failure to provide the court with the legal basis for the requested relief is grounds for denying a motion. (Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [indicating that court may deny motion not accompanied by a memorandum setting forth the legal basis for the relief requested].)