Matter of Peter Horning Fultz Trust

Case Number

19PR00521

Case Type

Hearing Date / Time

Thu, 10/31/2024 - 09:00

Nature of Proceedings

1) Motion: Compel Further Responses to Special Interrogatories; Sanctions in the Amount of $2,850.00; and, 2) Petition Amended Petition to Appoint Successor Trustee; Request Accounting

Tentative Ruling

Appearances are required.

TENTATIVE RULING:

The motion of respondents to compel further responses to respondent’s set four special interrogatories is denied.

Background:

On November 2, 2022, petitioner Peter H. Fultz (Peter) filed his operative first amended petition (the FAP) against respondents Eric H. Fultz (Eric) and Susan Fultz (Susan). (Note: The Court follows the parties’ practice of referring to persons with the same surnames by their first names. No disrespect is intended.) Eric and Peter are brothers and the beneficiaries of the Peter Horning Fultz Trust (the Trust), of which Eric is the successor trustee. Susan is the wife of Eric.

In the FAP, Peter alleges that Eric has misrepresented Trust assets, improperly added Susan to Trust accounts, failed to make proper distributions of Trust assets, claimed improper expenses paid from the Trust, and engaged in other conduct constituting improper management of the Trust. Peter seeks to replace Eric as successor trustee of the Trust, and requests that Eric file an accounting of trust assets during the time Eric acted as sole trustee, that Eric and Susan pay to Peter what Peter alleges are shortfalls in the amounts Peter should have received from the Trust, that Susan repay to the Trust any funds she received from Trust accounts, and that property located at 2448 San Marcos Pass Road in Santa Barbara, California, be distributed as provided in the Trust. Peter also seeks double damages and attorney’s fees under Probate Code section 859.

On January 4, 2024, Eric and Susan filed their response to the FAP denying its allegations and asserting that at times, Peter has forgotten that he received distributions from the Trust.

On September 30, 2024, Eric and Susan filed a motion for an order compelling Peter to provide further responses to a fourth set of specially prepared interrogatories (the SI), and for sanctions in the amount of $2,850. In support of the motion, Eric and Susan submit the declaration of their counsel, Miles T. Goldrick, who states that on July 29, 2024, he propounded the SI to Peter, which consist of a total of seven requests numbered 22 through 28. (Goldrick Decl., ¶ 2 & Exh. A.) Goldrick received the responses of Peter to the SI on August 28, 2024. (Id. at ¶ 3 & Exh. B.)

On September 5, 2024, Goldrick communicated with counsel for Peter regarding the responses to the SI, and in response received an email from counsel stating that Peter would supplement his responses to SI nos. “22.1, 23.1, 24.1 and 24.3”, that Peter would not amend his responses to SI nos. “23.4, 24.2, 25.1, 25.2 and 26.2”, and that Peter would not respond to SI nos. 22 to 26.1. (Goldrick Decl., ¶¶ 5-6 & Exhs. C-D.)

In support of his opposition to the motion, Peter submits the declaration of his counsel, Carissa N. Horowitz. Horowitz does not dispute that Peter agreed to supplement his responses to subpart (1) of SI nos. 22, 23, and 24, and subpart 4 (3) of SI no. 24, and contends that Peter refused to respond to SI no. 26, subpart (3), through SI no. 28, subpart (3), because these requests exceed the limit of 35 interrogatories set forth in subdivision (f) of Code of Civil Procedure section 2030.060. (Horowitz Decl., ¶ 5.) Horowitz further asserts that Eric and Susan stated that Peter’s agreement to supplement his responses to SI nos. 22 through 25 was satisfactory. (Id. at ¶ 6.)

Horowitz further contends that she did not receive any additional communications from Goldrick prior to the filing of the present motion, and that on October 3, 2024, after the present motion was filed, Horowitz emailed Goldrick stating that Peter was reviewing and signing his supplemental responses to SI nos. 26, subpart (3), through 28, subpart (3). (Horowitz Decl., ¶¶ 8-9.) The supplemental responses of Peter were served on October 4, 2024. (Id. at Exh. B.)

Analysis:

There exist procedural and substantive deficiencies which justify the denial of the present motion.

The undisputed information and evidence shows that the SI at issue each contain three subparts. (Sep. Stmt. at pp. 1-2 [SI nos. 22-23]; 3 [SI no. 24]; 4 [SI no. 25]; 5 [SI no. 26]; see also Goldrick Decl., Exh. A at pp. 4-5 [SI nos. 27 & 28].) Furthermore, subpart (2) of SI nos. 22 through 28 is identical, requesting that Peter state “the names and contact information for each person who witnessed [sic] any alleged unequal distribution” of Trust assets to Peter. (Ibid.) Specially prepared interrogatories may not contain subparts. (Code Civ. Proc., § 2030.060, subd. (f).)

Moreover, the inclusion of three subparts in each of the SI at issue causes the SI to exceed the limit of thirty-five specially prepared interrogatories set forth under Code of Civil Procedure section 2030.030, subdivision (a)(1). Though available evidence and information further demonstrates that Eric and Susan provided a declaration re: additional discovery which was signed by their counsel on September 19, 2024, this declaration was not attached to the SI as required under Code of Civil Procedure sections 2030.040, subdivision (a), and section 2030.050. (See also Code Civ. Proc., § 2030.030, subd. (c) [“[u]nless a declaration as described in Section 2030.050 has been made, a party need only respond to the first 35 specially prepared interrogatories served, if that party states an objection to the balance, under Section 2030.240, on the ground that the limit has been exceeded”].)

In addition, “[a] motion concerning interrogatories … must identify the interrogatories … by set and number.” (Cal. Rules of Court, rule 3.1345(c).) In the notice and the supporting memorandum submitted in support of the motion, Eric and Susan fail to identify any specific requests to the extent fewer than all of the SI are at issue. Though it appears from the factual arguments 5 presented in the motion, and appearing in the parties’ meet and confer communications attached to the Goldrick declaration, that Eric and Susan seek to compel further responses to SI nos. 22 through 28, the separate statement submitted in support of the motion sets forth the text and the responses of Peter to SI nos. 22 through 26 only. Therefore, it is unclear to the Court whether Eric and Susan intend to seek further responses to SI nos. 22 through 26 only, or whether the separate statement fails to set forth the text of each request and response at issue as required under California Rules of Court, rule 3.1345(c). To the extent Eric and Susan seek to compel further responses to all of the SI, the separate statement fails to comply with California Rules of Court, rule 3.1345(c).

Further, with respect to the request of Eric and Susan for an award of monetary sanctions, the amount of sanctions needs to reflect the reasonable expenses incurred as a result of a misuse of the discovery process. (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) Though Eric and Susan request sanctions in the amount of $2,850, wholly absent from the motion is any information showing why this amount is reasonable. (See, e.g., Goldrick Decl., ¶ 14 [stating the amount of sanctions requested only].)

Notwithstanding the examples provided above of deficiencies in the motion, which are intended to be illustrative but not exhaustive, available information demonstrates that Peter has provided supplemental responses to SI nos. 22 through 28. (Horowitz Decl., Exh. B.) If a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) In exercising that discretion, the court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).) Under the circumstances present here and further discussed above, the Court will exercise its discretion to deny.