Mark Jacobs et al vs William W Nicholson et al
Mark Jacobs et al vs William W Nicholson et al
Case Number
20CV03026
Case Type
Hearing Date / Time
Mon, 09/23/2024 - 10:00
Nature of Proceedings
Motions to Compel (2)
Tentative Ruling
Mark Jacobs, et al. v. William W. Nicholson, et al.
Case No. 20CV03026
Hearing Date: September 23, 2024
HEARING: 1. Defendants’ Motion to Compel Further Responses to Requests For Production of Documents (Set Three)
3. Defendants’ Motion to Compel Further Responses to Special Interrogatories (Set Three)
ATTORNEYS: For Plaintiffs Mark Jacobs and Trisha Blake: Craig S. Granet and Claire Mitchell
For Defendants William W. Nicholson and Sandra Shinn Nicholson: Gregg D. Zucker
TENTATIVE RULING:
1. Defendants’ motion to compel further responses to requests for production of documents, set three, is denied.
a. Plaintiffs shall provide defendants with a privilege log identifying any responsive estate planning documents withheld, pursuant to Code of Civil Procedure section 2031.240, subdivision (c), no later than October 7, 2024.
2. Defendants’ motion to compel further responses to special interrogatories, set three, is denied.
Background:
This action was commenced on September 21, 2020, by the filing of the original complaint by plaintiffs Mark Jacobs (“Mark”) and Trisha Blake (“Blake”) as Co-Trustees of the Trust of Irwin L. Jacobs (“Irwin”), Mark Jacobs and Trisha Blake as Personal Representatives of the Estate of Irwin L. Jacobs, and Mark Jacobs and Trisha Blake as Personal Representatives of the Estate of Alexandra Jacobs (“Alexandra”) (collectively “plaintiffs”). Defendants are William Nicholson (“William”) and Sandra Shinn Nicholson (“Sandra”) (collectively “defendants”). (Note: due to common surnames some parties will be referred to by their given names to avoid confusion. No disrespect is intended.)
On December 11, 2020, plaintiffs filed their first amended complaint (“FAC”) against defendants. The FAC sets forth 12 causes of action for breach of written contract, common counts, written promissory note, and oral promissory note.
As alleged in the FAC:
Mark and Blake are the Trustees of the Trust of Irwin and are the personal representatives of the estate of Irwin. (FAC, ¶¶ 3, 4.) Mark and Blake are the personal representatives of the estate of Alexandra. (Id. at ¶ 5.)
On May 4, 2021, Irwin entered into a written contract with defendants where it was agreed that, in exchange for certain payments, Irwin would acquire an equity interest in real property owned by defendants at 256 Eucalyptus Hill Drive, Santa Barbara. (FAC, ¶ 10.) Pursuant to the agreement, Irwin paid $1,000,000 on May 7, 2021, and another $1,000,000 on July 9, 2001. (Id. at ¶ 11.) Pursuant to the agreement, the $2,000,000 gave Irwin a 14.4 percent interest in the property and, upon sale of the property, Irwin would receive 14.4 percent of the gross proceeds of the sale after deducting normal selling expenses and repayment of any balance remaining on what had been in 2001, a $2,000,000 first mortgage. (Ibid.) The property was sold on July 24, 2020, for $30,800,000. (Id. at ¶ 12.) Defendants breached the agreement by failing to pay plaintiffs their share of the proceeds. (Id. at ¶ 13.)
On January 6, 2014, William, for valuable consideration, executed and delivered to Irwin a Secured Demand Promissory Note in the principal amount of $120,000, payable on demand, with interest at the rate of six percent per annum from the date of the note. (FAC, ¶ 18 & Exh. A.) On July 12, 2019, William agreed with David Mahler, a representative of plaintiffs, that the note would be paid upon the sale of the property. (Id. at ¶ 19.) Following the sale of the property, on August 26, 2020, plaintiffs demanded that William pay the note, but William refused to pay any part of it. (Id. at ¶¶ 20, 21.)
On July 21, 2014, William, for valuable consideration, executed and delivered to Irwin a Secured Demand Promissory Note in the principal amount of $100,000, payable on demand, with interest at the rate of six percent per annum from the date of the note. (FAC, ¶ 26.) On July 12, 2019, William agreed with David Mahler, a representative of plaintiffs, that the note would be paid upon the sale of the property. (Id. at ¶ 27.) Following the sale of the property, on August 26, 2020, plaintiffs demanded that William pay the note, but William refused to pay any part of it. (Id. at ¶¶ 28, 29.)
On September 8, 2014, William, for valuable consideration, executed and delivered to Irwin a Secured Demand Promissory Note in the principal amount of $80,000, payable on demand, with interest at the rate of six percent per annum from the date of the note. (FAC, ¶ 34.) On July 12, 2019, William agreed with David Mahler, a representative of plaintiffs, that the note would be paid upon the sale of the property. (Id. at ¶ 35.) Following the sale of the property, on August 26, 2020, plaintiffs demanded that William pay the note, but William refused to pay any part of it. (Id. at ¶¶ 36, 37.)
On July 25, 2013, William, for valuable consideration, executed and delivered to Irwin a Secured Demand Promissory Note in the principal amount of $275,000, payable on demand, with interest at the rate of six percent per annum from the date of the note. (FAC, ¶ 42.) On July 12, 2019, William agreed with David Mahler, a representative of plaintiffs, that the note would be paid upon the sale of the property. (Id. at ¶ 43.) Following the sale of the property, on August 26, 2020, plaintiffs demanded that William pay the note, but William refused to pay any part of it. (Id. at ¶¶ 44, 45.)
On November 30, 2003, William, for valuable consideration, made an oral promissory note to Dan Lindsay in the principal amount of $700,000, with interest, payable on demand, (FAC, ¶ 50.) On or before January 2, 2005, Irwin acquired the note from Lindsay. (Ibid.) On January 2, 2005, William paid $500,000 of the principal and interest then due. (Ibid.) On several occasions between January 2, 2005, and the death of Irwin on April 10, 2019, William agreed with Irwin that the balance of the note would be paid upon the sale of the property and on July 12, 2019, William agreed with David Mahler, a representative of plaintiffs, that the note would be paid upon the sale of the property. (Id. at ¶ 51.) Following the sale of the property, on August 26, 2020, plaintiffs demanded that William pay the note, but William refused to pay any part of it. (Id. at ¶¶ 52, 53.)
Defendants filed their answer to the FAC on May 3, 2021, asserting a general denial and 15 affirmative defenses.
Defendants now move to compel further responses to requests for production of documents, set three (“RFP’s”) and for production of responsive documents. Defendants also move to compel further responses to special interrogatories, set three (“SI’s”)
Plaintiffs oppose the motions.
Analysis:
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property.” (Code Civ. Proc., § 2017.010.)
“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)
“A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) Defendants provided the meet and confer declaration as well as meet and confer emails. All relevant issues were addressed, and defendants did make a reasonable and good faith attempt at an informal resolution of each issue.
“In deciding whether a matter is subject to discovery because it is relevant to the subject matter of the pending action, there is no precise or universal test of relevancy furnished by the law. Relevancy to subject matter must be determined in each case according to the teachings of reason and judicial experience. [Citations.] Although relevancy to the subject matter is a broader concept than relevancy to the issues [citation], if the information sought to be elicited relates to matters of little or no practical benefit to the party seeking disclosure, a timely objection on the grounds that the question asked is not relevant to the subject matter in the pending action and not reasonably calculated to lead to admissible evidence should be sustained by a trial judge.” (Covell v. Superior Court (1984) 159 Cal.App.3d 39, 42-43.)
- Request for Production of Documents
Code of Civil Procedure, section 2031.010 provides, in pertinent part:
“(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.
“(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”
“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:
“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .
“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or
“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)
A motion to compel further responses to a request for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.) (“Glenfed”) Once good cause is established by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure. (See Hartbrodt v. Burke (1996) 42 Cal.App.4th 168, 172-174.)
“The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.” (Cal. Rules of Court, rule 3.1113(b).) Both the moving papers and opposition are essentially devoid of legal authorities in support of the respective parties’ positions.
The requests in dispute are as follows:
44. “All Wills of Irwin Jacobs since 1999.”
46. “All Declarations of Trust for the Trust of Irwin L. Jacobs.”
47. “All Certificates of Trust for the Trust of Irwin L. Jacobs.”
48. “All DOCUMENTS, other than any Declarations of Trust or Certificates of Trust, regarding the establishment of the Trust of Irwin L. Jacobs.”
49. “All DOCUMENTS, other than any Declarations of Trust or Certificates of Trust, which grant property from Irwin Jacobs to the Trust of Irwin L. Jacobs.”
52. “All DOCUMENTS regarding any economic interests YOU have in the estates that are involved in this litigation.”
53. “All DOCUMENTS regarding any economic interests YOU have in the trusts that are involved in this litigation.”
Plaintiffs responded to each of the requests by asserting objections, including those based on the right to privacy, relevance, and that the requests are not reasonably calculated to lead to the discovery of admissible evidence. As to each of the requests, other than Nos. 52 and 53, plaintiffs agreed to produce some documents, which they did produce.
Defendants make essentially the identical argument for requests Nos. 44, 46, 47, 48, and 49. First, they argue that because plaintiffs assert that they are the personal representatives of Irwin’s estate, that “allegation alone justifies obtaining all wills to confirm that Plaintiffs properly represent the Estate and Trust.” (Sep. Stmnt., p. 1, ll. 19-24.) The court finds this first argument disingenuous.
Plaintiffs have provided more than sufficient proof that they properly represent the estate and trust. Specifically, plaintiffs provided: (1) Letters Testamentary from the State of Minnesota, County of Hennepin, District Court, dated April 25, 2019, stating: “The above named decedent [Irwin] having been found dead on April 10, 2019, and Mark E. Jacobs and Trisha Blake, having been appointed and qualified, are hereby authorized to act as Personal Representatives according to law.”; (2) Letters Testamentary from the State of Minnesota District Court, dated July 13, 2020, confirming the same thing and also stating that Mark and Blake are “the only two nominees that remain qualified and willing to serve.”; and (3) An eight amendment and restatement of Irwin’s trust, dated May 10, 2018, which states that upon Irwin’s death, or during any period when he is incapacitated, he appoints Mark and Blake as co-trustees of “each trust created by this instrument.” (Granet Decl., ¶ 4 & Exh. B.)
Defendants have failed to meet their burden, with their first argument, of making a fact specific showing of relevance.
Defendants next argue that plaintiffs “contend that, prior to his death, Irwin Jacobs owned an interest in Defendant’s real estate . . . pursuant to a valid contract with Defendants. . . . Defendants dispute Plaintiffs’ position and assert that any such contract was terminated in 2001.” (Sep. Stmnt., p. 1, ll. 25-28.) Defendants argue that the requested documents may show whether Irwin “memorialized his alleged ownership interest in the Property after the termination of the contract,” and that documents such as wills and trusts usually memorialize property on various schedules. (Id., p. 1, l. 28 - p. 2., l. 5.) Defendants claim that just one trust document, from 2018, was produced by plaintiffs on this issue. Defendants argue that they “must obtain the full history memorializing any alleged interest in the Property, especially any failure to memorialize such an interest.” (Id. p. 2, ll. 14-16.)
“The state Constitution expressly grants Californians a right of privacy. [Citation.] Protection of informational privacy is the provision’s central concern. [Citation.] In [Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill)], we established a framework for evaluating potential invasions of privacy. The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious. [Citation.] The party seeking information may raise in response whatever legitimate and important countervailing interests disclosure serves, while the party seeking protection may identify feasible alternatives that serve the same interests or protective measures that would diminish the loss of privacy. A court must then balance these competing considerations.” (Williams, supra, 3 Cal.5th 531at p. 552.)
“The right to privacy under article I, section 1 of the California Constitution ‘extends to one’s confidential financial affairs ....’ [Citation.] This right embraces confidential financial information in ‘whatever form it takes, whether that form be tax returns, checks, statements, or other account information.’ [Citation.]” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503.) This is information that a reasonable person ordinarily protects from disclosure and is a serious threatened intrusion. (Williams, supra, 3 Cal.5th at p. 554.)
Defendants have again failed to meet their burden of making a fact specific showing of relevance that would overcome plaintiffs’, and others’, rights to privacy. The only reason that trusts are involved in this case at all is that plaintiffs were required to bring this action as representatives of Irwin and Alexandra because Irwin and Alexandra are deceased. The action should be no different now than if it were brought directly by Irwin and Alexandra. If that were the case, the estate planning documents would not even be arguably relevant to the issues presented here. To the extent that defendants are truly seeking information about whether the Eucalyptus Hill Drive property was included in documents other than those already produced by plaintiffs, or omitted from documents, there are other, and much less intrusive, ways of obtaining that information than requesting complete unredacted copies of Irwin and Alexandra’s estate planning documents.
The motion to compel further responses to RFP Nos. 44 and 46-49, will be denied. However, the court will order plaintiffs to provide a privilege log identifying any responsive estate planning document withheld, pursuant to Code of Civil Procedure section 2031.240, subdivision (c).
RFP Nos. 52 and 53 seek documents reflecting economic interests of Mark and Blake in the estates of Irwin and Alexandra. Defendants argue that this could show “bias.” Defendants’ argument is facially inadequate. “Bias” is usually a concept that arises in situations such as the bias of a juror. “Bias” of a party to a lawsuit is irrelevant. It would be a rare case indeed where a party was not biased towards their own position in the action. Plaintiffs’ financial interests in the estates is of no relevance and is not reasonably calculated to lead to admissible evidence. Despite the amount that is being sought, this is a simple case. Either defendants owe what is claimed, or a part of it, or they do not. Defendants are not entitled to invade plaintiffs’ private financial information based on the facts of this case.
The motion to compel further responses to RFP Nos. 52 and 53 will be denied.
- Interrogatories
Defendants seek to compel further responses to Special Interrogatories, set three, Nos. 46-52.
Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”
A party may respond to interrogatories, in writing and under oath, by (1) providing an answer containing the information sought, (2) exercising the option to produce writings, or (3) by objecting to the particular interrogatory. (Code Civ. Proc., section 2030.210 subd. (a).)
All of the SI’s in dispute relate to plaintiffs’ financial interests. As discussed in connection with the RFPs, plaintiffs’ financial interests are not relevant to this action, nor are the requests for plaintiffs’ financial interests reasonably calculated to lead to the discovery of admissible evidence.
The motion to compel further response to SI’s will be denied.