Mark Sellars, et al. v. Patrick Leahy, et al

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 02/21/2024 - 10:00

Nature of Proceedings

Defendant Channe Coles’ Motion for Issue, Evidentiary, and Monetary Sanctions against Plaintiffs Mark Sellars and Rebecca Morin

Tentative Ruling

For Plaintiffs Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy: David J. Tappeiner                            

For Defendants Channe Coles and The Law Office of Channe G. Coles: R. Chris Kroes

For Defendants Patricia Wollum and Susan Reynolds: Gabriella L. Sternfeld, David A. Napper, Gregory K. Sabo

For Defendant and Cross-Complainant Help Unlimited, Inc.: Brandt O. Caudill, Joan E. Trimble

For Defendant Patrick Leahy: Self-Represented

                                               

RULINGS

For the reasons set forth herein:

Defendant Channe Coles’ motion for issue, evidentiary, and monetary sanctions against Plaintiffs is granted in part and denied in part as follows:

1. Plaintiff Rebecca Morin shall provide a verified amended response to the request for production of documents, that removes the objection contained in response No. 9, no later than February 28, 2024.
2. Plaintiffs Mark Sellars and Rebecca Coles shall produce all responsive documents, in paper form unless Coles’ counsel stipulates to a different format, no later than March 6, 2024.
3. Coles’ request for issue, evidentiary, and monetary sanctions is denied.

Background

This action was commenced by the filing of a complaint on December 11, 2020, by Plaintiff Mark Sellars (Sellars), in which Sellars alleges he is the biological son of Rosemary Free Leahy (Rosemary) and the trustee of the Rosemary Free Trust u/d/t dated September 13, 2000. (Note: Due to common surnames and to avoid confusion, the Court will refer to Rosemary by her first name. No disrespect is intended.) The original complaint alleges two causes of action against Defendant Patrick Leahy (Leahy) for elder abuse and financial elder abuse of Rosemary. Leahy is Rosemary’s spouse.

Leahy, who is self-represented, filed an answer to the original complaint on January 5, 2021, generally denying certain allegations and admitting others and asserting ten affirmative defenses.

On January 23, 2023, the Court granted the motion of Sellars for leave to file a first amended complaint (FAC). Sellars filed the FAC on the same date. The FAC added named Plaintiffs Sellars as trustee of the trust and Rebecca Morin (Morin) who is Rosemary’s conservator, and named Defendants the Law Office of Channe G. Coles, Channe Coles (Coles) (collectively, the Coles Defendants), Patricia Wollum (Wollum), Susan Reynolds (Reynolds), and Help Unlimited. The FAC alleges five causes of action: (1) elder abuse (against all Defendants); (2) financial elder abuse (against all Defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all Defendants); and (5) negligence (against all Defendants).

On April 19, 2023, Help Unlimited filed a verified answer to the FAC and a cross-complaint against cross-Defendants Leahy and Honor Home Care Services California, Inc. (Honor), alleging causes of action for indemnity, contribution, and declaratory relief.

On April 20, 2023, the Coles Defendants filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On May 23, 2023, Plaintiffs filed a request for dismissal without prejudice of all claims and causes of action alleged against Help Unlimited.

On May 26, 2023, Help Unlimited filed a request for dismissal of its cross-complaint against Leahy and Honor, without prejudice.

Also on May 26, 2023, Plaintiffs filed an amendment to the FAC to substitute Honor for Help Unlimited wherever it appeared in the FAC.

On June 22, 2023, Wollum and Reynolds filed a demurrer to the FAC together with a motion to strike portions of the FAC.

On July 5, 2023, Plaintiffs filed responses to the demurrer and motion to strike of the Coles Defendants and the demurrer and motion to strike of Wollum and Reynolds, asserting that Plaintiffs have elected to amend the FAC and to amend a “Doe” amendment (which Plaintiffs contend was filed as a second amended complaint), by filing a third amended complaint to address the issues raised by the Coles Defendants, Wollum, and Reynolds’ respective demurrers and motions to strike.

On July 6, 2023, Plaintiffs filed a motion for leave to file a third amended complaint which Plaintiffs asserted was prepared in response to the demurrers and motions to strike discussed above. The motion was opposed by the Coles Defendants.

On July 11, 2023, Plaintiffs filed a request for dismissal of all causes of action against Honor, without prejudice.

On July 12, 2023, Wollum and Reynolds filed a notice requesting that the Court take their demurrer and motion to strike off-calendar.

On July 19, 2023, the Court continued the hearing on the pending demurrer to and motion to strike the FAC filed by the Coles Defendants to be heard together with Plaintiffs’ motion for leave to file a third amended complaint.

On July 26, 2023, Plaintiffs filed an amended motion for leave to file a third amended complaint.

On August 16, 2023, the Court ordered the motion of Plaintiffs for leave to file a third amended complaint off-calendar based on improper and untimely service of that motion. (See Aug. 16, 2023, Minute Order.)

In addition, because Plaintiffs attempted to file an amended complaint rather than a substantive opposition to the demurrer, the Court sustained the demurrer of the Coles Defendants to the first amended complaint based on the Court’s finding that Plaintiffs had implicitly acknowledged that the Coles Defendants’ demurrer had merit. The Court granted Plaintiffs leave to amend and ordered Plaintiffs to file and serve their second amended complaint no later than September 6, 2023. (See Aug. 16, 2023, Minute Order.

On September 7, 2023, Plaintiffs filed a motion for leave to file a second amended complaint to add Honor as a “Doe” Defendant.

Also on September 7, 2023, Plaintiffs filed a second amended complaint (SAC) adding Honor as a Defendant and alleging six causes of action: (1) elder abuse (against all Defendants); (2) financial elder abuse (against all Defendants); (3) legal malpractice (against the Coles Defendants); (4) intentional infliction of emotional distress (against all Defendants); and (5) negligence (against all Defendants).

On October 4, 2023, the Court granted Plaintiffs’ motion for leave to file the SAC.

Plaintiffs filed identical versions of the SAC on September 7, 2023, and October 10, 2023.

Plaintiffs filed the operative third amended complaint (TAC) on January 12, 2024, which added Honor back into the action and made other minor modifications.

The allegations of the TAC are set forth in 151 factually detailed paragraphs. Plaintiffs essentially allege that Defendants abused Rosemary financially and emotionally. Plaintiffs allege that Coles untruthfully represented that she was working for Rosemary when she was in fact working for Patrick against Rosemary’s interests.

On September 7, 2023, Coles served form interrogatories (set one) and a demand for production of documents (set one) upon Plaintiffs. Because Plaintiffs provided no responses to the discovery, despite assurances that they would, Coles filed a motion to compel which was granted on December 27, 2023. Plaintiffs were ordered to provide verified responses to the discovery, without objection, no later than January 10, 2024. Sanctions were awarded in the amount of $2,500 in favor of Coles.

On December 27, 2023, Coles’ counsel noticed that an envelope containing a flash drive was dropped through Coles’ counsel’s door mail slot. Coles’ counsel was unable to open any of the files that were contained on the flash drive. (Murillo Dec., ¶ 5 & Exh. 1.) On January 9, 2024, Plaintiffs’ counsel emailed Coles’ counsel with attachments from a website that did not work. (Murillo Dec., ¶ 6 & Exh. 2.) On January 16, 2024, an envelope was placed through the mail slot of Coles’ counsel which contained a flash drive that did not work. (Murillo Dec., ¶ 7 & Exh. 3.) Coles’ counsel has notified Plaintiffs’ counsel that they were unable to access any documents, but Plaintiffs’ counsel has never provided usable replacements or offered to produce paper copies. (Murillo Dec., ¶ 8.)

On February 14, 2024, the Court granted an application for order to show cause why Plaintiffs and Plaintiffs’ counsel should not be held in contempt for failure to comply with the Court’s December 27, 2023, order requiring Plaintiffs to provide verified responses to the demand for production of documents no later than January 10, 2024. The evidentiary hearing is scheduled for March 20, 2024.

On 2/16, 2024 Plaintiff dismissed the 2^nd cause of action for Financial Elder Abuse against Patricia Wollum and Susan Reynolds.

Coles now moves for issue, evidentiary, and monetary sanctions against Plaintiffs for failing to comply with the Court’s December 27, 2023 order. The motion was served, via e-mail, on January 22, 2024.

Plaintiffs late filed an opposition on February 16, 2024.

Amanda Lopez-Solis submitted a declaration along with a Reply to the Opposition to Motion for Issue and Evidentiary Sanctions filed on behalf of Channe Coles for the hearing on  February 21, 2024on 2/20/24 that the Court has read.

Analysis

If a party “fails to obey an order compelling further responses to interrogatories, the Court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., § 2030.300, subd. (e).)

If a party “fails to obey [an] order compelling a response [to a demand for production of documents], the Court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction.” (Code Civ. Proc., § 2031.300, subd. (c).)

One of the main deficiencies in Coles’ motion is that she generally seeks “issue and evidence sanctions.” She fails to provide adequate information regarding the parameters of her request. The record presented to the Court by Coles is incomplete and the Court does not have the information with which to craft an order granting Coles’ motion in a way that solely addresses the deficiencies in Plaintiffs’ responses. Coles did not even provide the Court with copies of the actual requests and the provided responses do not contain the text of the requests. The Court cannot, and will not, make a blanket order that Plaintiffs are prevented from attempting to prove any issues or introduce any evidence in support of any of their causes of action. However, the motion must be denied for other reasons as set forth below.

As noted above, the order compelling further, verified responses, was entered on December 27, 2023. (Kroes Dec., ¶ & Exh. A.) Thereafter, Rebecca Morin and Mark Sellars served verified supplemental responses to the requests for production of documents and things, set one. The attached proofs of service indicate that the responses were served on January 16, 2024. (Kroes Dec., Exh. B.) The Court does note that the responses were late and, in response to request No. 9, Rebecca Morin improperly asserts an objection in violation of the Court’s order. She will be ordered to serve an amended response and remove the objection.

Coles brings her motion pursuant to Code of Civil Procedure section 2023.010, subdivision (g) and Code of Civil Procedure section 2023.030, subdivisions (b) and (c). Failing to respond to formal written discovery is different than responding and then failing to provide the responsive documents. On December 27, 2023, Plaintiffs were ordered to provide verified responses to the discovery. They did so.

Coles’ motion would be more properly brought under Code of Civil Procedure section 2031.320, which provides:

“(a) If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party's statement of compliance, the demanding party may move for an order compelling compliance.

“(b) Except as provided in subdivision (d), the Court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with 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.

“(c) Except as provided in subdivision (d), if a party then fails to obey an order compelling inspection, copying, testing, or sampling, the Court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of or in addition to that sanction, the Court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

“(d)(1) Notwithstanding subdivisions (b) and (c), absent exceptional circumstances, the Court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system.

“(2) This subdivision shall not be construed to alter any obligation to preserve discoverable information.”

“No time limit is placed on such a motion.” (Standon Co. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

Plaintiffs have agreed to produce nearly every category of document requested. Coles argues that they have failed to produce the documents while Plaintiffs argue that they have provided responsive documents. Because there have apparently been significant issues accessing the information in digital format, Plaintiffs will be ordered to produce the documents in paper form. However, for the reasons discussed above, no issue or evidence sanctions will be ordered at this time.

No monetary sanctions will be awarded because Plaintiffs substantially complied with the Court order by providing verified responses to the discovery.