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

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 06/12/2024 - 10:00

Nature of Proceedings

1) Motion for Protective Order & Req for Sanctions; 2) Motion to Quash Depo Subpoena for Prod of Business Records; 3) Motion to to Quash Depo, for Protective Order, and for Sanctions; 4) Motion for Terminating Sanctions and Monetary Sanctions

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 Honor Home Care Services California, Inc.: Marilyn R. Victor, Ashton L. McKinnon

For Defendant Patrick Leahy: Self-Represented

                                               

RULINGS

For the reasons set forth herein:

1. Plaintiffs’ Motion for Protective Order is denied.
2. Plaintiffs’ Motion to Quash Deposition Subpoena for Production of Business Records of DT Law Partners, LLP is granted.
3. Defendant Channe Coles’ Motion to Quash Deposition and for Protective Order is denied.
4. Defendants’ Motion for Terminating Sanctions is Denied.
5. No monetary sanctions shall be awarded in favor of any party.
6. The Channe Coles deposition will take place on _____________2024; the time estimate for taking the deposition is ____________________.
7. The final CMC date of 9/18/24, the MSC date of 1/3/25, and the TCC Date of 1/29/25 are confirmed. Do not stipulate to continue them. This case was filed in 12/2020 and it is very unlikely the Court will continue any of those dates. There are experienced and hard working lawyers in this case and the Court does not want to be misunderstood about the Court’s position relating to keeping the dates. Be forewarned and be prepared.

Background

This action was commenced by the filing of the original 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 alleged 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, 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 alleged 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 improperly 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 should have been a motion for leave to file a second 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 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.

As the result of a demurrer and motion to strike heard on December 20, 2023, Plaintiffs were given the opportunity to file and serve a third amended complaint (TAC). Plaintiffs filed the operative TAC on January 12, 2024, which added Honor back into the action and made other minor modifications.

On May 1, 2024, the Court granted a motion to quash service of summons as to Honor.

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.

There have been several discovery disputes in this action. The four motions before the Court are essentially continuations of the ongoing disputes.

Analysis

As an initial matter: the Coles Defendants object to Plaintiffs’ late filed declarations and exhibits, which were filed on June 6, 2024. On May 24, 2024, the Court granted Plaintiffs’ ex parte application re discovery motions. In so doing, the Court set the current hearing date for all four motions and ordered that Plaintiffs and the Coles Defendants may supplement any existing discovery motions on file no later than May 28, 2024, and any opposition to the supplements by June 6, 2024. The Coles Defendants did not file any supplements to their motions and, therefore, Plaintiffs newly filed documents cannot be considered oppositions to supplemental briefing or replies to oppositions. What Plaintiffs filed could only be properly characterized as supplemental briefing for their own motions. As such they are late. Plaintiffs have been given ample time and several extensions to brief the issues. The Court will not consider the late-filed documents albeit the Court has read them. The Court does note that even if it had considered the late-filed documents, they would have no effect on the Court’s ruling.

1. Plaintiffs’ Motion for Protective Order and Request for Sanctions

Plaintiffs move for a protective order as to the Coles Defendants on the grounds that “the discovery practices of [the Coles Defendants] have and continue to be burdensome, oppressive, propounded in bad faith to harass Plaintiffs, incoherent and/or vague, cumulative, of limited or no relevance, and designed solely or at least primarily so as to cause ‘ . . . undue burden and expense.’ CCP § 2023.010 (c).” (Notice of Motion, p. 2, ll. 1-7.) The motion appears to be directed at the Coles Defendants’ requests for production of documents and third-party subpoena to DT Law Partners, LLP, although it does not specifically say as much.

The Coles Defendants oppose the motion and request sanctions against Plaintiffs. The Court notes that while some of the opposition directly addresses the motion for protective order, most of it addresses what the Coles consider deficient responses to their requests for production of documents. The opposition is largely duplicative of the Coles Defendants’ motion for terminating sanctions and their opposition to Plaintiffs’ motion to quash deposition subpoena for production of documents to DT Law Partners, LLP.

Code of Civil Procedure section 2023.010, subdivision (c) includes, as a misuse of the discovery process: “Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.”

Code of Civil Procedure section 2031.060 provides, in pertinent part:

“(a) When an inspection, copying, testing, or sampling of documents, tangible things, places, or electronically stored information has been demanded, the party to whom the demand has been directed, and any other party or affected person, may promptly move for a protective order. This motion shall be accompanied by a meet and confer declaration under Section 2016.040.

“(b) The Court, for good cause shown, may make any order that justice requires to protect any party or other person from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions:

“(1) That all or some of the items or categories of items in the demand need not be produced or made available at all.

“(2) That the time specified in Section 2031.260 to respond to the set of demands, or to a particular item or category in the set, be extended.

“(3) That the place of production be other than that specified in the demand.

“(4) That the inspection, copying, testing, or sampling be made only on specified terms and conditions.

“(5) That a trade secret or other confidential research, development, or commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.

“(6) That the items produced be sealed and thereafter opened only on order of the Court.”

“A party seeking the protective order must show by a preponderance of the evidence that the issuance of a protective order is proper.” (Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.)

By way of the motion, Plaintiffs set forth the discovery that has been propounded by the Coles Defendants and responses thereto, including: (1) A deposition subpoena for production of business records served on DT Law Partners, LLP on April 1, 2024; (2) 17 requests for production of documents and things, set one, on Morin, and 12 requests for production of documents and things, set one, on Sellars, on September 7, 2023; (3) On December 18, 2023, Plaintiffs responded to the requests for production and, on January 16, 2024, Plaintiffs served amended and supplemental responses; (4) Beginning on January 16, 2024, Plaintiffs began uploading and sharing further responsive documents on a file sharing service; (5) Counsel for the Coles Defendants, and other employees of his firm, were invited as collaborators on the file sharing service on January 17, 2024, and February 3, 2024, respectively, and accepted the same day; (6) On February 5, 2024, a paralegal at the law firm representing the Coles Defendants sent an email to Plaintiffs’ counsel claiming she was unable to access the documents that had been uploaded to the file sharing service, so Plaintiffs’ counsel called the paralegal on February 6, 2024, in an attempt to determine why she could not access the documents; and (7) Plaintiffs’ counsel sent the paralegal a “share link” and the paralegal confirmed that the share link worked to access the files.

Plaintiffs claim that by the end of January 2024, approximately 5,000 documents had been uploaded to the file sharing service and were shared with all counsel. Plaintiffs further claim that the only documents not provided at that time were Plaintiffs’ counsel’s requested communications from mid-2021, through September 2023, because Plaintiffs’ counsel had been unable to obtain those communications from his prior law firm, DT Law Partners, LLP. Plaintiffs represent that they were able to obtain the emails for the relevant period and uploaded them to the file sharing service, as a supplemental document production, on April 5, 2024. The documents were not only uploaded to the file sharing service, but were also shared through Google Drive. Finally, even though the Coles Defendants’ counsel claims to be unable to access the documents electronically, the documents were delivered to his office on April 5, 2024.

Plaintiffs argue that “most of the documents [the Coles Defendants have] requested are irrelevant to the claims against his clients.” In any event, at the March 28, 2024, contempt hearing, Plaintiffs’ counsel testified that he would have access to and be able to provide relevant email correspondence in “about a week.” The supplemental production was provided on April 5, 2024.

Plaintiffs’ entire legal argument in support of the motion is:

“A protective order may be granted on the Court’s determination that justice so requires such order. The motion is directed to the Court’s inherent power to control the proceedings before it. The granting or denial of relief therefore lies within the sound discretion of the law and motion judge, and is reviewable only for abuse. Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-4 [8:1019], Greyhound Corp. v. Sup.Ct. (Clay) (1961) 56 C2d355, 379-381. Even If the information sought is “ ‘relevant to the subject matter,’ ” that does not preclude relief. A Court may make any order that justice requires to protect a party or other natural person from “ 'unwarranted annoyance, embarrassment, or oppression or undue burden and expense.’ ”

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-4 [8:1008].” (Motion, p. 6, l. 18 - p. 7, l. 3.)

There is no application to the facts of this case or any showing of why the Coles Defendants’ discovery requests result in “'unwarranted annoyance, embarrassment, or oppression or undue burden and expense.” The moving papers also do not give any indication of the parameters of any requested protective order. It appears that Plaintiffs are requesting a blanket protective order that they not be required to respond to any more discovery in this case. Such a request is facially improper.

Additionally, to the extent that Plaintiffs are seeking a protective order related to the requests for production that were previously propounded, the motion is untimely as to those requests pursuant to Code of Civil Procedure section 2031.300 (a).

Finally, Plaintiffs failed to satisfy the requirement of providing a meet and confer declaration. “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.)

Plaintiffs have failed to meet their burden of showing why a protective order is necessary. The motion will be denied. Plaintiffs and the Coles Defendants seek sanctions. The sanctions requests will be addressed below.

2. Plaintiffs’ Motion to Quash Deposition Subpoena for Production of Business Records of DT Law Partners, LLP

Plaintiffs move to quash a deposition subpoena for production of business records of DT Law Partners, LLP. The motion purports to be served with the declaration of Plaintiffs’ counsel. There is no declaration of Plaintiffs’ counsel that was served with the motion. The motion also alludes to “Exhibit A,” which is claimed to be a copy of the subpoena. There is not an Exhibit A either attached to the motion or separately filed. The motion also references Exhibits B, C, D, E, and F, none of which are attached or filed with the Court.

The Coles Defendants oppose the motion and point out several procedural deficiencies in the motion. While the Coles Defendants are correct that there are some procedural issues with the motion, the Court will not deny the motion on procedural grounds. Plaintiffs’ counsel is reminded of his obligation to comply with all procedural requirements and Rules of Court in any future filings with the Court.

The Coles Defendants further oppose the motion with arguments that Plaintiffs continue in their refusal to comply with their discovery obligations.

Plaintiffs represent, in the body of the motion, that the subpoena seeks:

“THE RECORDS REQUESTED ARE regardless of date FOR THE FOLLOWING TYPES OF RECORDS: ANY AND ALL RECORDS, DOCUMENTS, REPORTS, FILES, E-MAILS, LETTERS, PLEADINGS, AND COMMUNICAION TO/FROM DAVID TRAPPEINER [SIC], ESQ. AND ANY THIRD PARTY, AS PER THE FEBRUARY 21, 2024 COURT ORDER, INCLUDING BUT NOT LIMITED TO ANY RECORDS/DOCUMENTS THAT MAY BE STORED DIGITALLY AND/OR ELECTRONICALLY RELATING TO SELLARS VS. COLES, DOB: SS#:.” (Motion, p. 3, ll. 12-16.)

The Coles Defendants do not dispute that this is what the subpoena seeks.

Plaintiffs argue: (1) The description of the records requested is vague and ambiguous; (2) The service of the Subpoena is a continuation of Plaintiffs’ counsels’ abuse of the discovery process; (3) The request is unnecessary, burdensome, and oppressive; and (4) The records requested have been produced by Plaintiffs in response to the Coles Defendants’ prior requests for production of documents, which have been responded to in full.

The majority of Plaintiffs’ motion is a recitation of the state of discovery in this matter and Plaintiffs’ claims against the Coles Defendants. Of the “legal argument” presented in the motion, putting aside unsupported conclusory assertions of issues such as abuse of the discovery process, Plaintiffs argue that the requested documents are inadequately described and that the subpoena seeks irrelevant or otherwise inadmissible evidence.

“A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item, and shall specify the form in which any electronically stored information is to be produced, if a particular form is desired.” (Code Civ. Proc., § 2020.410, subd. (a).)

“The requirement the demanding party “ ‘reasonably particularize each category of item’ ” reinforces such a reading. The “ ‘reasonably’ ” in the statute implies a requirement such categories be reasonably particularized from the standpoint of the party who is subjected to the burden of producing the materials. Any other interpretation places too great a burden on the party on whom the demand is made.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 222.)

“[P]articularly when dealing with an entity which is not even a party to the litigation, the Court should attempt to structure discovery in a manner which is least burdensome to such an entity.” (Ibid.)

The Court agrees with Plaintiffs that the description of the documents sought is inadequate. There are essentially no descriptions of documents or categories of documents. The request appears to ask for any document, in any format, that Plaintiff’s counsel was involved in in any way. Additionally, the language refers to the February 21, 2024, Court order. The February 21, 2024 Court Order granted in part, and denied in part, the Coles Defendants motion for issue, evidentiary, and monetary sanctions against Plaintiffs. The order made is a 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.”

No specific documents were ordered to be produced. Plaintiffs were ordered to produce documents in paper form due to the Coles Defendants’ claims that they were unable to access the documents in digital format. DT Law Partners, LLP would not know what specific documents the Coles Defendants were requesting. Putting the challenged subpoena language in this context, it simply makes no sense.

Further, the way that the subpoena is worded could potentially implicate the attorney-client privilege to persons that are not parties to this action. The request calls for “any and all records” to or from Plaintiffs’ counsel and “any third party.” Facially, such a request is unquestionably improper. The motion to quash the deposition subpoena for production of business records from DT Law Partners, LLP will be granted.

3. Defendant Channe Coles’ Motion to Quash Deposition, for Protective Order, and for Sanctions

Coles moves for an order that: (1) The deposition of Coles be quashed until such time as Plaintiffs have complied with the Court’s February 21, 2024, order to product documents; (2) For a protective order that Coles need not respond to discovery propounded until Plaintiffs comply with the February 21, 2024, order; and (3) For an award of monetary sanctions.

The basis for Coles’ motion is: “The documents which are the subject of the Court orders are needed for the preparation of Ms. Coles for her deposition; a fact which is well known to the Plaintiff. The setting of the deposition of Ms. Coles therefore is harassing and overly burdensome until there is compliance with the Court’s order.” (Motion, p. 3, ll. 6-9.)

Other than claiming that allowing Plaintiff to conduct discovery, without having complied with the Court’s prior discovery orders, is unfair, and that the Court has discretion in controlling the course of discovery, Coles sets forth no persuasive argument or authority for her motion.

Although the motion is unopposed, Coles did not meet her initial burden of showing that she should not be required to give deposition testimony or that a protective order is proper. As with the Coles Defendants’ other motion, as well as their oppositions to Plaintiffs’ motions, Coles focuses almost entirely on her claims that Plaintiffs have continued in their refusal to comply with discovery orders and produce documents.

Coles motion will be denied, and she will be ordered to appear for a properly noticed deposition. A protective order will not be issued.

4. Defendants Channe Coles and The Law Offices of Channe G. Coles’ Motion for Terminating Sanctions and Monetary Sanctions

The Coles Defendants move for terminating sanctions and monetary sanctions, arguing that Plaintiffs have twice refused to comply with the Court’s order to produce documents.

Pursuant to Code of Civil Procedure section 2031.310(i), if a party fails to obey an order compelling further responses, the Court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction, and may also impose a monetary sanction either in lieu of or in addition to that sanction. The Court has broad discretion in selecting the appropriate penalty. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377, 390.) Enhanced (non-monetary) sanctions are also largely available only when the failure to comply with the Court order was willful. (See, e.g., Biles v. Exxon Mobil Corporation (2004) 124 Cal.App.4th 1315, 1327.) Further, the Court’s discretion must be exercised in a manner consistent with the basic purposes of such sanctions, e.g., to compel disclosure of discoverable information. (Marriage of Economou (1990) 224 Cal.App.3d 1466, 1475.) Sanctions may also not be imposed solely to punish the offending party. (McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 214.)

The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination. (Doppes v. Bendley Motors, Inc. (2009) 174 Cal.App.4th 967, 991.) A terminating sanction should generally not be imposed until the Court has attempted less severe alternatives and found them to be unsuccessful, and the record clearly shows lesser sanctions would be ineffective. (Lopez v. Watchtower Bible and Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604–605.)

The Coles Defendants make several claims in their motion, including:

1. With respect to Morin: There is not a single communication produced from 2023 or 2024, and only about a half dozen communications from 2022; (2) Morin failed to provide any response to request for production No. 10; (3) Sellars provided no responses to requests for production Nos. 5, 11, or 12; (4) Sellars did not provide any communications from 2023 or 2024, and only about a half-dozen communications from 2022; (5) Documents were redacted; and (6) Only parts of some documents were produced.

In opposition, Plaintiffs argue: “Plaintiffs have complied with the Court’s order. The Coles Defendants have received complete and straightforward supplemental responses (without objection) to her requests for production.” (Opposition, p. 10, ll. 20-23.) Plaintiffs also argue that the Coles Defendants have been disingenuous regarding their claims of not being able to access the documents that were uploaded to the file sharing service.

The Court is in the same position as it was on February 21, 2024, when the Court ordered Plaintiffs to produce all responses in paper form but declined to impose issue, evidentiary, or monetary sanctions. There is insufficient evidence to support terminating sanctions. Even if the Coles Defendants’ representations are the correct statement of what has been produced, and what has not, terminating sanctions (as the ultimate sanction) would not be imposed at this point.

The motion for terminating sanctions will be denied. Plaintiffs are, however, reminded of their obligation to fully comply with the Court’s orders if they have not already done so.

5. Monetary Sanctions

Neither Plaintiffs nor the Coles Defendants have been fully successful regarding these discovery motions and the Court does not find either side blameless in the disputes. The circumstances of these ongoing discovery disputes would make the imposition of monetary sanctions, at this time, unjust. As such, no monetary sanctions shall be awarded in favor of or against any party.

The Court reminds the parties:

“Civil discovery is intended to operate with a minimum of judicial intervention. “ ‘[I]t is a ‘ “central precept” ’ of the Civil Discovery Act . . . that discovery ‘be essentially self-executing[.]” ’ ” [Citations.]” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 402.)

There have been very serious allegations levied by and against the attorneys involved in these discovery matters. While the Court makes no determination as to the veracity of the attorneys’ claims, counsel are reminded of their obligation to strictly adhere to the Rules of Professional Conduct, including Rule 3.3.

Counsel shall meet and confer prior to the hearing on this matter and agree on the date for the Coles deposition; the discussion will include a realistic assessment of how much time will be needed for the deposition; be prepared to share that information so it can be included in the Court’s order.

Should the parties continue to engage in discovery disputes, and fail to resolve their issues, the Court will appoint R.A. Carrington or Judge Elinor Reiner [ret.] as the discovery referee, at the expense of the parties.

The Court does not intend to continue the dates now set for a resolution of the case.