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

Case Number

20CV04132

Case Type

Hearing Date / Time

Wed, 06/18/2025 - 10:00

Nature of Proceedings

Motions to Compel (2)

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, Jason P. Koch 

                                   

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

For Defendant Honor Home Care Services California, Inc.: Marilyn R. Victor, Kevin I. Kilroy

RULING

For the reasons set forth herein, Defendant, Honor Home Care Services California, Inc.’s motions to compel Mark Sellars and Rebecca Morin to respond to the requests for prior pleadings and discovery is granted as follows:

1. No later than July 2, 2025, Mark Sellars and Rebecca Morin shall serve Honor Home Care Services California, Inc., with:
   1. Copies of all pleadings filed and served in this case that were not previously served on Honor Home Care Services California, Inc.
   2. Copies of all interrogatories and responses to interrogatories not previously served on Honor Home Care Services California, Inc.
   3. Copies of all requests for production of documents and things and responses to requests for production of documents and things not previously served on Honor Home Care Services California, Inc.
   4. Copies of all requests for admissions and responses to requests for admission not previously served on Honor Home Care Services California, Inc., and
   5. Copies of all deposition notices and subpoenas not previously served on Honor Home Care Services California, Inc.
2. Sanctions are awarded in favor of Defendant, Honor Home Care Services California, Inc., and against Plaintiff Mark Sellars, individually and as Trustee of the Rosemary Free Trust u/d/t dated September 13, 2000, and his attorney of record, in the amount of $720.00, payable no later than July 25, 2025.
3. Sanctions are awarded in favor of Defendant, Honor Home Care Services California, Inc., and against Plaintiff Rebecca Morin, Conservator of the Estate and Person of Rosemary Free Leahy, and her attorney of record, in the amount of $720.00, payable no later than July 25, 2025.
4. The MSC of 7/25/25 and the trial date of 8/20/25 are confirmed.

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.

The procedural history, and progression of the state of the pleadings in this action, is convoluted. To summarize:

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 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 January 23, 2025, Honor served the parties with a request for prior pleadings and discovery. (Poerstel Decl., ¶ 2 & Exh. A.) On February 3, 2025, Honor’s counsel sent an email to Plaintiffs’ counsel requesting records in connection with Plaintiffs’ depositions, but Plaintiffs’ counsel did not respond. (Poerstel Decl., ¶ 3 & Exh. B.) On March 14, 2025, Honor’s counsel spoke with Plaintiffs’ counsel, on the phone, and again requested copies of their prior pleadings, discovery, and the documents produced at Plaintiffs’ depositions. (Poerstel Decl., ¶ 4.) On March 19, 2025, Honor’s counsel again emailed Plaintiffs’ counsel and requested copies of their prior pleadings, discovery, and the documents produced at Plaintiffs’ depositions, but no response was provided. (Poerstel Decl., ¶ 5 & Exh. C.)

Honor now moves to compel compliance with the requests for prior pleadings, discovery, and documents produced at Plaintiffs’ depositions. Honor also seeks monetary sanctions.

Plaintiffs have filed no opposition, or other response, to the motions.

Analysis

As the motions are in all material respects identical, the motions will be discussed as one motion.

“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, may not use its discretion to extend the limits on discovery beyond those authorized by the Legislature, and should prefer partial to outright denials of discovery.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

“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.)

As noted above, on January 23, 2025, Honor served the parties with a request for prior pleadings and discovery. By way of the requests served on the parties, Honor seeks: (1) Copies of all pleadings filed and served in this case that were not previously served on Honor Home Care Services California, Inc.; (2) Copies of all interrogatories and responses to interrogatories not previously served on Honor Home Care Services California, Inc.; (3) Copies of all requests for production of documents and things and responses to requests for production of documents and things not previously served on Honor Home Care Services California, Inc.; (4) Copies of all requests for admissions and responses to requests for admission not previously served on Honor Home Care Services California, Inc.; and (5) Copies of all deposition notices and subpoenas not previously served on Honor Home Care Services California, Inc.

As Honor was simply requesting documents that had not been previously served on it, the requested documents are discoverable. Plaintiffs are required to respond. They did not do so. Honor, even though not required to do so, attempted to resolve the discovery issues short of filing the present motion. The meet-and-confer efforts were apparently ignored.

Plaintiffs’ failure to oppose the motions is an implicit admission that Honor’s motions have merit. Plaintiff’s will be ordered to properly respond to the requests.

Sanctions

“The Court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The Court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the Court shall impose that sanction 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.” (Code Civ. Proc., § 2023.030, subd. (a).)

“Misuses of the discovery process include . . .(d) failing to respond or to submit to an authorized method of discovery, (e) making, without substantial justification, an unmeritorious objection to discovery, (f) making an evasive response to discovery . . . (h) making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery, (i) failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.” (Code Civ. Proc., 2023.010, subds. (d), (e), (f), (h), & (i).)

Plaintiffs’ failure to respond to the requests is without justification and monetary sanctions will be imposed.
 

Here, Honor’s counsel declares:

“My hourly rate for this matter is $220.00 per hour. I spent a total of six (6) hours preparing motions to compel against both Plaintiffs, including preparation of this Declaration and the documents and exhibits accompanying the motions. The filing fee imposed by the Court for the filing of this motion is $60.00 per motion, for a total of $120.00 (one as to each Plaintiff in this matter). I expect to spend an additional three (3) hours preparing for and attending the hearing on this motion, including the preparation of a Reply to Plaintiffs' Oppositions to this motion, to the extent the motions are opposed. My client thus has, and is anticipated to, spend $2,100.00 due to the necessity of this instant motion. $1,050.00, half of that total amount, is being sought against Plaintiff Mark Sellars and his counsel of record. $1,050.00, the other half of the total amount, is being sought against Plaintiff Rebecca Morin and her counsel of record by way of a motion to compel, filed concurrently herewith, made on the very same grounds.”

As the motion is unopposed, Honor will not be awarded sanctions for the anticipated three hours to prepare a reply and attend the hearing. The amount of sanctions shall be six hours, at $220.00 per hour, and filing fees of $120.00. The total amount of $1,440.00 will be imposed as $720.00 per Plaintiff.