Mystica Fleury vs Byron Richard Tarnutzer et al

Case Number

22CV02886

Case Type

Hearing Date / Time

Fri, 03/28/2025 - 10:00

Nature of Proceedings

CMC; Protective Order; Bifurcation

Tentative Ruling

(1) For all reasons discussed herein, the motion of defendants for a protective order is denied, without prejudice.

(2) For all reasons discussed herein, the abeyance of the Court’s November 15, 2024, Minute Order as to defendants’ service of further responses to plaintiffs’ discovery requests is lifted. On or before April 11, 2025, defendants Byron Richard Tarnutzer and Vonna Carol Tarnutzer shall, in accordance with the Court’s November 15, 2024, Minute Order and this ruling, serve verified, code-compliant, further responses to the discovery requests identified and described in the November 15, 2024, Minute Order and herein, without the objections overruled in the November 15, 2024, Minute Order except as to those based on privilege.

(3) For all reasons discussed herein, the Court awards sanctions in favor of plaintiff Mystica Fleury and against defendants Byron Richard Tarnutzer and Vonna Carol Tarnutzer and their counsel, in the amount of $ $2,475, payable to plaintiff’s counsel. Payment of sanctions is due by April 28, 2025.

(4) For all reasons discussed herein, the motion of plaintiff to sever or bifurcate the “loan agreement” 8th and 9th causes of action is denied.

Background:

On July 26, 2022, plaintiff Mystica Fleury (Fleury) filed an original complaint in this action against defendants Byron Richard Tarnutzer aka Rick Tarnutzer (Rick), Vonna Carol Tarnutzer (Vonna), and American Interior (collectively, defendants), alleging nine causes of action: (1) breach of contract (against all defendants); (2) breach of the covenant of good faith and fair dealing (against all defendants); (3) violation of Business and Professions Code section 7000 et seq. (the Contractors State License Law) (against all defendants); (4) negligence – construction defect (against all defendants); (5) fraud (against all defendants); (6) unlawful, unfair, or fraudulent business practices (against all defendants); (7) recission and restitution (against all defendants); (8) accounting (against all defendants); and (9) recission of loan agreements and restitution (against Rick only). (Note: To avoid confusion due to common surnames, the Court will at times refer to the individual defendants by their first names. No disrespect is intended.)

On January 23, 2023, ostensibly in response to a demurrer and motion to strike filed by the Tarnutzers on October 10, 2022, Fleury filed a first amended complaint (the FAC) alleging nine causes of action: (1) breach of contract - services (against all defendants); (2) breach of the covenant of good faith and fair dealing – services (against defendants); (3) violation of the Contractors State License Law (against all defendants); (4) negligence – construction defect (against all defendants); (5) concealment (against all defendants); (6) unlawful, unfair, or fraudulent business practices (against all defendants); (7) accounting (against all defendants); (8) breach of contract – loan agreement (against Rick only); and (9) false promise – loan agreement (against all defendants).

On August 24, 2023, with leave of court pursuant to a stipulation between Fleury and the Tarnutzers, Fleury filed a second amended complaint (the SAC) alleging nine causes of action: (1) breach of contract - services (against all defendants); (2) breach of the covenant of good faith and fair dealing – services (against all defendants); (3) violation of the Contractors State License Law (against all defendants); (4) negligence – construction defect (against all defendants); (5) concealment/fraud (against all defendants); (6) unlawful, unfair, or fraudulent business practices (against all defendants); (7) accounting (against all defendants); (8) breach of contract – loan agreement (against Rick only); and (9) false promise – loan agreement (against Rick only). As alleged in the operative SAC:

In May 2020, Rick contacted Fleury with a plan for Fleury to purchase real property located at 546 Owen Road in Santa Barbara, California (the property), which is next door to Rick. (SAC, ¶¶ 2, 10.) Though the property was rundown, Rick assured Fleury that he had a crew that would be able to remodel the property quickly and efficiently. (Id. at ¶ 10.) Rick also told Fleury that he and Vonna, doing business as American Interiors, have remodeled many homes, that Rick is an experienced builder, and that Rick would manage the project which would not require permits. (Id. at ¶ 4 & 10.) Rick also coached Fleury to tell anyone who asked that Fleury was an owner/builder. (Id. at ¶ 10.)

Fleury purchased the property on November 24, 2020, and entered into an oral agreement with defendants (the agreement) under which defendants agreed to perform design and construction work at the property with an estimated completion date in June 2021. (SAC, ¶ 11.) The work to be performed by defendants required a general contractor’s license which, unknown to Fleury, defendants did not have. (Ibid.)

Fleury agreed to reimburse defendants for the cost of the work with the understanding that defendants would not charge a fee for acting as general contractor. (SAC, ¶ 11.) Fleury requested a total price for the work performed from defendants, which defendants failed to provide. (Ibid.) The agreement also provided that the work would be up to code, timely performed to meet the estimated completion date, and photographed to prove that it was performed according to code. (Ibid.)

On February 24, 2022, Fleury was informed by a subcontractor that defendants had not paid that subcontractor for its work. (SAC, ¶ 14.) When Fleury attempted to question the subcontractor, the subcontractor told Fleury that Vonna had instructed him not to speak to Fleury about money. (Ibid.)

On March 9, 2022, Fleury asked Rick to provide photos of the project which defendants failed to provide. (SAC, ¶ 15.) Fleury was to meet with Vonna on March 12, 2022, to review defendants’ invoicing, but that meeting never took place. (Id. at ¶ 16.) On that same date, Fleury asked a subcontractor for copies of receipts and invoices submitted to defendants, and was told by the subcontractor that Vonna had instructed all subcontractors not to speak with Fleury about money. (Id. at ¶ 17.) Though Vonna promised to provide backup documentation for the project including invoices and proof of payments made by defendants, defendants failed to provide Fleury with any backup documentation. (Id. at ¶ 21.) 

On March 17, 2022, Fleury showed a subcontractor on the job a summary of defendants’ billing rates for hourly workers at the project which Fleury had received from defendants. (SAC, ¶ 18.) That subcontractor told Fleury that, except for himself, other workers on the job were not being paid at the rates reflected in the summary. (Ibid.) Fleury believes that defendants charged her a fee for acting as general contractor, and failed to pay subcontractors despite Fleury having paid defendants for the subcontracted work. (Id. at ¶ 22.)

Fleury paid approximately $1,492,066.09 to the defendants for the project, which is not complete. (SAC, ¶ 25.) Defendants did not disclose to Fleury that they did not have a valid contractor’s license, failed to obtain necessary permits, improperly charged Fleury a fee for acting as a general contractor, and charged Fleury on a time and material basis. (Id. at ¶ 24(c)-(d), 46 & 48-49.) The project was also left in a defective condition. (Id. at ¶¶ 24(e) & 41-42.) Defendants refused to provide a complete accounting of income and expenses on the project as requested by Fleury. (Id. at ¶ 61.)

In addition, in March 2021, Rick suggested to Fleury that he had an investment opportunity, requested that Fleury loan him money, and stated that any interest Fleury earned would be “tax free”. (SAC, ¶ 65.) On March 15, 2021, Fleury agreed to lend Rick the sum of $1,250,000 at an interest rate of five percent per annum. (Id. at ¶ 66.) On May 6, 2021, Fleury agreed to lend to Rick an additional sum of $500,000, at the same interest rate. (Id. at ¶ 67.) On that same date, Rick executed a promissory note in favor of Fleury in the sum of $1,750,000 at the same interest rate, with a maturity date of June 30, 2024. (Id. at ¶ 68 & Exh. 1.) Rick failed to pay installments due under the terms of the promissory note. (Id. at ¶¶ 70 & 79.)

On February 2, 2024, the Court entered an order staying this action until July 26, 2026, or upon further order of the Court. (See Feb. 7, 2024, Order Granting Stay.) The stay was vacated pursuant to the Court’s order entered on August 23, 2024.

On August 28, 2024, the Court issued notice that six discovery motions filed by Fleury on October 30, 2023, were rescheduled to November 15, 2024: (1) a motion for an order compelling Rick to provide further responses, without objection, to Fleury’s first set of requests for production of documents (the Rick RFP); (2) a motion for an order compelling Rick to provide further responses, without objection, to Fleury’s first set of requests for admission (the Rick RFA); (3) a motion for an order compelling Rick to provide further responses, without objection, to Fleury’s first set of form interrogatories (the Rick FI); (4) a motion for an order compelling Rick to provide further responses, without objection, to Fleury’s first set of specially prepared interrogatories (the Rick SI); (5) a motion for an order compelling Vonna to provide further responses, without objection, to Fleury’s first set of requests for admission (the Vonna RFA); and (6) a motion for an order compelling Vonna to provide further responses, without objection, to Fleury’s first set of form interrogatories (the Vonna FI).

On August 29, 2024, Rick and Vonna filed an answer to the SAC, generally denying its allegations and asserting twenty-two affirmative defenses.

On November 15, 2024, the Court entered a Minute Order (the November Minute Order) granting each of the six discovery motions filed by Fleury on October 30, 2023, and described above, and ordering Rick and Vonna to, on or before December 6, 2024, each serve code compliant, verified further responses to the discovery requests identified in the November Minute Order and above. The Court held the November Minute Order as to the service of further discovery responses by the Tarnutzers only, in abeyance to the extent the Tarnutzers filed a procedurally appropriate motion for a protective order prior to the deadline for serving the further responses.

On December 6, 2024, the Tarnutzers filed a motion for a protective order pursuant to Code of Civil Procedure sections 2030.090, 2031.060, and 2033.080 (the protective order motion). As grounds for the protective order motion, the Tarnutzers contend that compelling them to respond to discovery in this proceeding, including the discovery identified in the November Minute Order, would violate their privilege against self-incrimination. The protective order motion is opposed by Fleury.

On March 6, 2025, Fleury filed a motion for an order (the Fleury motion) to bifurcate or sever the eighth and ninth causes of action, which Fleury refers to as the “loan agreement” causes of action, from the first through seventh causes of action alleged in the SAC, which Fleury refers to as the “remodel” causes of action. The Fleury motion is opposed by the Tarnutzers.

Analysis:

(1) The Protective Order Motion

A party responding to interrogatories, inspection demands, or requests for admission may “promptly” move for a protective order which must be accompanied by a meet and confer declaration under Code of Civil Procedure section 2016.040. (Code Civ. Proc., §§ 2030.090, subd. (a), 2031.060, subd. (a), & 2033.080, subd. (a).) (Note: Undesignated statutory references herein shall be to the Code of Civil Procedure unless otherwise stated.) The protective order may include that the discovery requests at issue “need not be answered”, that items or categories of items in an inspection demand “need not be produced or made available at all”, or that a response to discovery or inspection “be made only on specified terms and conditions.” (Code Civ. Proc., §§ 2030.090, subd. (b)(1) & (4), 2031.060, subd. (b)(1) & (4), & 2033.080, subd. (b)(1).) For good cause shown, the court may also “make any order that justice requires” to protect the responding party “from unwarranted annoyance, embarrassment, oppression, or undue burden and expense.” (Code Civ. Proc., §§ 2030.090, subd. (b), 2031.060, subd. (b), & 2033.080, subd. (b).)

In support of the protective order motion, the Tarnutzers submit the declaration of attorney Phillip J. Trad (Trad), who states that he is counsel of record for the Tarnutzers in case no. 23CR06596 (the City Action) which was filed by the City of Santa Barbara (the City) on September 28, 2023. (Trad Decl., ¶ 1.) Trad declares that the City filed a misdemeanor complaint in the City Action alleging multiple violations of the Santa Barbara Municipal Code by the Tarnutzers. (Id. at ¶¶ 1 & 7 [second bullet point].) According to Trad, the City Action remains active with its disposition dependent on a fine which has not been paid. (Id. at ¶ 8.)

Trad further declares that he has been involved in ongoing disputes alleged by Fleury against the Tarnutzers including proceedings involving the building department, the tax assessor, and the Contractors State License Board (the CSLB), where Fleury has attempted to file criminal charges against the Tarnutzers for unlicensed construction work. (Trad Decl., ¶ 5.) Trad asserts that the Tarnutzers face pending or potential criminal prosecutions based on the CSLB forwarding its investigation results to the district attorney on September 1, 2023, with a recommendation for criminal prosecution under California Business and Professions Code section 7028, and on the Department of Industrial Relations issuing two notices of claims on September 15, 2023, alleging wage violations which involve subcontractors working on the property. (Id. at ¶ 7.)

Trad also states that new investigations of the Tarnutzers have emerged based on Fleury’s conduct, and that Fleury has also alleged that the Tarnutzers withheld or concealed construction-related materials. (Trad Decl., ¶ 8.)

Trad declares that he has reviewed the discovery propounded on the Tarnutzers in this action, including what Trad describes as an initial set of discovery requests served by Fleury on December 12 and 16, 2022, and subsequent discovery served by Fleury on October 23, 2023. (Trad Decl., ¶ 4(a)-(b).) Trad asserts that, based on the allegations and investigations described above and in the Trad declaration, he has advised the Tarnutzers to assert their Fifth Amendment rights in all proceedings and discovery responses, pending the identification, resolution, or dismissal of all allegations and potential charges against the Tarnutzers. (Id. at ¶¶ 9-10.)

The Tarnutzers also submit the declaration of attorney George L. Hampton IV (Hampton), who is the Tarnutzers’ counsel of record in this action. Hampton asserts that the discovery requests at issue in the November Minute Order require the Tarnutzers to disclose information which directly implicates ongoing criminal proceedings, and that these requests inquire into the business practices and personal finances of the Tarnutzers which, according to Hampton, overlap with issues under investigation by regulatory and prosecutorial authorities. (Hampton Decl., ¶ 3.)

Hampton declares that on November 27, 2024, he met and conferred with Fleury’s counsel and explained the Tarnutzers’ position that they should not be required to respond to any discovery in this action, including the discovery requests described and identified in the November Minute Order. (Hampton Decl., ¶ 4.) Hampton also states that he informed Fleury’s counsel that the Tarnutzers’ intended to seek a protective order. (Ibid.) According to Hampton, Fleury’s counsel disagreed with the Tarnutzers’ position and no resolution was reached as to any discovery items. (Ibid.)

A defendant in a civil case does not have an absolute right to invoke the privilege against self-incrimination. (Alvarez v. Sanchez (1984) 158 Cal.App.3d 709, 712 (Alvarez); Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 882, 885.) Wholly absent from the protective order motion, including the declarations described above, is any reasoned factual or legal argument showing, on a point-by-point basis, why there exists good cause for a protective order as to any specific discovery request propounded by Fleury in this action, based on the privilege against self-incrimination. (Warford v. Medeiros (1984) 160 Cal.App.3d 1035, 1045 (Warford) [noting that it has “long been the rule in California” that the privilege against self-incrimination must be claimed on a particular question and submitted to the court].) Instead, the Tarnutzers effectively request a blanket stay of all discovery in this action. For these and all further reasons discussed herein, the Tarnutzers have failed to meet their burden to show good cause for the protective order sought in the protective order motion.

The claim of privilege asserted by the Tarnutzers “protects against real dangers, not remote and speculative possibilities….” (Warford, supra, 160 Cal.App.3d at p. 1043.) Apart from general statements further described above, the Tarnutzers present no information or evidence regarding the subject matter of the City Action, or showing why providing a response to any particular discovery request served by Fleury in this action may or would tend to incriminate the Tarnutzers in the City Action. The Tarnutzers have also failed to explain, on a point-by-point basis, why any specific discovery request would tend to incriminate them with respect to any investigation by the CSLB or district attorney. For these reasons, the Court is unable to “make the particularized inquiry required of it.” (Id. at p. 1045.)

In addition, Fleury submits in support of her opposition to the protective order motion, a declaration of her counsel, Dimitri P. Gross (Gross), who asserts that some of the discovery requests which are the subject of the November Minute Order do not relate to the “remodel” portion of this case, and do not implicate any alleged investigations of the Tarnutzers by the CSLB or allegations made by the City in the City Action. (Gross Decl., ¶ 18.) To support these assertions, Gross submits copies of the Rick RFP and the Rick RFA described above and which are the subject of the November Minute Order. (Id. at Exh. 7.)

The Court’s review of the Rick RFP and the Rick RFA attached to the Gross declaration indicates that, subject to exception, these discovery requests do not wholly relate to the remodel of the property. Instead, Fleury seeks discovery regarding the promissory note allegedly breached by Rick. (See, e.g., Gross Decl., Exh. 7 at pdf p. 85 [Rick RFA nos. 1-11 relating to the “promissory note” only]; p. 90 [Rick RFP nos. 1-2, relating to monies borrowed from Fleury]; p. 91 [Rick RFP nos. 3-4 relating to same].) The Tarnutzers fail to explain why information regarding the promissory note would tend to incriminate them in either the City Action, as to any recommendations made by the CSLB, or as to any investigations by the district attorney. For these reasons, the Tarnutzers have failed to meet their burden to demonstrate good cause for a blanket protective order as to all discovery propounded by Fleury in this action.

In addition, though Gross appears to concede that there is a pending investigation of the Tarnutzers by the Santa Barbara County District Attorney which may give rise to good cause for a protective order as to some portion of the discovery sought by Fleury, Gross also asserts that the City Action relates to the use of the Tarnutzers’ residence as an “Airbnb” and not to the remodel of the property alleged in the SAC or the alleged breach of the promissory note by Rick. (Gross Decl., ¶¶ 19-20 & 22.) Gross further contends that the City Action was resolved by a “diversion agreement” on February 6, 2024. (Id. at ¶ 20.)

To support the contentions described above, Fleury requests judicial notice of: (1) the register of actions for the City Action (the register); (2) a copy of a document entitled “Misdemeanor Diversion Advisements” filed in the City Action on February 6, 2024, which Fleury contends is the “diversion agreement” that resolved the City Action; and (3) a February 3, 2025 Minute Order entered in the City Action (the City Action Order) which Fleury contends continued the restitution to April 28, 2025. (Fleury RJN, ¶ 1 & Exh. 1.) Fleury’s request for judicial notice of these documents is addressed below.

The Court’s review of the charges alleged in the City Action, which are set forth in the register, suggests that action was filed against Rick only, and that the subject of the misdemeanor complaint filed by the City does not relate to or implicate the transactions for which Fleury seeks discovery in this matter. For this reason, the Tarnutzers have failed to show why they are entitled to a protective order as to all discovery in this action pending the disposition of the City Action. (Pacers, Inc. v. Superior Court (1984) 162 Cal.App.3d 686, 690.)

In their reply, the Tarnutzers offer no information to counter or rebut Fleury’s assertion that the subject matter of the City Action is not related to the subject matter of any discovery sought by Fleury in this action. The Tarnutzers also fail to explain why responding to discovery propounded by Fleury in this action could incriminate the Tarnutzers in the City Action, or result in any possibility of prosecution in the City Action. (Warford, supra, 160 Cal.App.3d at p. 1044.) For these additional reasons, the Tarnutzers’ request for a blanket protective order as to all discovery propounded by Fleury in this action appears to be without merit.

Because the privilege against self-incrimination does not apply to matters that subject a witness to civil liability, accommodation of that privilege made to a defendant in a civil action “is done from the standpoint of fairness, not from any constitutional right.” (Blackburn v. Superior Court (1993) 21 Cal.App.4th 414, 425.) “[C]ourts are [also] guided by the strong principle that any elapsed time other than that reasonably required for pleadings and discovery ‘is unacceptable and should be eliminated.’ [Citation.] Courts must control the pace of litigation, reduce delay, and maintain a current docket so as to enable the just, expeditious, and efficient resolution of cases. [Citation.]” (Fuller v. Superior Court (2001) 87 Cal.App.4th 299, 306-307.)

The examples provided above are intended to be illustrative but not exhaustive. Even if the Court were to assume without deciding that there may exist some discovery propounded by Fleury in this action which would require the Tarnutzers to disclose information which may tend to incriminate them, the Tarnutzers have, for present purposes, failed to show on a point-by-point basis good cause for a blanket protective order as to all discovery propounded by Fleury in this action. Considering concerns regarding delay in the time required for discovery in, and the efficient resolution of, this action, and for all reasons discussed above, the Court will deny the protective order motion.

Upon the denial of a motion for a protective order, the court may order that the responding party “provide or permit the discovery against which protection was sought on terms and conditions that are just.” (Code Civ. Proc., §§ 2030.090, subd. (c), 2031.060, subd. (g), & 2033.080, subd. (c).) Noted above, the Court held the November Minute Order in abeyance pending a determination of any motion for a protective order with respect to the discovery requests at issue in that order. As the Court has determined the protective order motion, which was timely filed, the Court will lift the abeyance of the November Minute Order.

In accordance with the November Minute Order, the Court will order Rick to, on or before April 11, 2025, serve code compliant, verified further responses to Rick RFP nos. 1 through 25, Rick RFA nos. 1 through 3, Rick FI nos. 2.2 through 2.7, 12.1, 17.1, 50.1, and 50.2, and Rick SI nos. 3 and 5 through 8, without the objections overruled in the November Minute Order except as to those based on privilege. The Court will further and in accordance with the November Minute Order, order Vonna to, on or before April 11, 2025, serve code compliant, verified further responses to Vonna RFA nos. 2 and 9 through 12, and Vonna FI nos. 2.2 through 2.7, 12.1, 17.1, and 50.1, without the objections overruled in that order except as to those based on privilege.

Nothing herein shall be construed to prevent the Tarnutzers from asserting appropriate objections to any particular request based on any privilege against self-incrimination. To the extent the Tarnutzers withhold from production any documents based on that privilege, the Tarnutzers shall also provide a privilege log sufficient to permit a judicial evaluation of that claim. (Code Civ. Proc., § 2031.240, subd. (c)(1); see also Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1130 [general discussion].) The Court’s ruling herein is without prejudice to the filing of any future motion for a protective order by the Tarnutzers as to any particular or specific discovery request, if appropriate.

In the opposition to the protective order motion, Fleury requests an award of sanctions against the Tarnutzers and their counsel in the amount of $3,600. In support of this request, Gross declares that his hourly rate is $450, and that he spent six hours to prepare the opposition, and that he expects to spend two hours reviewing any reply by the Tarnutzers and to attend the hearing on the protective order motion. (Gross Decl., ¶ 26.)

Subject to exceptions which are not present here, the court “shall” impose a monetary sanction under section 2023.010 et seq. “against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order …, 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., § 2030.090, subd. (d); § 2031.060, subd. (h); § 2033.080, subd. (d).)

The Court notes that in its August 23, 2024, Minute Order, in which the Court lifted the stay of this action, the Court explained that, to the extent the Tarnutzers are confronted with a specific discovery request which legitimately implicates their privilege against self-incrimination, the Tarnutzers may interpose appropriate objections during discovery and may seek a protective order addressing each request or issue on a point-by-point basis as to each particular question or specific request for which the Tarnutzers seek a protective order.

In the November Minute Order, the Court explained that any motion for a protective order that may be filed by the Tarnutzers “must be procedurally appropriate and must show, on a point-by-point basis, good cause for the order sought with respect to each request stated or issue presented….” (Nov. Minute Order, italics added; see also Fairmont Insurance Company v. Superior Court (2000) 22 Cal.4th 245, 255; People v. Williams (1999) 20 Cal.4th 119, 128 [“the party that has the burden of raising an issue also has the burden of proof with respect to that issue”].) For all reasons discussed above, the Tarnutzers have wholly failed to show, on a point-by-point basis, good cause for a protective order as to any particular discovery request. For this and all reasons further discussed above, the Court finds that the protective order motion was without substantial justification, and that an award of sanctions against the Tarnutzers for unsuccessfully making the protective order motion is warranted.

Though the Court finds that an award of sanctions against the Tarnutzers is appropriate, “a trial court has discretion to reduce the amount of fees and costs requested as a discovery sanction in order to reach a reasonable award.” (Cornerstone Realty Advisors, LLC v. Summit Healthcare Reit, Inc. (2020) 56 Cal.App.5th 771, 791.) The Court find that the amount of attorney fees claimed by Fleury is excessive under the circumstances here. The amount of the sanctions needs to reflect the reasonable expenses incurred as a result of the unsuccessful making of the protective order motion. While Fleury’s counsel was required to expend time to oppose that motion, a portion of that time was spent advancing points which have no relevance to the immediate proceeding. (See, e.g., Opp. at p. 9 [referring to other nonrelated litigation in which Rick is a defendant and sought a protective order]; RJN, ¶ 2 [same].)

For all reasons discussed above, under the totality of the circumstances present here including the Court’s experience in addressing attorney fee issues, the Court finds that 5.5 hours of time at Gross’ reasonable rate of $450, for a total of $2,475, constitutes the reasonable amount of attorney fees incurred as a result of the unsuccessful protective order motion and for which monetary sanctions are appropriately awardable.

Fleury’s request for judicial notice:

Noted above, in support of the motion, Fleury requests that the Court take judicial notice of the register, the “diversion agreement” further discussed above, and the City Action Order. (Fleury RJN, ¶ 1 & Exh. 1.)

The register, the “diversion agreement”, and the City Action Order are court records and within the general subject matter for which judicial notice is permitted. (See Evid. Code, § 452, subd. (d).) Further, “[a] court may take judicial notice that pleadings were filed containing certain allegations and arguments….” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 (Oiye).) As the Tarnutzers have placed the subject matter of the City Action at issue in the protective order motion, these materials are also relevant to the Court’s disposition of that motion. (American Cemwood Corp. v. American Home Assurance Co. (2001) 87 Cal.App.4th 431, 441, fn. 7.)

For all reasons discussed above, the Court will grant judicial notice of the register, the diversion agreement, and the City Action Order. Judicial notice of these records does not extend to the truth of facts alleged in any pleadings or which are subject to dispute, or to any hearsay or irrelevant matter contained in the documents. (Oiye, supra, 211 Cal.App.4th at p. 1055; Johnson & Johnson v Superior Court (2011) 192 Cal.App.4th 757, 768.)

Fleury also requests that the Court take judicial notice of various pending lawsuits in which Rick is a defendant, and of a motion for a protective order filed by Rick in an unrelated action. (Fleury RJN, ¶ 2 & Exh. 2.) The Court declines to take judicial notice of these unrelated matters which are not relevant to the issues raised in the protective order motion. (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.)

The parties’ evidentiary objections:

Fleury asserts objections to the entirety of paragraphs 5 through 7, 9, and 10 of the Trad declaration. In their reply papers, the Tarnutzers assert objections to Fleury’s request for judicial notice of pending lawsuits in which Rick has been named as a defendant, and to information appearing in the Gross declaration. The Court considers only evidence that is admissible and relevant to the issues presented in the protective order motion.

(2) The Fleury Motion

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.” (Code Civ. Proc., § 1048, subd. (b).) Under Code of Civil Procedure section 1048, “trial courts have broad discretion to determine the order of proof in the interests of judicial economy.” (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.)

In Fleury motion, Fleury requests that the Court order a separate trial of the eighth and ninth causes of action alleged in the SAC, which Fleury refers to as the “loan agreement” causes of action, and in which Fleury alleges claims for breach of the promissory note and false promise against Rick only.

In support of the Fleury motion, Fleury submits her declaration describing the making of the promissory note and its terms. (Fleury Decl., ¶¶ 3-5.) Fleury contends that Rick stopped making payments under the promissory note in May 2022, and that Fleury has received no assurances from Rick that he will make the payments due under the promissory note including the payment due on its maturity date. (Id. at ¶¶ 6-7.) Fleury further contends that the causes of action which relate to the remodel of the property are separate from the causes of action arising from the purported breach of the promissory note. (Id. at ¶ 8.)

Based on the above, Fleury contends that she asserts two distinct factual claims in this action which are not related, and that nearly all of the discovery in this action relates to the promissory note causes of action, Fleury further asserts that the Tarnutzers have failed and refused to provide any further responses to discovery, or to produce documents, based on the privilege against self-incrimination, and that  the Tarnutzers are using the privilege as a pretext to avoid their discovery obligations with respect to the promissory note.

Fleury further contends that the conduct of the Tarnutzers during discovery has caused Fleury to incur substantial prejudice resulting from a delay in litigating her claims. Fleury also asserts that, notwithstanding any discovery disputes which may arise regarding the remaining “remodel” causes of action, the investigations on which the Tarnutzers rely to avoid their discovery obligations have nothing to do with the promissory note.

In their opposition to the Fleury motion, the Tarnutzers assert generally and in a conclusory manner that the causes of action arising from the purported breach of the promissory note by Rick are interconnected with the remodel of the property, and that Trad has advised them to “take advantage” of their rights against self-incrimination.

Though there is nothing to suggest that the claims which arise from the alleged breach of the promissory note by Rick are complex, available evidence and information suggests that, if the Court were to order a separate trial of the eighth and ninth causes of action, interrelated evidence would, to some extent, necessarily be presented as to the relationship between the parties and Fleury’s reliance on representations purportedly made by Rick with respect to the promissory note. (Cardiff Equities, Inc. v. Superior Court (2008) 166 Cal.App.4th 1541, 1550-1551 [general discussion]; Downey Savings & Loan Assn. v. Ohio Casualty Ins. Co. (1987) 189 Cal.App.3d 1072, 1086; see also People v. Ochoa (2001) 26 Cal.4th 398, 423-424 [general discussion of severance in the context of a criminal action].)

Further, even if the Court were to assume that the causes of action arising from a purported breach of the promissory note by Rick are based on qualitatively different facts as those which give rise to the remaining causes of action alleged in the SAC, Fleury’s request for separate trials of claims alleged in the eighth and ninth causes of action is effectively based on a refusal by the Tarnutzers to provide discovery in this action based on the privilege against self-incrimination. Considering that the Court will deny the protective order motion for all reasons discussed above, any future prejudice or delay that may result from the Tarnutzers’ assertion of the privilege in discovery can be addressed in a future procedurally appropriate motion, if necessary, which may also include any appropriate request for an award of sanctions.

Moreover, considering that “in a civil case a witness or party may be required either to waive the privilege or accept the civil consequences of silence if he or she does exercise it…”, the consequences resulting from an appropriate objection based on the privilege against self-incrimination that is asserted by the Tarnutzers in this proceeding can be addressed in a procedurally appropriate manner at an appropriate time. (Alvarez, supra, 158 Cal.App.3d at pp. 712-713, fn. 6 [general discussion].)

Under the totality of the circumstances here, the Court does not find that a separate trial of the eighth and ninth causes of action alleged in the SAC is presently warranted or necessary. Therefore, at this stage of the proceedings, the Court will deny the Fleury motion.

In support of the Fleury motion, Fleury requests that the Court take judicial notice of the register, and of the pending lawsuits in which Rick is named as a defendant. The same reasoning and analysis apply. For all reasons further discussed above, the Court will grant Fleury’s request as to the register, and deny the request as to the lawsuits in which Rick is named as a defendant.