Guardianship of Isadora Szele-Alston

Case Number

24PR00003

Case Type

Hearing Date / Time

Thu, 12/05/2024 - 09:00

Nature of Proceedings

Motion: Compel Further Discovery Set One

Tentative Ruling

TENTATIVE RULING:

The motion of Petitioners to compel further responses to requests for production of documents, set one, is granted in part and denied in part as follows:

1. The motion is granted as to requests for production of documents, set one, requests Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13 (as modified below), 14, 16, and 45, for the time-period of January 1, 2023, to the date of production.

a. Christina Szele shall provide further code-compliant responses, without objection except as to privilege, and produce all responsive documents no later than December 30, 2024.

b. For any documents or things withheld on a claim of privilege, Christina Szele shall provide a privilege log containing sufficient information for petitioner, and the court, to evaluate the claim.

2. The motion is denied as to all other requests.

3. No sanctions are awarded against or in favor of any party.

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Background:

This action was commenced on January 3, 2024, by the filing of the petition for appointment of temporary guardian of the person of minor Isadora Szele-Alston (“Isadora”), by her aunt and uncle Tonya Szele (“Tonya”) and Michael Szele (“Michael”). (Note: due to common surnames, and for clarity, the parties will be referred to by their given names. No disrespect is intended.)

On March 7, 2024, Isadora’s mother Christina Szele (“Christina”) filed an objection to the petition for appointment of guardian.

On March 28, 2024, the court appointed minor’s counsel and ordered that the parties share the cost of minor’s counsel’s fees equally, subject to reallocation.

On April 18, 2024, Tonya and Michael served a demand for production of documents, set one, on Christina. (Kaur Decl., ¶ 4 & Exh. A.) Christina responded to the demand for production on May 17, 2024, with objections. (Kaur Decl., ¶

Deeming the responses inadequate, Tonya and Michael’s counsel sent correspondence to Christina’s counsel. The parties engaged in the meet and confer process but were unsuccessful in resolving their dispute.

On July 3, 2024, Tonya and Michael filed the present motion to compel further responses to the requests for production of documents.

On September 19, 2024, Christina's prior attorney was relieved as counsel. On October 17, 2024, Christiana’s current counsel substituted into the case.

Christina filed her opposition to the present motion on November 1, 2024.

Because the opposition was late-filed, and brought up some valid arguments, the hearing was continued to give Tonya and Michael the opportunity to file a reply.

Analysis:

Meet and Confer

Included as part of the continuance was an order that the parties continue to meet and confer, in good faith, regarding issues raised by the motion and opposition. Specifically, the parties were to discuss the period of production for the requests and the applicability of the taxpayer privilege.

According to the declaration of Tonya and Michael’s counsel, he attempted to meet and confer with Christina’s counsel, but the attempts were completely ignored. (Reply Decl., ¶ 1 & Exh. A.) By way of a response to Christina’s motion to strike reply, Tonya and Michael represent that less than 24 hours prior to the scheduled continued hearing, Christina’s counsel called Tonya and Michael’s counsel requesting a meet and confer.

The court finds that Christina’s counsel did not make any good faith attempt to meet and confer to address the issues as the court ordered. The court considered issuing an order to show cause why Christina’s counsel should not be personally sanctioned for failure to comply with the court order pursuant to Code of Civil Procedure section 177.5. The court will decline to do so at this time, but counsel is advised that the court can and does issue orders to show cause for failure to follow court orders. Counsel is expected to comply with all court orders going forward.

Christina’s Motion to Strike Reply

Christina moves to strike Tonya and Michael’s reply brief because it was filed and served one day late. The court finds the motion disingenuous at best. As noted above, and as the parties are aware, the reason for the original continuance was because Christina’s opposition was filed a mere four court days prior to the original scheduled hearing. Tonya and Michael represent that the one-day late filing was the result of ignored efforts to meet and confer with Christina’s counsel. The motion to strike the reply will be denied.

Legal Standard for Motion to Compel Further Response

“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.)

Code of Civil Procedure, section 2031.010 provides, in pertinent part: “(a) Any party may obtain discovery . . . by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control of the party on whom the demand is made.  “(b) A party may demand that any other party produce and permit the party making the demand, or someone acting on the demanding party’s behalf, to inspect and to copy a document that is in the possession, custody, or control of the party on whom the demand is made.”

“The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following:

“(1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling . . .

“(2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item, or

“(3) An objection to the particular demand for inspection, copying, testing, or sampling.” (Code Civ. Proc. § 2031.210, subd. (a).)

Code of Civil Procedure, section 2031.240, provides:

“(a) If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.

“(b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following:

“(1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made.

“(2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010), that claim shall be expressly asserted.

“(c)(1) If an objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log.

“(2) It is the intent of the Legislature to codify the concept of a privilege log as that term is used in California case law. Nothing in this subdivision shall be construed to constitute a substantive change in case law.”

A motion to compel further responses to a demand for production of documents “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., § 2031.310, subd. (b)(1).) To establish good cause, the burden is on the moving party to make a “fact-specific showing of relevance.” (Glenfed Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117.)

Agreed Upon Further Responses and Production

Requests Nos. 1, 2, 3, 4, 5, 6, 7, 12, 14, and 16, seek documents for the time period of January 2020, through the date of production. Christina has agreed to produce the requested documents for the period of January 1, 2023, to the date of production, to the extent responsive documents exist. Tonya and Michael fail to address Christina’s offer of production limited to this time period and also fail to provide any reason why they would need documents spanning a longer period of time.

As Christina has offered to produce the documents, she will be ordered to provide a code-compliant further written response to the requests, absent objections except as to privilege, and to produce responsive documents for the time-period of January 1, 2023. For any documents withheld on the basis of privilege, Christina shall provide a privilege log in compliance with Code of Civil Procedure section 2031.240, subdivision (c)(1).

Financial Documents

Requests Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 40, 41, 42, and 43 seek financial documents including tax returns, tax forms, paystubs, credit card statements, interests in trusts, income from lawsuits, and other financial documents.

Tonya and Michael essentially make the same argument for each of the requests in support of the motion: “OBJECTOR’S financials are relevant to the issue before the Court as it relates to minor counsel’s fees. Petitioners objected to paying one-half of the fees for minor’s counsel and Objector informed the Court she does not have the ability to pay for it on her own due to her finances. Petitioners are 100% fully financially responsible for Isadora presently and have been for the past several months. Objector has alleged that she does not have the funds to pay for minor’s counsel despite her objecting to the Guardianship Petition even though she is allegedly gainfully employed. Thus, OBJECTOR’S finances are subject to discovery in this matter.”

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Cal. Const., art. 1, § 1; italics added.)

“In Webb v. Standard Oil Co., 49 Cal.2d 509, 512 [319 P.2d 621], we construed former Revenue and Taxation Code section 19282. This section provided in part that, except in tax enforcement proceedings, “ ‘ “. . . it is a misdemeanor for the Franchise Tax Board, any deputy, agent, clerk, or other officer or employee, to disclose in any manner information as to the amount of income or any particulars set forth or disclosed in any report or return required under this part.” ’ ” (Although § 19282 has since been amended, the language of the present statute is substantially the same.) In Webb we noted that the purpose of such provisions as section 7056 is “ ‘to facilitate tax enforcement by encouraging a taxpayer to make full and truthful declarations in his return, without fear that his statements will be revealed or used against him for other purposes.’ ” ( Id., at p. 513.) In Webb we unanimously held that forcing the taxpayer himself to produce a copy of his state or federal income tax returns, which the opposing party wished to use for impeachment purposes, would effectively defeat this legislative purpose. We continued “ ‘[t]he effect of the statutory prohibition [of disclosure] is to render the returns privileged, and the privilege should not be nullified by permitting third parties to obtain the information by adopting the indirect procedure of demanding copies of the tax returns.’ ” (Ibid.) We have subsequently within other contexts reaffirmed the privileged nature of tax returns. [Citations.]” (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6.)

“A bank customer reasonably expects the bank to maintain the confidentiality of private financial matters. [Citation.] While there is no “ ‘bank-customer privilege akin to the lawyer-client privilege’ ” or other statutory privileges, confidential financial information given to a bank by its customers is protected by the right to privacy that became a part of the California Constitution after the judicial formulation of the tax-return privilege. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656; Cal. Const., art. I, § 1.) Thus, there is a right to privacy in confidential customer information whatever form it takes, whether that form be tax returns, checks, statements, or other account information. [Citation.]” (Fortunato v. Superior Court (2003) 114 Cal.App.4th 475, 480-481.)

Simply because Christina has represented that she does not have the funds to pay for minor’s counsel does not open-up her entire financial status to discovery. Even if they had shown some exception to the taxpayer privilege or Christina’s right to financial privacy, which they have not, Tonya and Michael have failed to meet their burden of showing fact-specific relevance. The motion to compel further responses will be denied.

Other Requests

Request No. 8 seeks: “ALL CORRESPONDENCE (with ALL ELECTRONICALLY STORED INFORMATION and attachments) between YOU and ANY PERSON regarding or RELATING TO Isadora Szele-Alston.”

Christina responded: “Objection. Responding party objects to this request to the extent that it seeks the legal reasoning and theories of Responding party’s contentions. Responding party is not required to prepare Propounding Party’s case. [Citations.] This request is unduly burdensome and harassing. Objection, Attorney-Client privilege and attorney work product. This request is overly broad and requests so many documents it would be much too time consuming and expensive to comply with this request.”

By way of their separate statement, Tonya and Michael argue that the objections are without merit and then state, as the reason a further response should be given: “Petitioners filed a Guardianship Petition to keep the minor child, Isadora, safe in their care. Objector is opposing the Petition. As such, she has the burden of proving why this Court should deny Petitioners’ Petition and provide all supporting document(s) that support opposition to the Petition, which include her providing all documents responsive to this demand.”

While Tonya and Michael only make a conclusory statement, basically only stating that Christina should comply because she opposes the statement, and fail to set forth the required fact-specific showing of relevancy, Christina, by way of her responsive separate statement, states: “In order to resolve this issue, Objector will agree to produce the requested documents for the period January 1, 2024, to date of production if the documents exist, the documents are in Objector’s possession, and the documents are not subject to attorney client privilege or work product.”

Because Christina has offered to do so, she will be ordered to provide a further response and provide responsive documents for that time-period.

Request No. 9 seeks: “ALL CORRESPONDENCE (with ALL ELECTRONICALLY STORED INFORMATION and attachments) between YOU and ANY PERSON regarding or RELATING TO PETITIONERS.”

Christina responded with objections only.

Tonya and Michael provide the same reason for a further response as they did for request No. 8, and, again, fail to set forth the required fact-specific showing of relevancy. However, Christina again, by way of her responsive separate statement, offered: “In order to resolve this issue, Objector will agree to produce the requested documents for the period January 1, 2024, to date of production if the documents exist, the documents are in Objector’s possession, and the documents are not subject to attorney client privilege or work product.” She will be ordered to do so.

Request No. 10 seeks: “All DOCUMENTS reflecting communications between YOU and the Petitioners in the time period requested, including ESI and in its original form, including, but not limited to, text messages, email and any other written communications discussing Isadora Szele-Alston.”

Christina responded with objections but also stated that: “The documents requested are in the possession, custody or control of the requesting party including, but not limited to, pleadings filed by Objector in this action which detail inconsistencies and some of which will be produced for ease of reference.” Tonya and Michael make the same argument as with the above requests and also state that Christina has not produced any documents even though she stated she would.

In her separate statement, Christina again offers: “In order to resolve this issue, Objector will agree to produce the requested documents for the period January 1, 2024, to date of production if the documents exist, the documents are in Objector’s possession, and the documents are not subject to attorney client privilege or work product.” She will be ordered to do so.

Request No. 11 seeks: “All text messages and written communications between YOU and Isadora Szele-Alston in the time period requested.”

Christina responded with objections only.

By way of their separate statement, Tonya and Michael argue: “Petitioners filed a Guardianship Petition to keep the minor child, Isadora, safe in their care. One of the allegations has been that Objector communicates with Isadora inappropriately as established by evidence. Objector is opposing the Petition. As such, she has the burden of proving why this Court should deny Petitioners’ Petition and provide all supporting document(s) that support opposition to the Petition and provide all documents responsive to this demand.”

Tonya and Michael have not met their burden of showing fact-specific relevance that would overcome the rights of privacy, as to each and every text or other written communication, between Christina and Isadora. The motion to compel a further response will be denied.

Request No. 13 seeks: “All DOCUMENTS which YOU maintain or cause to be maintained relating to Isadora Szele-Alston. The DOCUMENTS shall include, without limitation, all DOCUMENTS which evidence, reflect, or purport to evidence or reflect (a) the activities of the MINOR CHILD; (b) the mental health, problems, growth, and/or progress of the MINOR CHILD; (c) learning or cognitive problems or difficulties associated with the MINOR CHILD; (d) extracurricular activities of the MINOR CHILDREN; (e) the MINOR CHILD’S interaction with YOU and/or PETITIONERS; (f) the amount of time YOU and/or PETITIONERS spend with Isadora Szele-Alston; and/or (g) the nature of the activities in which YOU and/or PETITIONERS and Isadora Szele-Alston engage while together.”

Tonya and Michael make essentially a variation the same argument that they advance for nearly every other request: “Petitioners filed a Guardianship Petition to keep the minor child, Isadora, safe in their care in light of OBJECTOR’S past history of substance abuse and neglect of Isadora. There is presently temporary guardianship in place and Objector is opposing the Petition. As such, she has the burden of proving why this Court should deny Petitioners’ Petition and provide all supporting document(s) that support opposition to the Petition, which include her providing all documents responsive to this demand. Petitioners are entitled to discovery and are entitled to know to what extent Objector knows of Isadora’s life, in all aspects.”

While the court finds the request extremely overbroad and convoluted, and that Tonya and Michael have failed to meet their burden for such a broad request, Christina has offered: “In order to resolve the issue, Objector will agree to produce documents from January 1, 2023, to date of production reflecting the child’s activities, her physical health, her learning or cognitive problems, her extra-curricular activities, the amount of time the child spends with her including the activities Objector and the child participate in together if the documents exist, the documents are in Objector’s possession, and the documents are not subject to attorney client privilege or work product.” The offered documents are a reasonable limitation on the request, and Christina will be ordered to produce those documents that she has offered to produce.

Request No. 15 seeks: “All DOCUMENTS that refer to, reflect, or evidence opinions, observations and/or evaluations regarding Isadora Szele-Alston. This Demand shall include, without limitation, all reports, recommendations and all other DOCUMENTS relating to the custody, visitation, physical health, mental health, and/or welfare of Isadora Szele-Alston.”

Christina responded with objections only.

Tonya and Michael again provide the same argument for a further response without specifically addressing the documents that are being requested. They fail to meet their burden of a fact-specific showing of relevancy. The motion to compel a further response will be denied.

Request No. 34 seeks: “All documents reflecting any lawsuit you were a party to beginning September 17, 2020, through the date of production.” Request No. 39 seeks: “All DOCUMENTS reflecting the days and hours worked by YOU in the time-period requested.” Request No. 46 seeks: “All documents reflecting any lawsuit you were a beneficiary to beginning September 17, 2020, through the date of production.”

Christina responded to each: “Objection. The records requested are not relevant to the proceedings in this case and are an invasion of privacy. Attorney client privilege. Attorney work product.”

By way of their separate statement, Tonya and Michael make clear that what they are actually seeking, by way of the requests, more financial information from Christina. This is not clear from the actual requests. Because Tonya and Michael are seeking financial information, without making a showing of relevance that outweighs Christina’s right to privacy, the motion to compel further responses will be denied for the same reason the other requests seeking financial information will be denied.

Request No. 44 is absent from the separate statement. As such, any motion to compel a further response to that request will be denied.

Request No. 45 seeks: “Any photographs or videos taken, received by YOU, including ESI, of Isadora-Szele-Alston in the time period requested.”

Christina objected that it is duplicative of request No. 16. Request No. 16 is slightly different than request No. 45 in that request No. 45 requests not only photographs and videos taken by Christina, but also photographs and videos received by Christina. A further response, limited to the time period above (January 1, 2023, to the date of production), will be ordered.

Sanctions

The court “shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to 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.” (Code Civ. Proc., § 2031.310.)

“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.” (Code Civ. Proc., § 2031.320, subd. (b).)

The motion was partially successful and partially unsuccessful. Circumstances make the imposition of sanctions unjust at this time.