Matter of Nelly Mercado and Albert N Mercado Trust

Case Number

24PR00029

Case Type

Hearing Date / Time

Thu, 07/31/2025 - 09:00

Nature of Proceedings

Motions to Compel (4); Motion re Sanctions Reserved

Tentative Ruling

1. The motion of Respondent Nelly Mercado to compel Ryan Mercado to provide further responses to form interrogatories, set one, and request for monetary sanctions is granted in part and denied in part as follows:
   1. The motion is granted as to form interrogatories Nos. 2.5 and 2.6.
   2. Ryan Mercado shall provide further complete and code-compliant verified responses, without objections, no later than August 21, 2025.
   3. No monetary sanctions are awarded in favor of or against any party.

2. The motion of Respondent Nelly Mercado to compel Ryan Mercado to provide further responses to special interrogatories, set one, and request for monetary sanctions is granted in part and denied in part as follows:

1. The motion is denied as to special interrogatory No. 40
2. The motion is granted as to special interrogatories Nos. 9, 15, 36, 37, 38, 41, 42, and 43.
3. Ryan Mercado shall provide further complete and code-compliant verified responses, without objections, no later than August 21, 2025.
4. No monetary sanctions are awarded in favor of or against any party.

3. The motion of Respondent Nelly Mercado to compel Ryan Mercado to provide further responses to requests for production of documents and things, set one, is granted in part and denied in part as follows:
   1. The motion is denied as to request for production of documents No. 21.
   2. The motion is granted as to requests for production of documents Nos. 1, 2, 5 through 19, and 24 through 27.
   3. Ryan Mercado shall provide further complete and code-compliant verified responses, without objections except as to privilege, along with all non-privileged responsive documents, no later than August 21, 2025.
   4. For any document withheld based on a claim of privilege, Ryan Mercado shall produce a privilege log, containing sufficient factual information for Nelly Mercado to evaluate the merits of the claim of privilege.
   5. No monetary sanctions are awarded in favor of or against any party.

4. The motion of Respondent Nelly Mercado to compel Ryan Mercado to provide further responses to request for admission, set one, is granted in part and denied in part as follows:
   1. The motion is granted as to request for admission No. 50.
   2. Ryan Mercado shall provide a further complete and code-compliant verified response, without objections, no later than August 21, 2025. Should the further response be anything other than an unqualified admission, Ryan Mercado is ordered to provide all the information called for by Form Interrogatory No. 17.1, with a properly executed verification.
   3. No monetary sanctions are awarded in favor of or against any party.

5. Sanctions for Ryan Mercado’s denied motion for protective order are awarded as follows:
   1. Reasonable monetary sanctions in the amount of $3,300.00 are awarded in favor of Nelly Mercado, and against Ryan Mercado, to be paid to Nelly Mercado’s attorney no later than August 29, 2025.
   2. Reasonable monetary sanctions in the amount of $2,750.00 are awarded in favor of Tamara Skov and Shannon Dalton, collectively, to be paid to their attorney no later than August 29, 2025.

Background:

This action was commenced on January 22, 2024, by the filing of the Petition by Ryan Mercado (“Ryan”), against respondents Nelly Mercado (“Nelly”), Tamara Skov (‘Skov”), and Shannon Dalton (“Dalton”) for: (1) A report and accounting, (2) An order ascertaining trustees and instruction regarding removal of purported trustees, (3) For an order returning trustees fees taken by Skov and Dalton, (4) For damages for breach of fiduciary duty, (5) For adjudication of rights as to trust property, and (6) For an order compelling the trustees to fund the decedent’s trust. (Note: Due to common surnames, some individuals will be referred to by their given names for clarity. No disrespect is intended.)

As alleged in the Petition:

The Nelly Mercado and Albert N. Mercado Trust (the “Trust”) was established on November 5, 1993, and was amended and restated on August 20, 2021. (Pet., ¶ 1 & Exh. A.) Albert N. Mercado (“Albert N.”) died on October 26, 2022. (Id. at ¶ 2.)

Ryan is the grandson of Nelly and Albert N. and a residuary beneficiary of the Trust and was appointed as a successor trustee in the event that his father, Albert William Mercado (“Albert W.”) or Nelly are no longer able to serve as trustees. (Pet., ¶ 3.)

Skov and Dalton of Quinn Fiduciary Services purport to act as co-trustees of the Trust. (Pet., ¶¶ 7, 8.)

Pursuant to the terms of the Trust, on Albert N.’s death, the trustees of the Trust were to divide the assets of the Trust into a Survivor’s Trust, a Marital Trust, and a Decedent’s Trust. (Pet., ¶ 13.) The Survivor’s Trust was to be funded with Nelly’s interest in the community estate and Nelly’s separate property. (Id. at ¶ 14.) The Decedent’s Trust was to be funded with Albert N.’s interest in the community estate and his separate property. (Id. at ¶ 15.) The assets of the Trust were not sufficiently large to trigger the funding of the Marital Trust. (Id. at ¶ 16.)

Despite Albert N. passing away on October 26, 2022, it is not clear whether the division of assets into the sub-trusts occurred. (Pet., ¶ 17.) Upon Albert N.’s passing, The son of Albert N. and Nelly, Giancarlo, became a successor co-trustee with Nelly. (Id. at ¶ 18.) Giancarlo acted as co-trustee in the months following Albert N.’s death until Giancarlo’s death on January 22, 2023. (Id. at ¶ 19.) Following Giancarlo’s death, Nelly appointed her son, Albert W., as co-trustee of the Trust, with the effective date of the appointment being January 22, 223. (Id. at ¶ 20 & Exh. B.)

On February 10, 2023, Nelly and Albert W. executed a notarized affidavit of change of trustee and recorded it. (Pet., ¶ 22 & Exh. C.)

On April 4, 2023, Nelly and Albert W. executed a notarized amendment of successor trustee, appointing Ryan as successor trustee upon the death or incapacitation of either Nelly or Albert W. (Pet., ¶ 25 & Exh. D.)

In the summer of 2023, Nelly stopped communicating with Albert W. regarding the Trust. (Pet., ¶ 28.) On September 26, 2023, Nelly purportedly resigned as Trustee and unilaterally appointed private professional fiduciaries Skov and Dalton as successor co-Trustees of the Trust. (Id. at ¶ 29 & Exh. E.)

The appointment of Skov and Dalton was not consistent with the Trust’s procedures for the appointment of a trustee. (Pet., ¶ 33.) Nelly appointed them without Albert W.’s consent or approval, which is not allowed under the terms of the Trust. (Id. at ¶ 34.)

Nelly is declining to fund the Decedent’s Trust based on the advice of her neighbors that have a vested interest in Nelly’s financial decisions. (Pet., ¶ 47.)

Without the consent or approval of Albert W., in July 2023, Nelly arranged for the sale of real property located in Sherman Oaks that was held by an entity wholly owned by the Trust. (Pet., ¶ 48.)

Ryan has requested an accounting from Skov and Dalton but has not received one. (Pet., ¶¶ 49-52.)

The respondents have all filed responses to the petition largely disputing Ryan’s allegations and adding additional details regarding the circumstances surrounding the purpose and management of the Trust.

On August 9, 2024, Nelly served Ryan with form interrogatories (“FIs”), special interrogatories (“SIs”), requests for production of documents (“RFPs”), and requests for admission (“RFAs”). Following an agreed upon extension, on October 15, 2024, Ryan served his responses to Nelly’s discovery requests. Nelly now seeks to compel further responses to the discovery requests, as explained below, and seeks monetary sanctions for each of the four discovery motions.

Ryan has not filed opposition or any other responsive document to the motions to compel.

Also, on May 6, 2025, Ryan filed a motion for protective order, sanctions, and judicial oversight. The motion was opposed by Nelly, and separately by Skov and Dalton. The respondents requested monetary sanctions for having to oppose Ryan’s motion. On June 5, 2025, the court denied Ryan’s motion and reserved the issue of the requested sanctions for July 31, 2025.

Analysis:

          Self-Representation

As noted above, Ryan is self-represented. It is worth noting:

“[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.] . . . A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)

          Discovery

“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.)

“A trial court must be mindful of the Legislature’s preference for discovery over trial by surprise, [and] must construe the facts before it liberally in favor of discovery. . .” (Williams v. Superior Court (2017) 3 Cal.5th 531, 540.)

          Form and Special Interrogatories

Nelly seeks further responses to FIs Nos. 2.5 and 2.6, as well as SIs Nos. 9, 15, 36, 37, 38, 40, 41, 42, and 43.

Code of Civil Procedure, section 2030.010 provides, “(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing with Section 2019.010), by propounding to any other party to the action written interrogatories to be answered under oath. (b) An interrogatory may relate to whether another party is making a certain contention, or to the facts, witnesses, and writings on which a contention is based. An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.”

Code of Civil Procedure section 2030.220 provides that, “(a) Each answer in a response to interrogatories shall be as complete and straightforward as the information reasonably available to the responding party permits. (b) If an interrogatory cannot be answered completely, it shall be answered to the extent possible. (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally available to the propounding party.”

FI No. 2.5 requires Ryan to:

“State:

          “(a) your present resident ADDRESS;

          “(b) your residence ADDRESSES for the past five years; and

          “(c) the dates you lived at each ADDRESS.”

Ryan responded:

          “(a) 1139 E Brickyard Rd., Salt Lake City, UT 84016;

          “(b) 2020: 1585 Empire Ave. Park City, UT 2017-2019; 828 3d Street, Santa         Monica, CA 90403

          “(c) 2020: 1585 Empire Ave. Park City, UT 2017-2019; 828 3d Street, Santa         Monica, CA 90403”

Ryan’s response is incomplete. Ryan does not state the date he started living at his current address or provided information regarding where he lived from 2020 to the present. The responses must be as complete and straightforward as possible. Ryan will be ordered to provide a further response.

FI No. 2.6 requires Ryan to:

“State:

“(a) the name, ADDRESS, and telephone number of your present employer or place of self-employment; and

“(b) the name, ADDRESS, dates of employment, job title, and nature of work for each employer or self-employment you have had from five years before the INCIDENT until today.”

Ryan responded:

          “(a) Rytechan Consulting and Addie Health Inc                                                          “(b) 159 Broadway St STE 200-208 Salt Lake City, UT 84101.”

The response is incomplete. Ryan does not state the address or telephone number of his present employer or place of self-employment. Further, he provides no information in subdivision (b) other than an address. Ryan will be ordered to provide a further response.

SI No. 9 requires Ryan to:

“State all facts relating to YOUR knowledge prior to the sale of the property located at 4525 Murietta Avenue, Sherman Oaks, CA 91423 (“Murietta Property”) that NELLY wanted to sell the Murietta Property.”

Ryan responded:

“Responding party objects on the grounds that this interrogatory is vague, ambiguous, and uncertain as to time. Without waiving objections, Responding Party responds as follows: Responding Party believed that Nelly Mercado and Albert William Mercado intended to wait to sell the property located at 4525 Murietta Avenue, Sherman Oaks, CA 91423 until 2025 at the earliest.”

Ryan’s objections are without merit and are overruled. The response itself does not directly provide the information required. It does not state any of the facts that were requested. It merely states that Ryan had a belief regarding when Nelly and Albert W. intended to sell the property. He must state facts that support his contentions rather than beliefs. Ryan will be ordered to provide a further response.

SI. No. 15 requires Ryan to:

“State all facts that support YOUR allegation in Paragraph 24 of YOUR PETITION that “ ‘In the months after Albert William’s appointment as co-trustee, he and Nelly worked together to have the titling of accounts changed to reflect the fact that Albert William was appointed as co-trustee.’ ”

Ryan responded:

“In the months after Albert William Mercado’s appointment as co-trustee, he and Nelly worked together to notify Chase Bank, Morgan Stanley and Wells Fargo of Albert William Mercado’s role as Co-Trustee of the Trust.”

Again, Ryan’s response does not provide what is being requested. The SI seeks facts that support his allegation. Ryan’s response simply restates the basic premise of his original allegation.  Ryan will be ordered to provide a further response.

SI No. 36 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding the TRUST.”

Ryan responded:

“Responding party objects on the grounds that this interrogatory exceeds the scope of permissible discovery; seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; and is overly broad and unduly burdensome as to time and scope such that it is harassing. Without waiving objections, Responding Party responds as follows:

• Emails sent to Albert William Mercado, Nelly Mercado and Peter Kruse.

• Text messages between Albert William Mercado and Responding Party.”

Ryan’s objections are without merit and are overruled. The response itself is incomplete. The response must be more specific and provide enough information that would allow the identified documents to be the subject of RFPs. For example, the responses should, at a minimum, identify the date of each communication, the general substance of the communications, as well as the parties to the communications. Ryan will be ordered to provide a further response.

SI No. 37 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding TRUST assets.”

Ryan’s response was identical to his response to SI No. 36 and is deficient for the same reason. Ryan will be ordered to provide a further response.

SI No. 38 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding TRUST liabilities.”

Ryan’s response was identical to his response to SIs Nos. 36 and 37 and is deficient for the same reason. Ryan will be ordered to provide a further response.

SI No. 40 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding Nelly.”

Ryan’s response was identical to his response to SIs Nos. 36, 37, and 38. However, the interrogatory, on its face, is overbroad and seeks information that is not likely to lead to the discovery of admissible evidence. Although, by way of the separate statement, Nelly proposes that the communications be limited to the time period of January 22, 2023 to the present, the interrogatory itself is not so limited. Even if it were, the court will not order Ryan to produce “all written communications” between Ryan and his father regarding Ryan’s grandmother and Albert W.’s mother, Nelly. The motion will be denied as to SI No. 40.

SI No. 41 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding the ACCOUNTING that was completed in this matter by Donna M. Dawson on behalf of co-trustees Tamara Skov and Shannon Dalton.”

Ryan responded:

“Responding party objects on the grounds that this interrogatory exceeds the scope of permissible discovery; seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; and is overly broad and unduly burdensome as to time and scope such that it is harassing. As such, Responding Party cannot provide a response.”

While there may be other valid grounds for objection to SI No. 41, the ones stated by Ryan are not valid objections, and by not filing an opposition to the motion, Ryan has failed to justify the objections he has stated. The objections to the SI are overruled and Ryan will be ordered to provide a further response.

SI No. 42 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding Peter Kruse.”

(Note: Kruse was identified in Ryan’s petition as Nelly’s attorney that prepared the appointment of Albert W. as co-trustee, and the affidavit of change of trustee. (Pet., ¶¶ 21, 23.)

Ryan’s response was identical to his response to SIs Nos. 36, 37, 38, and 40 and is deficient for the same reason. Ryan will be ordered to provide a further response.

SI No. 43 requires Ryan to:

“IDENTIFY all written COMMUNICATIONS YOU have had with ALBERT W. regarding the administration of the TRUST.”

Ryan’s response was identical to his response to SIs Nos. 36, 37, 38, 40, and 42 and is deficient for the same reason. Ryan will be ordered to provide a further response.

          Requests for Production of Documents

Plaintiff seeks further responses to RFPs Nos 1, 2, 5-19, 21, and 24-27, production of the documents and, if any documents are withheld based on a clam of privilege, a code compliant privilege log.

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.”

Here, the court has reviewed all of the RFPs in dispute. Other than RFP No. 21, they appear to seek relevant information and are reasonably calculated to lead to the discovery of admissible evidence. RFP No. 21 seeks: “All COMMUNICATIONS YOU have had with ALBERT W. from January 1, 2022 to the date of YOUR response to these requests for production of documents regarding NELLY.” The motion will be denied as to RFP No. 21, but otherwise granted.

If any documents are withheld based on a claim of privilege, Ryan will be ordered to provide a privilege log pursuant to Code of Civil Procedure, section 2031.240, subdivision (c), with sufficient factual information for Nelly to evaluate the merits of the claim of privilege.

          Requests for Admission

Nelly seeks further responses to RFA No. 50 and, in the event that it is not an unqualified admission, provide the information required by FI No. 17.1, which was served concurrently with the RFAs.

RFAs “differ fundamentally from other forms of discovery. Rather than seeking to uncover information, they seek to eliminate the need for proof.” (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 735.)

Code of Civil Procedure, section 2033.010 provides, in pertinent part: “Any party may obtain discovery . . . by a written request that any other party to the action admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.”

“The party to whom requests for admission have been directed shall respond in writing under oath separately to each request. Each response shall answer the substance of the requested admission, or set forth an objection to the particular request.” (Code Civ. Proc. § 2033.210, subds. (a-b).

Although admissions should not be substantively compound, the responding party has an affirmative duty to “admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party.” (Code Civ. Proc., § 2033.220, subd. (b)(1).)

RFA No. 50 asks Ryan to admit: “YOU are currently unemployed.”

Ryan responded: “Responding party objects on the grounds that this request (1) exceeds the scope of permissible discovery; (2) seeks information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence; and (3) is overly broad and unduly burdensome such that it is harassing. On the basis of the stated objections, Responding Party will not provide a response.”

Nelly argues that Ryan has directly put his employment status at issue by claiming, in response to other discovery, that he was compensated by Nelly or the Trust for work he had to forgo in order to help the trust.

The request appears reasonably likely to lead to the discovery of admissible evidence and Ryan has failed to justify his objections. He will be ordered to provide a further response and, if the response is other than an unqualified objection, Ryan will be ordered to provide the information required by FI No. 17.1.

          Discovery Motion Sanctions

Nelly seeks sanctions of $5,835.00 for bringing the motion as to the FIs, $7,760.00 for the SIs, $9,410.00 for the RFPs, and $3,635.00 for the RFA’s.

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, 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., § 2030.300, subd. (d).)

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, subd. (h).)

“The court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, 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., § 2033.290, subd. (d).)

“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).)

Here, the court finds that circumstances make the imposition of sanctions unjust. Specifically, the court finds that, although sufficient for the purpose of bringing the motions, the meet and confer process afforded too little in the way of explaining to Ryan why further responses were required.

“ ‘The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘ “an informal resolution of each issue.” ’ [Citations.] This rule is designed ‘ “to encourage the parties to work out their differences informally so as to avoid the necessity for a formal order. . . .” ’ [Citation.] This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes. [Citations.]’ ” [Citation.]” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293.)

“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.) “A determination of whether an attempt at informal resolution is adequate . . . . involves the exercise of discretion.”  (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016.)

Nelly’s meet and confer letter to Ryan was conclusory and lacked specific legal authority. For example, with respect to RFPs Nos. 1 and 2, the letter states: “You need to provide a further response that states you will produce ‘all’ responsive documents in your possession, custody or control. Without the word ‘all’ it is not clear if you are selectively withholding documents.” The letter does not set forth any code sections or explain to Ryan what is required in a response to an RFP.

No monetary sanctions will be imposed as a result of the discovery motions.

          Sanctions Regarding the Denied Motion for Protective Order

Nelly seeks monetary sanctions of $11,550.00 in sanctions related to opposing Ryan’s motion for protective order. Skov and Dalton collectively seek monetary sanctions of $3,850.00 for opposing Ryan’s motion for protective order.

Ryan’s motion for a protective order contained several complaints about alleged misconduct by Nelly’s counsel. Among the complaints is that, following the withdrawal of Ryan’s counsel, Nelly’s counsel represented that he would meet and confer with Ryan directly before filing any discovery motions. Reading Ryan’s argument in this regard, Ryan appears to believe that the statement meant that Nelly’s counsel would either meet with Ryan in person or have a telephone conversation. Ryan misunderstands what Nelly’s counsel was saying. When a party is no longer represented, an opposing attorney must deal directly with the party rather than an attorney. A letter, such as the meet and confer letter regarding discovery, is meeting and conferring directly with the party.

Ryan’s next argument is that Nelly’s attorney engaged in “abusive discovery tactics,” including “100+ discovery requests, using inflammatory language, and asking Ryan to admit that Ryan was currently unemployed. None of these arguments have any merit. Over 100 discovery requests, as a combination of different forms of discovery, is typical in cases such as this. While Nelly’s attorney could have chosen different terms to use in his meet and confer letter, other than “mean-spirited texts” and “self-serving subset of documents”, the language used is not so improper that it implicates the need for a protective order or any other sanctions. Asking Ryan to admit that he is unemployed is addressed above and is a perfectly acceptable RFA given the circumstances of this case.

Ryan then argues that Nelly’s counsel misused the privilege objection in communications involving McGinnis. If Ryan believed that the privilege was improperly invoked, he could have filed an appropriate motion. However, asking this court to issue a protective order and appoint a discovery referee, without more, is not reasonable.

Ryan’s final two arguments, that Nelly’s discovery responses “contain probable falsehoods”, and that “fiduciary counsel have failed to respond”, are likewise without merit.

Further, Ryan failed to provide a meet and confer declaration as required by Code of Civil Procedure sections 2017.020, subdivision (a) and 2016.040.

“The court shall impose a monetary sanction . . . 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., § 2017.020, subd. (b).)

Ryan’s motion was completely without justification and had no merit. There are no other circumstances that make the imposition of sanctions unjust. Sanctions are appropriate and will be awarded in favor of the opposing parties.

However, the court finds that the motion was not complex and a reasonable time for preparing opposition and attending the hearing is 4 hours. Nelly’s attorney charges $825 per hour, which this court finds reasonable given his qualifications, and the attorneys for Skov and Dalton charges $825 for attorney Katz (who spent one hour in preparing the opposition and one hour preparing for and attending the hearing) and $550 per hour for attorney Saunders (who spent four hours in preparing the opposition and supporting papers). The court also finds these fees reasonable given Katz’s and Saunders’ qualifications.

Nelly will be awarded attorney’s fees in the amount of $3,300.00. Skov and Dalton, collectively, will be awarded attorneys’ fees of $2,750.00 (2 hours for Katz’s time and 2 hours for Saunders’ time).