Matter of Nelly Mercado and Albert N Mercado Trust
Matter of Nelly Mercado and Albert N Mercado Trust
Case Number
24PR00029
Case Type
Hearing Date / Time
Thu, 02/19/2026 - 09:00
Nature of Proceedings
Motion: Compel; Motion: Relief; Motion for Terminating Sanctions Against Petitioner
Tentative Ruling
(1) Petitioner Ryan Mercado’s motion for relief from order entered November 13, 2025, is denied.
(2) Respondent Nelly Mercado’s motion for terminating sanctions is denied. This ruling is without prejudice to respondent Nelly Mercado filing an additional motion for further, incremental sanctions if petitioner Ryan Mercado does not serve the outstanding discovery responses required by the November 13 order on or before March 5, 2026.
Background:
(1) Ryan’s Verified Petition
The parties in this action dispute who can properly act as trustees for The Nelly Mercado (Nelly) and Albert N. Mercado (Albert N.) Trust, established on November 5, 1993, amended and restated on August 20, 2021 (Trust), as well as certain decisions that were made by persons acting as trustees. Petitioner Ryan Mercado (Ryan) is the grandson of Nelly and Albert N. and a residuary beneficiary of the Trust. (Pet., ¶ 3.) Nelly and Albert N. were the original co-trustees. (Pet., Ex. A.) (Note: Due to common surnames, the court refers to some individuals by their first names or abbreviations for clarity. No disrespect is intended.)
After Albert N.’s death and the death of a subsequent co-trustee, Nelly’s son Giancarlo Mercado (Giancarlo), Ryan contends that effective January 22, 2023, Nelly appointed another of Nelly’s sons, Albert William Mercado (Albert W.) – Ryan’s father – as co-trustee of the Trust. (Pet., ¶ 20.) On February 10, 2023, Nelly and Albert W. executed a notarized affidavit of change of trustee and recorded it. (Pet., ¶ 22, Ex. 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., ¶¶ 3, 25, Ex. D.)
On September 26, 2023, Nelly purportedly resigned as trustee and unilaterally appointed private professional fiduciaries Tamara Skov (Skov) and Shannon Dalton (Dalton) as successor co-trustees of the Trust. (Pet., ¶ 29, Ex. E.) Respondents Skov and Dalton of Quinn Fiduciary Services purport to act as co-trustees of the Trust. (Pet., ¶¶ 7, 8.) Nelly appointed them without Albert W.’s consent or approval, which is not allowed under the terms of the Trust. (Pet., ¶ 34.)
Nelly is declining to fund the decedent’s trust which was required upon the death of Albert N. 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.)
Ryan alleges causes of action for (1) a report and accounting, (2) an order ascertaining trustees and instructions 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. (Pet.)
(2) Nelly’s Verified Response
Nelly filed a verified response to the petition on March 25, 2024 (Nel. Resp.). According to Nelly, immediately following Giancarlo’s death, Albert W. and petitioner Ryan saw an opportunity to capitalize on Nelly’s grief and began attempting to take control of the Trust away from Nelly. (Nel. Resp., ¶ E.)
Nelly was made aware of Giancarlo’s death on January 22, 2023, one day after he died. (Nel. Resp., ¶ F.) That same day, without giving Nelly any time to process the death of her son Giancarlo, Albert W. (another of her sons) and petitioner Ryan (her grandson) allegedly told Nelly that she had to have a co-trustee and that it needed to be Albert W. (Nel. Resp., ¶ F.) In her grief, and under the influence of Albert W. and Ryan, and not understanding the legal ramifications of her decision, Nelly signed a document presumably drafted by the family attorney, which named Albert W. as co-trustee. (Nel. Resp., ¶ F.)
On April 4, 2024, while Nelly was still overwhelmed by the loss of her son, she was presented with a document naming petitioner Ryan as successor trustee in the event of Nelly or Albert W.’s death or incapacitation. (Nel. Resp., ¶ G.) Nelly alleges she has no recollection of signing the document but concedes it appears to have been executed. (Ibid.) As alleged by Nelly, she would not have, and did not, willingly named Ryan as successor trustee. (Nel. Resp., ¶ H.)
With the help of new counsel, Nelly appointed Skov and Dalton (of Quinn Fiduciary Services) as successor co-trustees of the Trust. (Nel. Resp., ¶ I.) Pursuant to that same document, Nelly resigned as co-trustee, leaving Skov and Dalton as the sole co-trustees of the Trust. (Nel. Resp., ¶ I.) Nelly specifically removed Albert W. as a purported co-trustee and Ryan as successor trustee, to the extent they claimed to have been validly appointed. (Nel. Resp., ¶ J.)
(3) Skov and Dalton’s Verified Response
Respondents Skov and Dalton filed a verified response to the petition on March 22, 2024 (S&D Resp.). Skov and Dalton allege they are neutral, licensed professional fiduciaries appointed as trustees of the Trust via a document executed by Nelly as surviving settlor and trustee on September 26, 2023. (S&D Resp., ¶ A.) The document recites that Nelly has the authority to appoint respondents as trustees. (Ibid.) Relying on the truth and accuracy of such recitals, respondents Skov and Dalton accepted appointment as trustees. (Ibid.)
At the time of their appointment, respondents Skov and Dalton did not know, nor did they have any reasonable basis to suspect, that their appointment might be subject to dispute. (S&D Resp., ¶ B.) Since the date of their appointment, respondents have at all times acted professionally and in good faith to administer the Trust. (Ibid.)
Respondents Skov and Dalton concede they have a duty to account for the period of their administration, which began on September 26, 2023. (S&D Resp., ¶ F.) Respondents have no duty to account for any period predating their appointment. (Ibid.) Nonetheless, they have repeatedly offered to assist with the preparation of an accounting dating back to the death of Albert N. on October 26, 2022, which is precisely what petitioner demands. (Ibid.)
Similarly, respondents Skov and Dalton have offered to assist in completing the post-death division of Trust assets between the decedent’s trust and the survivor’s trust. (S&D Resp., ¶ G.) Respondents are neutral, licensed professional fiduciaries. (S&D Resp., ¶ H.) The intra-family dispute is not theirs to fight. (Ibid.) There is no reasonable basis upon which respondents should be removed or punished for their good faith efforts to serve in the position to which they believed they were validly appointed. (Ibid.)
(4) The Court’s November 13, 2025, Order
On November 13, 2025, the court granted seven motions to compel discovery requiring Ryan to serve discovery responses: (1) S&D’s motion to compel responses to form interrogatories, set one, and special interrogatories, set one; (2) S&D’s motion to compel responses and responsive documents to requests for production, set one; (3) S&D’s motion to compel further responses to form interrogatories, set two; (4) Nelly’s motion to compel responses to special interrogatories, set two, and form interrogatories, set two; (5) Nelly’s motion to compel responses and responsive documents to requests for production, set two; (6) Nelly’s motion to compel compliance with the court’s July 31, 2025, order regarding requests for production; (7) Nelly’s motion to compel compliance with the court’s July 31, 2025, order regarding requests for admission No. 50 and form interrogatory No. 17.1. The court denied Nelly’s motion to deem matters admitted in requests for admission, set two. The court awarded monetary sanctions payable by Ryan as to some of the motions, but in an amount that was less than requested by respondents. All supplemental responses and sanctions were due on or before December 11, 2025. The second accounting was also settled, allowed, and approved.
(5) Discovery Motions at Issue in this Hearing
On December 10, 2025, Ryan filed a motion seeking relief from the requirements of the November 13, 2025, order. Ryan argues that the court did not reference all of his filings in the court’s tentative ruling or in the court’s minute order, or discuss them at the hearing. Ryan argues that “[t]he rulings were entered under a mistaken understanding of what had been filed and reviewed.” Ryan argues that “[r]espondents filed four duplicative motions relating to the same issue, creating procedural confusion,” and that “[s]anctions were granted without evidentiary support.” Ryan seeks relief pursuant to Code of Civil Procedure section 473, subdivision (b). This motion is opposed.
On January 21, 2026, Nelly moved for terminating sanctions against Ryan because he failed to serve supplemental responses required by the court’s November 13, 2025, order, and previously failed to comply with the court’s July 31, 2025, discovery order. Nelly requests that the court award further monetary sanctions. This motion is opposed.
Analysis:
(1) Ryan’s Motion for Relief from November 13 Order / Reconsideration
Ryan has requested that the court grant him relief from the court’s November 13, 2025, order under Code of Civil Procedure section 473, subdivision (b). Section 473, subdivision (b), pertains to relief from mistakes made by a party or counsel. (Code Civ. Proc., § 473, subd. (b).) That is not what Ryan is seeking from the court. Here, Ryan is requesting that the court reconsider a prior order affecting him because he argues the court failed to properly consider his arguments. This is a motion for reconsideration governed by Code of Civil Procedure section 1008, not section 473, subdivision (b).
“When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.” (Code Civ. Proc., § 1008.)
The court’s docket reflects that Ryan was served with a notice of ruling and a copy of the court’s November 13 order on November 17, by mail and by email. (See Notice of Ruling, filed November 17, 2025.) All the issues raised by Ryan’s current motion existed as of the November 17 notice of ruling. Ryan’s motion at issue here was filed on December 10, 2025, 23 days later. Ryan’s motion for reconsideration is untimely and the court denies his motion on this basis. (Code Civ. Proc., § 1008.)
Moreover, even if with court were to reconsider the merits of the various discovery motions, contrary to Ryan’s arguments, the court noted at the hearing it reviewed and considered Ryan’s filings: “THE COURT: I’m going to pause you there, because I read the papers.” (Nelly’s Opposition to Ryan’s Motion for Relief from Order, Ex. A [Reporter’s Transcript], p. 12, ll. 7-12.)
The court noted in its November 13 tentative ruling and minute order that it reviewed Ryan’s oppositions and objections as to the discovery motions: “Ryan filed an opposition to the motion to deem as admitted certain requests for admission. Ryan did not file oppositions to any of the other [discovery] motions but did file a document styled as objections to multiple motions to compel filed by counsel for Nelly.” (Minute Order, November 13, 2025, Background, § 4.)
As to Ryan’s opposition, the court denied Nelly’s motion to deem the requests for admissions as admitted after noting the opposition filed by Ryan. (Minute Order, November 13, 2025, Analysis, § 8 [“Ryan opposed the motion on the grounds that he served the responses two days after this motion was filed.”].) The court also denied Nelly’s request for sanctions as to this motion. (Ibid. [“Under the circumstances present here, the court declines to award monetary sanctions.”].)
As to Ryan’s objections, the court’s November 13 order stated in part: “On October 21, 2025, petitioner Ryan filed a document entitled ‘objections to respondent’s multiple motions to compel and for sanctions (filed by Excello Law LLP) and notice of counsel conduct,’ which was read and considered as part of the court’s evaluation of the discovery motions at issue in this order. (Pet. Objections.) Ryan objects to how opposing counsel is being compensated and on the grounds that the motions filed by counsel for respondent Nelly are unmeritorious or unnecessary, and were filed without substantial justification. The points advanced by Ryan do not change the court’s reasoning and analysis herein.” (Minute Order, November 13, 2025, Analysis, § 9.)
The court noted at the hearing that it also considered Ryan’s late-filed November 10 objection, albeit not in great depth given the belated date of this filing. (Reporter’s Transcript, p. 15, ll. 6-7 [“The only thing that wasn’t reviewed in great depth is the November 10 matter.”].) The court notes this November 10 objection was filed by Ryan three court days before the November 13 hearing rather than the required nine court days. (See Code Civ. Proc., § 1005, subd. (b) [“All papers opposing a motion so noticed shall be filed with the court and a copy served on each party at least nine court days … before the hearing.”].)
As to the “proofs of service” filed by Ryan on September 29, 2025, there are no discovery responses attached to these filings. These documents do not list the serving party or responding party of the discovery. The court cannot determine what was served by Ryan, if anything, that pertains to the motions at issue. This is not evidence. Ryan’s November 10 objection likewise did not attach any responses or supplemental responses to the discovery at issue.
The motions to compel and requests for monetary sanctions were supported by declarations submitted by the moving attorneys seeking those sanctions. The court provided citations to these declarations as to each motion. (Minute Order, November 13, 2025, Analysis, §§ 1-7.) The court took into consideration the circumstances and awarded sanctions in an amount that was substantially lower than requested by the moving parties. (Ibid.)
The court notes that Ryan made various arguments in his current motion about the discussion at the November 13 hearing, but did not submit the transcript. Ryan indicated he would “submit supplemental exhibits and transcript excerpts prior to the hearing,” but the court’s docket does not reflect that these documents were filed by Ryan. (Ryan’s Motion for Relief from Order, p. 2.) Ryan has the burden of proof as to his motion but failed to submit this evidence. (Evid. Code, § 500.)
As to the second accounting, the court noted at the November 13 hearing that it considered and rejected Ryan’s objections: “THE COURT: Well, it doesn’t appear to the Court that that objection is well taken. The issues are legal rather than factual. So rather than bounce this downstream, I’m inclined to approve it, and we’ll take it from there.” (Reporter’s Transcript, p. 15, ll. 25-28.) The court noted at the November 13 hearing it considered Ryan’s flings including those related to the second accounting. (Reporter’s Transcript, p. 12, ll. 7-12, p. 15, ll. 6-7.)
Ryan’s request for reconsideration is untimely and there are no new or different facts, circumstances, or law presented by Ryan’s motion. Even if the court reconsidered the merits, it would not amend its November 13 order. For all these reasons, Ryan’s motion for relief from the November 13, 2025, order is denied.
(2) Nelly’s Motion for Terminating Sanctions
“California discovery law authorizes a range of penalties for a party’s refusal to obey a discovery order, including monetary sanctions, evidentiary sanctions, issue sanctions, and terminating sanctions. [Citations.] A court has broad discretion in selecting the appropriate penalty …. [¶] Despite this broad discretion, the courts have long recognized that the terminating sanction is a drastic penalty and should be used sparingly. [Citation.] A trial court must be cautious when imposing a terminating sanction because the sanction eliminates a party’s fundamental right to a trial, thus implicating due process rights. [Citations.] The trial court should select a sanction that is ‘tailor[ed] ... to the harm caused by the withheld discovery.’ [Citation.] ‘[S]anctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.’ [¶] The discovery statutes thus ‘evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.’ ” (Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)
Here, the record reflects that Ryan attempted to file an ex parte application on December 10, 2025, pertaining to the arguments he made in his motion for relief from the November 13 order. It appears that Ryan, a self-represented litigant, is under the mistaken belief that the court’s November 13, 2025, order was stayed by his motion filed on December 10 (it was not). As to the July 31, 2025, order, the court notes that the record indicates there was partial compliance with that order.
At this time, the court declines to issue further sanctions but the court expects Ryan to promptly serve the outstanding discovery responses as previously ordered by the court. However, this ruling is without prejudice to Nelly filing an additional motion for further, incremental sanctions if Ryan does not serve these outstanding responses on or before March 5, 2026. This approach is tailored to the circumstances before the court.
For all these reasons, Nelly’s motion for terminating sanctions is denied.