Separate Statement

Cal. Super. - 6th Dist.January 24, 2018

1 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dean Lloyd, Esq. [SBN 104647] Michael Tsivyan, Esq. [SBN 322003] LAW OFFICES OF DEAN LLOYD 425 Sherman Avenue, Suite 330 Palo Alto, California 94306 Telephone: (650) 328-1664 Facsimile: (650) 328-1666 Email: legaljaws@gmail.com Attorneys for Plaintiffs, SUSAN ABERTH, GEORGE ABERTH, and DIANE HAZELWOOD SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA CIVIL DIVISION GEORGE ABERTH, an individual, SUSAN ABERTH, an individual, and DIANE HAZELWOOD, an individual, Plaintiffs, v. ALICE ABERTH, an individual, ALICE ABERTH, Personal Representative of William Aberth and ALICE ABERTH, Trustee of the 2004 Aberth Family Trust dated December 13, 2004, Restatement dated June 30, 2017, and DOES 1-15, inclusive, Defendants. Case. No.: 18CV322275 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS Date: March 5, 2019 Time: 9:00am Dept.: 2 Judge: Hon. Mark H. Pierce Plaintiffs provide the following statement pursuant to Rule 3.1345 of Rules of Court: I. BACKGROUND A. Pertinent allegations in the First Amended Complaint This suit is brought by GEORGE ABERTH (“George”), SUSAN ABERTH (“Susan”) and DIANE HAZELWOOD (“Diane”), three children from the first marriage of decedent William Aberth (“Bill”). Plaintiffs sue Bill’s second wife, ALICE ABERTH (“Alice”), in her Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/10/2018 12:27 PM Reviewed By: L Del Mundo Case #18CV322275 Envelope: 2259454 2 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 individual capacity, in her capacity as the executor of Bill’s estate, and in her capacity as a trustee holding legal title to certain property in which Plaintiffs claim interests. In 1994 Bill’s first wife passed away. In 1997 Bill married Alice, who from her prior marriage had four children. In 2004 Bill and Alice put their properties into a revocable trust (“the 2004 Trust”) as joint settlors and trustees, naming all their seven children as beneficiaries. As Bill’s health deteriorated, Alice took control over Bill’s financial affairs. In September 2017 Bill passed away. He left a will naming Alice as the executor of his estate and pouring over all of his property that had not already been in the 2004 Trust to that trust. In January 2018 Plaintiffs filed the instant action. The FAC alleges that Alice unlawfully converted Bill’s separate property, including a condominium located in San Mateo, California, which was originally owned by Bill’s brother Berthold Aberth (“Bert”), and which passed to Bill after Bert died leaving a will pouring over all assets to a trust and naming Bill as the executor and trustee of that trust. Plaintiffs alleged they were among the named beneficiaries of Bert’s trust. Plaintiffs further alleged that after Bert had died, without Bill’s knowledge Alice sold the condominium for over $325,000, kept the proceeds to herself, gave $5,000 to each of her four children, and instead of giving $10,000 to each Plaintiffs she distributed only $5,000 misrepresenting that Bert’s estate had insufficient funds to make full distributions. These allegations are the basis of: • the 7th cause of action for Alice’s financial abuse of elder. • the 8th cause of action for Alice’s breach of fiduciary duty owed to Bill. • the 9th cause of action for Alice’s conversion of Bill’s separate property. • the 11th cause of action for Alice’s undue influence. • the 12th cause of action for Alice’s constructive fraud of Bill’s assets. • the 20th cause of action for Alice’s and Bill’s joint liability for comingling of assets of Bert’s trust and Bill’s breach of fiduciary duty to Plaintiffs as beneficiaries of Bert’s trust. 3 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. Pertinent contentions in the demurrer and the opposition thereto On September 6, 2018 Defendants filed the demurrer to the FAC with a hearing date set for December 11, 2018. In the memorandum of points and authorities, the 7th cause of action was not challenged. The 8th, 9th, 11th and 12th causes of action were challenged on the ground Plaintiffs have no standing because Plaintiffs are neither Bill’s personal representative nor his successor in interest. The 20th cause of action was challenged on the ground that Plaintiff improperly brought the claim against Bill’s estate by asserting it against Alice as a personal representative even though Alice has never been appointed as such. On November 27, 2018 Plaintiffs filed the opposition to the demurrer. With respect to the 8th, 9th, 11th and 12th causes of action, Plaintiff argued that they do have standing under certain case law not pertinent here. With respect to the 20th cause of action, Plaintiffs acknowledged that since all of Bill’s property passed outside of probate, all causes of actions against Bill’s estate-including the 20th cause of action-should have been brought not against Alice as a personal representative of Bill’s estate, but against Alice as a successor in interest to Bill’s property, i.e. in her capacity as a trustee. Because Alice as a trustee is already a party to the action, Plaintiffs argued the defect was minor and could be easily cured by amending the FAC. C. Dispute over attorney-client privilege On October 1, 2018 Defendants’ attorney Angela Hoffman notified Plaintiffs’ attorney Dean Lloyd that certain documents Mr. Lloyd obtained from Bill’s attorney violated attorney- client privilege. It appeared as if Ms. Hoffman argued that Alice was the privilege holder because she was a personal representative of Bill’s estate. Mr. Lloyd requested to clarify whether Ms. Hoffman reversed her position taken in the demurrer that Alice was not a personal representative of Bill’s estate. Ms. Hoffman clarified that she did not reverse her position, and that Alice was the privilege holder not under Defendants’ theory, but under Plaintiffs’ theory. On October 5, 2018 Mr. Lloyd responded that Plaintiffs agree with Defendants’ view that Alice Aberth is not the privilege holder, for “[h]aving read your demurrer, we found persuasive your argument that since Alice was not appointed as the personal representative, she should not be regarded as such. Since we have no disagreements, we believe the matter has been resolved.” 4 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. INTERROGATORIES AND RESPONSES IN DISPUTE On September 6, 2018 Plaintiff propounded the first set of special interrogatories of which only twelve are pertinent to the instant motion: 1-4, 29-31, 34-36, 44-45. A. Interrogatories 1-4, 34-36, 44-45 SPECIAL INTERROGATORY NO. 1: Did the beneficiaries of the Berthold Aberth Trust dated May 31, 2006 (the “Berthold Aberth Trust”) receive their distributions as set forth in the Trust? Please refer to the Berthold Aberth Trust attached as Exhibit A. SPECIAL INTERROGATORY NO. 2: Please state the name of each person or entity who received a distribution from the Berthold Aberth Trust and how much each person or entity received. SPECIAL INTERROGATORY NO. 3: Were assets from the Berthold Aberth Trust distributed to people or entities not listed as beneficiaries in the Trust? SPECIAL INTERROGATORY NO. 4: Did William Aberth distribute assets from the Berthold Aberth Trust to people or entities not listed as beneficiaries in the Trust? SPECIAL INTERROGATORY NO. 34: Was an accounting pursuant to California Probate Code § 16063 performed for the Berthold Aberth Trust? SPECIAL INTERROGATORY NO. 35: If the answer to Interrogatory No. 34 is “yes”, was the accounting sent to the beneficiaries of the Berthold Aberth Trust? SPECIAL INTERROGATORY NO. 36: If the answer to Interrogatory No. 35 is “yes”, please provide the names and contact information of each person who was provided with an accounting. SPECIAL INTERROGATORY NO. 44: Did any of the SCHWARTZ CHILDREN receive any property from Berthold Aberth’s Estate after Berthold Aberth’s death on January 17, 2011? SPECIAL INTERROGATORY NO. 45: If the answer to Interrogatory No. 44 is “yes”, please state the name of each recipient and the amount each recipient received. The term “SCHWARTZ CHILDREN” was defined as all of Alice’s four children from her prior marriage. On October 10, 2018 Defendants provided responses to the special interrogatories quoted above. // // // 5 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONSE TO SPECIAL INTERROGATORY NO. 1: Defendant incorporates the General Objections as if fully set forth in this interrogatory response. Defendant further objects that this interrogatory is overbroad, burdensome, oppressive, not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of relevant evidence, and intended solely to harass. Defendant was not the trustee of the Berthold Aberth Trust, nor did she administer Berthold Aberth’s estate. Plaintiff’s claims regarding Berthold Aberth’s estate and/or trust seek to recovery for conduct by non-party William Aberth, on the theory that Defendant was the personal representative of William Aberth’s estate. However, as explained in Defendant’s demurrer, these claims fail as a matter of law because Defendants was never appointed as personal representative. Plaintiffs (through counsel) admitted this fact in a latter date October 5, 2018: “since Alice Aberth was not appointed as the personal representative, she should not be regarded as such.” Given Plaintiffs’ admission that claims regarding Berthold Aberth’s estate and/or trust are baseless as against Defendant, the administration of Berthod Aberth’s estate and/or trust exceed the scope of permissible discovery. The responses to special interrogatories No. 2, 3, 4, 34 and 44 are identical to the response quoted above to the special interrogatory No. 1. RESPONSE TO SPECIAL INTERROGATORY NO. 35: Defendant incorporates the General Objections as if fully set forth in this interrogatory response, and further incorporate the objections set forth in response to Interrogatory No. 34. Subject to these objections, Defendant responds that this interrogatory is not applicable because Interrogatory No. 34 was not answered “yes.” RESPONSE TO SPECIAL INTERROGATORY NO. 36: Defendant incorporates the General Objections as if fully set forth in this interrogatory response, and further incorporate the objections set forth in response to Interrogatory No. 34. Subject to these objections, Defendant responds that this interrogatory is not applicable because Interrogatory No. 34 was not answered “yes.” RESPONSE TO SPECIAL INTERROGATORY NO. 45: Defendant incorporates the General Objections as if fully set forth in this interrogatory response. and further incorporate the objections set forth in response to Interrogatory No. 44. Subject to these objections, Defendant responds that this interrogatory is not applicable because Interrogatory No. 44 was not answered “yes.” In subsequent meet-and-confer communications, Ms. Hoffman insisted that in the letter of October 5, 2018 Mr. Lloyd purportedly “conceded” that certain claims fail or “acknowledged” they were baseless. Mr. Lloyd disagreed stating that Plaintiffs merely agreed with the “premise” of the dismissal argument made in the demurrer and referred to in responses to special interrogatories No. 1-4, 34-36, 44-45. “We never agreed with the argument itself or its conclusion. We never ‘conceded’ or ‘acknowledged’ that any claim fail. We do not share Mrs. 6 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Hoffman’s opinion that the premise makes the argument irrefutable. We believe the argument is refutable and its conclusion is wrong. However, as we explained on page 3 of the October 23 letter, Mrs. Hoffman has no right to demand from us as a condition for discovery an explanation of how we will refute that particular argument or otherwise overcome the demurrer.” B. Interrogatories 29-30 SPECIAL INTERROGATORY NO. 29: Were the assets received from the Berthold Aberth Trust maintained in a separate account? SPECIAL INTERROGATORY NO. 30: If the answer to Interrogatory No. 29 is “yes”, state the name(s) of the financial institution(s) and the account number(s) in which the assets were held. The response to interrogatory No. 29 is exactly the same as the response to interrogatory No.1 quoted above except one additional sentence: “Defendant objects to this interrogatory as vague and ambiguous on the basis that ‘the assets received from the Berthold Aberth Trust’ fails to identify which assets from Berthold Aberth’s trust are being referred to.” The response to interrogatory No. 30 is the following: RESPONSE TO SPECIAL INTERROGATORY NO. 30: Defendant incorporates the General Objections as if fully set forth in this interrogatory response. and further incorporate the objections set forth in response to Interrogatory No. 29. Subject to these objections, Defendant responds that this interrogatory is not applicable because Interrogatory No. 29 was not answered “yes.” In the letter of October 23, 2018 Plaintiffs clarified that “the interrogatory refers to all assets which were held in the Berthold Aberth Trust and which, after his death, were in William Aberth’s or Alice Aberth’s possession or control.” In the letter of November 1, 2018 Defendants responded: “In any event, Defendant’s objections stand. For example Defendant did not administer Berthold Aberth’s estate or his trust, nor are the claims premised thereon viable given that they arise from William Aberth’s purported misconduct and that is undisputed that Defendant is not the personal representative of William Aberth. Accordingly, there is no need to supplement these interrogatory responses.” // // 7 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Interrogatory 31 SPECIAL INTERROGATORY NO. 31: To which financial account(s) was/were the proceeds from the sale of the real property located at 1560A Day Ave., San Mateo, CA transferred after the real property was sold? Please provide the name(s) of the financial institution(s), account number(s), and the address(es) of the financial institution(s). RESPONSE TO SPECIAL INTERROGATORY NO. 31: Defendant incorporates the General Objections as if fully set forth in this interrogatory response. Defendant objects that this interrogatory is vague and ambiguous because its reference to “the sale of the [subject] real property” fails to identify the specific sale being inquired about. Defendant further objects to this interrogatory as being overbroad, burdensome, oppressive, and not relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence. The San Mateo property was never held by the Trust and, therefore, has no bearing on the dispute in this action, which challenges the disposition of Trust assets. On October 23, 2018 Plaintiffs clarified that special interrogatory 31 referred to the sale that occurred in 2011. Defendants continued objecting on the vagueness ground by explaining “there were multiple sales in 2011.” Plaintiffs clarified further that the interrogatory referred to the sale that “occurred on or about September 2011.” In the subsequent meet-and-confer communication, Defendants’ counsel indicated that Defendants object to this interrogatory on the same ground they object to the eleven interrogatories quoted above. D. Meet-and-confer communications with attorney Jonathan D. Wolf On November 8, 2018 Mr. Lloyd and Defendants’ attorney of record Jonathan D. Wolf had a telephone conference. They agreed that (1) Mr. Lloyd would receive supplemental responses to some interrogatories by November 30, 2018; and (2) the deadline for filing a motion to compel further responses would be January 15, 2019. With respect to the twelve interrogatories quoted above, Mr. Wolf made a “suggestion and offer” to stall the discovery until after the demurrer would be ruled upon. Mr. Lloyd rejected the “offer.” Mr. Wolf stated he would still not supplement responses to the twelve interrogatories until after the demurrer would be decided. Mr. Lloyd asked whether Defendants would move for a protective order. Mr. Wolf answered that he did not know because he expected Mr. Lloyd to be “more reasonable,” but later, however, he added that he “might reconsider and seek an ex parte protective order,” but was unsure whether he would want to spend his client’s money on that. Mr. Lloyd explained that 8 PLAINTIFFS’ STATEMENT OF INTERROGATORIES AND RESPONSES IN DISPUTE IN SUPPORT OF MOTION FOR ISSUE AND MONETARY SANCTIONS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stalling the discovery would violate the case law cited in the meet-and-confer letters, and asked whether Mr. Wolf had read the case. Mr. Wolf responded that he “appreciate[s] that,” that his proposal “seems like putting a cart before the horse,” but in his opinion this was a “practical solution that makes sense.” Mr. Lloyd warned Mr. Wolf about sanctions for stalling discovery, and Mr. Wolf responded: “We’ll take our chances.” Mr. Wolf stated that by the time Mr. Lloyd’s motion to compel would be heard, the outcome on the demurrer would be known, and if Defendants lose they would provide the supplemental responses to the twelve interrogatories before the hearing on the motion to compel, so Plaintiffs would be unable to show prejudice and obtain sanctions. On November 15, 2018 Mr. Lloyd sent a letter to Mr. Wolf summarizing the November 8 telephone conversation. Because Mr. Wolf sent mixed messages by first stating that he would not seek a protective order, but then indicating that he “might reconsider,” Mr. Lloyd gave Mr. Wolf one week to make up his mind: “Unless you notify us within one week that you have reconsidered, i.e. that you will either seek a protective order or provide supplemental responses by 11/30/2018 to each of the interrogatories above, we will move for sanctions pursuant to CCP § 2023.010(b), (d), (e), and CCP § 2023.030(a), (b).” On November 20, 2018 Mr. Wolf sent a letter in which he made certain clarifications and again requested to defer the responses to the twelve interrogatories “until after the hearing on the demurrer.” On the next day Plaintiffs rejected the request “for the reasons stated in our prior letters. We still intend to seek sanctions pursuant to CCP § 2023.010(b), (d), (e), and CCP § 2023.030(a), (b).” On December 3, 2018 Plaintiffs received by mail Defendants’ supplemental responses to certain interrogatories, which did not include the twelve interrogatories quoted above. As of this writing, Defendants have not supplemented the responses to those twelve interrogatories. DATE: December 10, 2018 By: /s/ Michael Tsivyan Michael Tsivyan, Attorney for Plaintiffs SUSAN ABERTH, GEORGE ABERTH, and DIANE HAZELWOOD