Sharon Morgan vs. Mark R. Estacion

Reply to Motion

Cal. Super. - 4th Dist.March 11, 2016

© 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o Melinda M. Luthin, Esq. SBN 254071 MELINDA LUTHIN LAW 2721 East Coast Highway, Suite 201 Corona del Mar, California 92625 p. 949.673.1161 Attorneys for Defendants Reservation No. 72477182 Mark R. Estacion, Richard A. Estacion, & Scott A. Estacion SUPERIOR COURT OF THE STATE OF CALIFORNIA, COUNTY OF ORANGE CENTRAL JUSTICE CENTER SHARON MORGAN IN HER REPRESENTATIVE CAPACITY ASTHE EXECUTOR OF THE ESTATE OF DORTHA L.LAMB Plaintiff, VS. MARK R.ESTACION, IN HIS REPRESENTATIVE CAPACITY ASTHE ADMINISTRATOR OF THE ESTATE OF ABELARDO ESTACION; MARK R. ESTACION, AN INDIVIDUAL; RICHARD A. ESTACION, AN INDIVIDUAL, AND SCOTT A.ESTACION,AN INDIVIDUAL, AND DOES 1 through 100, inclusive, Defendants. Case No.: 30-2016-00840248 Assigned To: Hon Andrew Banks DEFENDANTS’ REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR ORDER IMPOSING MONETARY SANCTIONS AGAINST PLAINTIFF SHARON MORGAN AND HER ATTORNEY CHARLES MILLS FOR DISCOVERY MISUSE AND FRIVOLOUS BAD-FAITH AND/OR DELAYING ACTIONS AND TACTICS [filed concurrently with Evidentiary Objections; Declaration of Melinda M. L uthin & Exhibits] CaseFiled: March1l, 2016 FAC Filed: June 28, 2016 SAC Filed August 10, 2016 Hearing Date: January 27, 2017 Hearing Time: 1:30 p.m. Dept.: Cll DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o TABLE OF CONTENTS 1. PLAINTIFF’S OPPOSITION FAILS TO NEGATE PROOF SUPPORTING SANCTIONS coin 1 A. Plaintiff Proffered No Admissible Evidence To Support Her Opposition .........ccccevveiiieeiieciieineene, 1 B. Plaintiff’s Contention That The Motion Is Premature, Is MEIitIess ........ccvvvviiiiiiiiiiiiiiiiiiineeennninn, 2 C. Plaintiff’s Reliance On An Unpublished Trial Court Order Is Improper ............ccoovvvveeiiiinieniiiiinnnns 2 D. Plaintiff’s Conclusory Statements Do Not Rebut Evidence Of Sanctionable Conduct ............ccccevenen, 2 E. Plaintiff Failed To Rebut The Valid Evidence Supporting CCP § 128.5 Sanctions..........cccccvevvvvvennnn, 3 F. Plaintiff Failed To Rebut The Valid Evidence Supporting CCP § 2023.030 Sanctions ...........ccccevennie. 3 2. THE FALSE STATEMENTS INTHE SWORN OPPOSITION CONFIRM THAT PLAINTIFF AND HER ATTORNEY MUST BE SANCTIONED ....commmmmmmmmmmmmmn ss6 A. Plaintiff's False Statements About The Probate Proceedings Are Further ProofThat Sanctions Against Plaintiff And Her Attorney Are NECESSAIY ..ccvveiveeiie eee cie estes steers estes sees stresses sae este e anne e areas 6 B. Plaintiff’s False Character Attacks OfOpposing Counsel Support Sanctions...........c.ceeeervveeesiiinnennns 1 C. Plaintiff’s And Mr. Mills’s False Statements About Abelardo’s Murder Are Further ProofThat SANCHONS ATEN ECESSAIY ...vvirviisie cirri esteraseeeebeeen b ee b eee a ree a beast ee nb ee be anne nne es 1 (1) PlaintiffAdmits She Is A Suspect In Abelardo’s MUIAEr .........cccvviiviiiiiiiiiinieiesee nesses 8 (2) Mr. Mills’s Claim That Defendants” Counsel Is “[Un]ethic[al]” Is Unlawful ..........c.ccoeriivennnn, 8 3. PLAINTIFF’S OBJECTION TO THE AMOUNT OF FEES IS BASELESScocina9 A. PlaintiffProffered No ProofThat Defendants’ Requested Amount Is Not Reasonable ....................... 9 B. Published Cases Support Defendants’ Requested Sanctions AmMount.............ccevvviniriininininninnnen, 10 4, CONCLUSIONwisissssssssssassssssss sssssasansanssss10 TABLE OF CONTENTS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o TABLE OF AUTHORITIES Statutes Bus. & Prof. Code, § 6068...........cccoeviiiii8,9 Bus. & Prof. Code, § B128.........ccoiiiiiii 8 CHV. COR, §2224...es8-9 CHV. C008, §3517... 8-9 Cod CIV. PrOC., § 128.5...cccpassim Code CIV. ProC., §440...6 Code Civ. Proc, §119.1...7 Code Civ. ProcC., §1209...8 Code Civ. Proc., § 2020.240........cccuviiniiniii ii7 Code Civ. Proc., § 2020.330......cccimiminiiiii s7 Code Civ. Proc., § 2023.010......cccmviiiiiiii i 4,5 Code Civ. Proc., § 2023.020........cciviiniiiii s4 Code Civ. Proc., § 2023.030........cmiimiiiiii i 3,9 Code Civ. Proc., § 2025.440........c.ccoviiniiniii i7 EVid. COE, §350...2,7 EVI. COE, §352...2 EVI. COE, §B04...9 EVid. Code, §1220...5 EVIA. COTE, § 1221...bbbebbbbb5 PEN. CAE, §96.5...8 Pen. Code, §118...6 Pen. Code, § 118a.......ciiiiiiiiii6,78 Pen. Code, §125...7,8 TABLE OF AUTHORITIES © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o Statutes, Cont. PEN. COA, § 132.iii7 PEN. COA, § 134... 7 Prob. Code, 88 250-259...cuits9 PrOD. COAE, § 254...bb 9 Cases Am. Motorists Ins. Co. v. Sup. Ct. (1998) 68 CALAPD.AN 864.......cvvveerieeeriessiesssies sesssssesssssss s sss n ss n sssn sss e ss ns st eesnnsens 9 Bach v. McNelis (1989) 207 CalAPP.3A852...beepers3 Bleavins v. Demarest (2011) 196 CalAPP.Ath1533...3 Blum v. Sup. Ct. (2006) TAL CalLAPP.AEN ALB...eeeeeeesteseeeberste eer R ener ener eres 6 Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 CalAPP. 30 597 i12 City of Scotts Valley v. County of Santa Cruz (2011) 201 CalLAPPALN aereeeeeeeee R erate rebar estan enters 2 Codiga v. The State Bar (1978) 20 Cal. 30788...rereane7 Collisson & Kaplan v. Hartunian (1994) 21 CallAPPA LB1L.....ocicccccscereseessee b eb eeeb eerste Renee b eRe enter e bene rere re eas 4 Cornwall v. Santa Monica Dairy Co. (1977) 06 CalAPP.3A 250...cuitsbbe2,4 Cunha v. Anglo California Nat'l Bank (1939) 34 CalLAPP.20383...beepers5 David v. Abergel (1996) 46 CalAPPAIN 1281...eeeeeeeeeeeebeeensteerer rns 10 Doev. U.S. Swimming, Inc. (2011) 200 CalLAPPALN T4224...eersteseebeetsbeater eter beeen rens 3,4 Doppes v. Bentley Motors, Inc. (2009) 174 CalLAPP.AEN 967...eeesebbbibeee b erent eben rete e rennin 10 In re Marriage of Eustice (2015) 242 CalLAPP.AEN 1201...eeeeeeeeeeae e bearer nena 4 Evans v. Centerstone Development Co. (2005) 134 CalLAPP.AEN 151...iceeeeeeeeebeeeneben epee eer erent erent eres 9 i - TABLE OF AUTHORITIES © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o Cases, Cont. In re Marriage of Falcone (2008) 164 CalLAPP.AtN BLA...ceceeeeeeeeeeenters renee 6 Folsom Associates v. Prometheus D evelopment Co. (1990) 223 CAlAPP-30L ebbbe9 Graciano v. Robinson Ford Sales, Inc. (2006) 144 CalLAPP.AEN TAD...eeeeeeestes eset beets beet beset eben stern eterna 9 Graciano v. County ofL.A. (2013) 217 CALAPPAN 968.....vovvevevvirsssisssseesss sissiesssssesssassssssesssss 9 Horsford v. Bd. ofTees. ofCal. St. Univ. (2005) 132 CAlAPPAN 359...0..cviisssiieesieesssiessssss essessss sess sssesses9 Liberty Mutual Firelns. Co. v. LcL Admin., Inc. (2008) 163 CalAPP.Ath 1003...bere4,5 Lunad Biomedical v. Nunez (2014) 230 CALLAPP.ALN459...pres9 Mack v. Sup. Ct. (1968) 259 CAlAPP.2A 7eeeEberr eben 3 Marin v. J acuzzi (1964) 224 CalLAPP.2A549...eeeebenseat e ete R eer ner ns 10 Meyer v. | ohnson (1931) 115 Cal. APP.BAB...beepers9 Moreno v. City ofSacramento (9th Cir. 2008) 534 F.30 1106 ..uvveviiiieiiiiieieesie eases esses tebe states b eke s sete b eRe tebe Rete b eRe Renee R eet Renee R eet Renee eran rns 10 New Albertsons, Inc. v. Sup. Ct. (2008) 168 CalLAPP.Ath TAD3......occiiii b5 Nunez v. Pennisi (2015) 241 CalLAPP.ALN BBL...eeeeeeeeebeepers repeater eben rere ne eas 9 Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 CalLAPP.Ath 927...eeeeseeeb eee eb e ere b ener eben 1-2 Petri Cleaners, Inc. v. Automotive E mployees, etc., Local No. 88 (1960) 53 CAI.2A455...EEE1 Pierotti v. Torian (2000) BL CalAPPAR 17eecte te eee R erat eRe tebe R eet Reenter eas 9 Russell v Foglio (2008) 160 CALAPD.AN 653...co.vverecveesssisssssiesssssss ssssissiessassassins10 San Diegans for Open Government v. City ofSan Diego (2016) 247 CalAPPAR 1300.....c.ciciiicciicceseseeeeerste steers esate eet eerste reese sree nena ne eas 2,3,4 Sheeley v. Santa Clara (1963) 215 CalAPP.2A83...bppne 6 Sheldon Appel Co. v. Albert & Oliker (1989) AT Cal.30803...EEE2 Silcox v. Lang (1889) TCA 118...bbbEEREEEREebb 6 - Hl - TABLE OF AUTHORITIES © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o Cases, Cont. Smith, Smith & Kring v. Sup. Ct. (1997) B0 CalAPD. Ath573...prepne 1 Sporn v. Home Depot USA, Inc. (2005) 126 CalLAPP.AEN 1294...eeeseeseeeeeeReeeReenter eterna 2 Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 CalAPP.AEN 730... ives8 The Grande Holdings Limited (2011) 198 CalLAPP.AtN LAT0......coceeeeececesetebeee ete e bebe reste b ener eben see nens 10 Tri-State Mfg. Co. v. Sup. Ct. (1964) 224 CAlLADPP.2A 442...eeeeeetebebeetbere tebe reper e eterna 3 Tucker v. Pac. Bell Mobile Services (2010) 186 CalLAPP.AtN 1548... ii5 United Steelworkers v Retirement Income Plan (9th Cir 2008) S12 BF3d 55 10 Valley Bank of NV v. Sup. Ct. (1975) 15 Cal 3A B52.uiteeesbeebs bee b eer bebe b epee bere reee 3 West Coast Development v. Reed (1992) 2 CalLAPP.ALNB93...rrr2,8 Rules of Court RUIES OF COU, UIE 3.1300....0cu0cuiieiiiiiieesieieesessseessbeebs sbeebs bebe shea b sbeebs bebe bene be bere anis 1,3 RUIES OF COU, TUIB 8.1115.citiesebbsbeebs sbeebs bebe sbeebs saan sbeebs 2 Rules Professional Conduct RUIES Prof’ l, CONAUCE, FUIE 5-200 .....cviieeeeiieieiii seers terete steers sre srs esr e ete ss essa e sre esse shee see sbeebs sbeebs sre ete sree nse eres 8 - iv - TABLE OF AUTHORITIES © 0 0 N N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP F F P F R P P R = c o ~ N o o u i A W w W N N P O O V 0 0 N N o o u A O W N + , O o EXHIBIT 1 EXHIBIT 2 EXHIBIT 3 EXHIBIT 4 EXHIBITS Excerpts from deposition of Sharon M organ Ex parte application in OCSC Case No. 30-2015-00807011 Depictions ofDr. Who’s Time Machine E stacions application for order of contempt against the trustee ad litem in OCSC Case No. 30-2015-00807011 TABLE OF EXHIBITS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o 1 PLAINTIFF’S OPPOSITION FAILSTO NEGATE PROOF SUPPORTING SANCTIONS This case has been going on for nearly one year, yet Plaintiff has made no legitimate attempt to adjudicate it. She propounded no discovery. Shefiled two 11™-hour amendments to her complaint, neither of which comes close to pleading a cause of action. Instead, the complaint seeks redress for lawful conduct and contains outrageous defamatory allegations that serve only to smear the reputations of Defendants and their murdered father. Plaintiff's counsel refuses to meet or even speak with Defendant’s counsel. Plaintiff has drug out this meritless case in bad-faith for the sole purpose of delay and harassment. Plaintiff’s opposition to the sanctions motion (“Opposition”) exemplifies her sanctionable tactics. Instead of attempting to raise legitimate arguments against sanctions, Plaintiff used the Opposition for the purpose of continuing her harassment. The bulk of the Opposition consists of irrelevant ramblings that are cut and pasted from her other court papers. The only portions regarding the subject matter of this motion consist of generic recitations of (and misstatements regarding) the standards for granting sanctions motions (Opp. 91 2, 6-7), a statement that Plaintiff does not “understand” the motion (Opp. 19), unsupported claims that the motion is based on “speculation” (Opp. 19 4, 5), and conclusory denials of Plaintiff’s and her attorney’s meritless pleadings and bad-faith, harassing and delaying tactics (Opp. 191, 3, 9, 11). There is no doubtthat sanctions against Plaintiff and her attorney, Charles Mills are not only appropriate, they are necessary. A. Plaintiff Proffered No Admissible E vidence To Support H er Opposition Evidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown. (Rules of Ct, rule 3.1306(a).) There is no provision in the Code or Rules of Court granting evidentiary value to argument contained in a memorandum, and case law holds that “facts” contained in a memorandum have no evidentiary value and are not be considered in ruling on the motion. (Smith, Smith & Kring v. Sup. Ct. (1997) 60 Cal.App. 4th 573, 578; Petri Cleaners, Inc. v. Automotive Employees, etc., Local No. 88 (1960) 53 Cal.2d 455, 469 n. 5.) Plaintiff proffered no admissible evidence to support her opposition. Instead of providing reasoned argument and admissible evidence to support her opposition, Plaintiff tells the court to do Plaintiff’s job for her. (Opp. 95 [“it is impossible for Plaintiff to detail the speculation, and asks the Court to merely read the motion and declaration in order to see the patent speculation].) A trial court] is not required to be a tacit advocate for a party’s theories “by freeing it from any obligation to comb the 1 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o record and the law for factual and legal support that a party has failed to identify or provide.” (Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 393-934.) Where, as here, the party has “shirked its responsibilities” and provided the Court with “no basis on which to” grant the requested relief, the Court is justified in ruling in the other party’s favor. (/bid.; City of Scotts Valley v. County of Santa Cruz (2011) 201 Cal.App.4th 1, 26; Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 1303) Plaintiff>s failure to produce evidence in support of her opposition is fatal. (Ibid.; San Diegans for Open Government v. City of San Diego (“San Diegans™) (2016) 247 Cal.App.4th 1306, 1319; Cornwall v. Santa Monica Dairy Co. (1977) 66 Cal.App.3d 250, 252-253.) B. Plaintiff’s Contention That The M otion Is Premature, Is M eritless Plaintiff wrongly asserts, “Another element that makes the motion fail is that [sic] the underlying action has yet to be determined on its merits.” (Opp. 1 7.) Sanctions under section 128.5 are for the purpose of deterring frivolouslitigation and to compensate litigants who are the victims of frivolous litigation. (See West; Coast Dev. v. Reed (1992) 2 Cal.App.4th 693, 706-708.) Courts have both statutory and inherent authority to impose sanctions early in litigation for bad-faith, frivolous tactics to deter abuse of the judicial process. Sanctions provide “the most promising remedies” for curbing frivolouslitigation by deterring bad conduct and by the “early weeding out of patently meritless claims.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 873-874.) To rule that sanctions motions may only be heard after adjudication of the case would contravene the purpose of imposing sanctions. (Ibid.; West Coast Dev., supra, 2 Cal.App.4th 693, 708.) C. Plaintiff’s Reliance On An Unpublished Trial Court Order Is Improper Plaintiff spends a full page citing and discussing an unrelated trial court case (identified by Plaintiff as Conservatorship of Williams; Faulk v. Schulz, OCSC 30-2013-00666336-PR-CE-CJC [“Williams™]). (Opp. 1911-14.) None of the parties in Williams are parties here, and no matters adjudicated in Williams are matters in this case. Not only is Plaintiff’s citation to Williams improper, her request for the trial court to rely upon Williams is also improper. (Rules of Ct, rule 8.1115, subd. (b); In re Sena (2001) 94 Cal.A pp.4th 836, 839.) Defendants respectfully request the court not consider this improper matter, and strike it as irrelevant, prejudicial and not probative. (Evid. Code, § 350, 352.) D. Plaintiff’s C onclusory Statements Do Not Rebut Evidence Of Sanctionable C onduct Plaintiffs passing mentions of the standards for granting sanctions (Opp. 992, 11), conclusory claims 2 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o that the motion is “speculative,” “misleading,” and “untrue” and statements that the case is brought in good- faith and/or not brought in bad-faith (Opp. 91 3, 4, 11) and that her discovery responses were given in good- faith (Opp. 99), do not provide any support for her opposition. * (Tri-State Mfg. Co. v. Sup. Ct. (1964) 224 Cal.App.2d 442, 445; Mack v. Sup. Ct. (1968) 259 Cal.App.2d 7, 10; Valley Bank of NV v. Sup. Ct. (1975) 15 Cal. 3d 652, 658; see also Bach v. McNelis (1989) 207 Cal. App. 3d 852, 877, 879.) Nor do Plaintiff’s conclusory and rambling contentions regarding the merits of the case (Opp. 1121-62) save her from sanctions. Because Defendants’ provided unrebutted proof of Mr. Mills’s and Plaintiff’s sanctionable conduct, the motion should be granted. (San Diegans, supra 247 Cal.App.4th 1306, 1319; Doe v. U. S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1436.) E. Plaintiff Failed To Rebut TheValid E vidence Supporting CCP § 128.5 Sanctions If the party seeking sanctions has tendered some evidence showing potentially sanctionable conduct, the burden of producing evidence shifts to the party opposing the sanctions motion to refute the moving party’s prima facie case.” (San Diegans, supra, 247 Cal.App.4th 1306, 1319-1320.) Defendants produced ample evidence of Plaintiff’s and her counsel’s objective and subjective bad-faith, frivolous conduct, as well as evidence that their tactics were meritless and for the purpose of causing delay and harassment. Plaintiff proffered no evidence (or even argument) to rebut the presumption that their conduct is sanctionable under Code of Civil Procedure section 128.5. (See Bleavins v. Demarest (2011) 196 Cal.App.4th 1533, 1543 [conclusory references to “misrepresentations,” “abusive” conduct, “frivolous” motions, broken promises to “cooperate,” and fraudulent statements to provide “information” and “documents” are “insufficient to state a cause of action regardless of the legal relationship between the parties or, more precisely here, lack thereof”].) F. Plaintiff Failed To Rebut TheValid E vidence Supporting CCP § 2023.030 Sanctions Plaintiff claims that she “does not understand D efendant’s allegations regarding discovery abuse’....” (Opp. 19, p.3:14-15.) Plaintiff’s inability to understand the Discovery Act does not relieve her from the consequences of her discovery misuse. (See Code Civ. Proc., § 2023.030, subd. (a).) “Misuses of the discovery process include, but are not limited to... []...9] (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and ! Plaintiff claimsthis to be a subjective standard. (Opp. 911.) Plaintiff is wrong. “The standard of determining whether a lawsuit is frivolous is an objective one.” (Bach v. McNelis (1989) 207 Cal. App. 3d 852, 876.) 3 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o expense;] (d) failing to respond or to submit to an authorized method of discovery[;] [1] (f) making an evasive response to discovery; and “Failing to confer ... in a reasonable and good faith attempt” to informally resolve the dispute. (/d., § 2023.010, subds. (c), (d) (f) & (i)).) As detailed in the motion, Plaintiff's 1,351 page WAR AND PEACE? sized responses to form interrogatories as well as her 200 plus pages of responses to special interrogatories consist of improper, irrelevant and non-responsive matter and are wholly lacking in any substantive information. The responses caused unwarranted annoyance and oppression and undue burden and expense, in that Defendants’ counsel spent countless hours reviewing and unsuccessfully attempting to extract any meaningful information despite Defendants’ exhaustive meet and confer efforts. The responses to the targeted and specific requests are wholly evasive. For example, Plaintiff responded to virtually every interrogatory by identifying “All records from,” various hospitals, doctors, and financial institutions, even though many had nothing to do with medical issues or money. The only meaningful information obtained from the voluminous responses is that plaintiff has no evidence to support any of the allegations in her complaint. Plaintiff could have provided this information in one sentence. “A party cannot intelligently defend itself against affirmative defenses or damage claims when the other side’s discovery responses consist of legal doubletalk and provide no useful information.” (Liberty Mutual Fire Ins. Co. v. LcL Admin., Inc. (2008) 163 Cal.App.4th 1093, 1105.) The interrogatory responses are “evasive and quibbling. M ore bluntly stated, this was lawyer game playing atits worst.” (Collisson & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1617.) “A party seeking sanctions may rely on factually devoid discovery responses by the party opposing the sanctions motion to raise a reasonable inference the party opposing the sanctions motion lacks facts supporting its claims.” (San Diegans, supra, 247 Cal.App.4th 1306, 1319.) Like sanctions under Section § 128.5, once the moving party establishes facts indicating discovery misuse, the burden of proof is upon the disobedient] party to establish that she acted with substantial justification or other circumstances make discovery sanctions unjust. (Ibid., see also, Doe v. U.S. Swimming, supra, 200 Cal.App.4th at p.1435; Cornwall, supra, 66 Cal.App.3d 250, 252-253.) Plaintiff provided no proof to support denying sanctions. Discovery sanctions are) proper. (Ibid. see also, In re Marriage of Eustice (2015) 242 Cal.App.4th 1291, 1308.) Plaintiff’s responses 2 The pagelength of the first ed.is 1,225, the Oxford Worlds Classics ed. is 1,440 pages in length. (War and Peace, https://en.wikipedia.org/w/index.php?titte=War_and_Peace& oldid=759998424 (last visited J an. 14, 2017; List of longest novels, https://en.wikipedia.org/w/index.php?title=Listoflongestnovels&oldid=759873717 (last visited J an. 13, 2017).) 4 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o are sanctionable willful failures to respond “to an authorized method of discovery,” and “evasive response(s) to discovery.” (Code Civ. Proc., § 2023.010, subds. (d) & (f)).) Sanctions are also appropriate because Plaintiff ignored Defendants’ exhaustive meet-and-confer attempts to obtain useful responses. (ld. §§ 2023.010 subd. (i), 2023.020; Liberty M utual, supra, at pp. 1101, 1103-1104, 1106.) Plaintiff appears to infer that despite her flagrant discovery misuses, she cannot be sanctioned because Defendants chose not to file a motion for further responses priorto filing the motion for sanctions. (Opp. 99, p. 3:17-19.) “Plaintiff[’]s contention is meritless.” (Tucker v. Pac. Bell Mobile Services (2010) 186 Cal.A pp.4th 1548, 1561.) A motion to compel responsesis not a prerequisite to moving for sanctions pursuant to section 2023.030. (Ibid; New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.A pp.4th 1403, 1425.) Plaintiff also complains that a portion of the motion is based on Plaintiff's deposition testimony from another case. (Opp. 110.) Plaintiff’s complaint is meritless. First, a “sanctioned party’s history as a repeat offender is not only relevant, but also significant, in deciding whether to impose ... sanctions.” (Liberty Mutual Fire Ins. Co., supra, 163 Cal.App.4th 1093, 1106; Cunha v. Anglo California Nat'l Bank (1939) 34 Cal.App.2d 383, 391.) Second, the deposition testimony was proffered for the purpose of showing Plaintiff’s bad-faith. Plaintiff testified under penalty of perjury that she had no claims against M ark, Richard or Scott. Plaintiff also testified that her claims against Abelardo are based on allegations that he withdrew approximately $134,000 from a bank account in his own name, which as a matter of law, is not actionable. Plaintiff’s only “evidence” that D efendants took more than $2.5 million dollars that belonged to Dortha,is her baseless notion that money from 2005 appears to be “missing.” Plaintiff admitted her allegations of] Abelardo’s infidelity are based on nothing more than a hunch. Plaintiff’s deposition testimony is not offered for the purpose of obtaining discovery sanctions for her evasive answers at deposition. Plaintiff’s testimony is an admission of a party opponent. It shows that Plaintiff and Mr. Mills filed and are perpetuating this meritless case knowing the allegations are meritless and were made for the purpose of delay, harassment and annoyance, which is sanctionable conduct under Code of Civil Procedure section 128.5. The fact that Plaintiff's sworn testimony was made at deposition in another case does not prohibit its use in this case.? 3 To find otherwise would mean that the only evidence admissible at law and motion is discovery production. This would contradict Rules of Court, rule 3.1306, the Evidence Code. (Evid. Code, §§ 1220, 1221 admissions of party opponents admissible]; e.g. Cunha, supra, 34 Cal.App.2d 383, 389 [evidence by declaration].) DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o 2. THE FALSE STATEMENTS IN THE SWORN OPPOSITION CONFIRM THAT PLAINTIFF AND HER ATTORNEY MUST BE SANCTIONED “A verification is an affidavit of the truth of the matter stated [Citations].” (Sheeley v. Santa Clara (1963) 215 Cal.App.2d 83, 85.) If a verification is made by the attorney and not the party, the attorney “shall set forth in the affidavit the reasons why it is not made by one of the parties.” (Code Civ. Proc., § 446; Newman v. Bird (1882) 60 Cal. 372, 375.) Mr. Mills’s verification makes no mention of the reason for his verification. It consists,in its entirety, of the following: | declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. [1] Dated: January 12, 2017 [signature] [1] Charles K. Mills, attorney for Sharon M organ (Opp. p.16:4-8.) Verifications serve “to assure good faith in the averments or statements of a party. The chief test of the sufficiency of a verification is whether it is so clear and certain that an indictment for perjury may be sustained on it if false. [Citation.].” (Sheeley, supra, 215 Cal.App.2d 83, 85; see also, In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 825; see also Pen. Code, §§ 118, 118a.) Attorneys who verify documents without any personal knowledge or good-faith basis to believe the truth of the statements made therein are subject to punishmentfor perjury. (See Blum v. Sup. Ct. (2006) 141 Cal.App.4th 418, 428.) Mr. Mills declared under penalty of perjury as to the truth of facts that are well outside his knowledge. (E.g. Opp. 19 3, 25 [claiming Abelardo and Dortha “entered a long term relationship at some point in the 1990s [sic]”], 27 [claiming “until 2004... [Dortha] paid her own bills, managed her banking, and did not share these tasks with A belardo]; 26, 28-62.) Because Mr. Mills cannot possibly have personal knowledge of these facts, Defendants respectfully request them stricken. (Silcox v. Lang (1889) 78 Cal. 118, 123.) A. Plaintiff’s False Statements About The Probate Proceedings Are Further Proof That Sanctions Against Plaintiff And Her Attorney Are Necessary Mr. Mills and his client make false statements about the probate proceedings. Although they do nothing to support Plaintiff’s opposition to imposing sanctions, the false statements are addressed here because they support sanctions against both Plaintiff and her attorney for their continued bad-faith conduct. Plaintiff and Mr. Mills claim that an unidentified “Defendant,” “harassed” the temporary trustee in the probate case by requesting she be suspended from her duties and ordered to appear for Deposition or be jailed until such time as she agrees to sit for deposition. (Opp. 119.) On November 29, 2016, the trustee ad litem (who is subject to 6 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o removal for, among other things, favoring Ms. M organ instead of acting as a neutral) failed to appear for her deposition. (Luthin Decl., 13.) As a result, the Estacions were forced to apply for an order of contempt against the trustee ad litem. (/d., 99 4, 5, Exh. 4.) Pursuant to Sections 1991.1, 2020.240, 2020.330, subdivision (e), 2025.440, subdivision (b) of the Code of Civil Procedure, the E stacions properly seek an order of contempt that includes a direction to the Orange County Sheriff to confine the trustee ad litem to jail until that time that she purges herself of contempt by attending the taking of her deposition and producing all writings responsive to the deposition subpoena that was duly issued and served on her. (/bid.) Applying to the court for lawful recourse from the trustee’s subpoena violation is not harassment. Plaintiff and Mr. Mills claim that the Estacions “filed a cartoon in the trust matter depicting Betty DeKovner’s attorney, Rod Stern, locked in a London “police box.” (Opp: p. 6:11-13; id., 99 19-20.) Mr. Mills knows this sworn statement is false. The depiction is not of Mr. Stern being locked anywhere or even being in a police box. The picture depicts Mr. Stern riding in Dr. Whos time machine, the TARDIS. (Time and Relative Dimensions In Space). (Luthin Decl., 196-11, Exhs. 2, 3.) The exhibit (along with the picture of Mr. Peabody’s way-back machine) were for the purpose of illustrating that Mr. Stern’s ex parte application contained false statements of factual history. (/d., 99, Exh. 2, pp.8:27-9:1.) While the exhibits may not have been necessary, the opposition to which the exhibits were attached successfully defeated Mr. Stern’s application. . (/d., 112.) Most importantly, because Mr. Mills knows the true meaning of the exhibit, his sworn false statements are both sanctionable and criminal. (Pen. Code, § 1183; see also, id., §§ 125, 132 [offering false evidence], 134 [preparing false evidence]; Codiga v. The State Bar (1978) 20 Cal.3d 788, 793.) B. Plaintiff's False Character Attacks Of Opposing Counsel Support Sanctions Plaintiff claims that “There have been so many attempts at harassment and intimidation that it is impossible to list them all here.” (Opp. 1916, 17.) Plaintiff’s attorney claims that he “believes [the motion] to be bad faith attempt by the Defendant to harass and intimidate the Plaintiff. From there, Plaintiff makes false statements and attacks against Defendants’ counsel. (ld. 99 19-20.) The character attacks are irrelevant to opposing the motion (Evid. Code 350), but are relevant to show Plaintiff’s and her counsel’s additional sanctionable conduct. (/bid.) C. Plaintiff’s And Mr. Mills’s False Statements About Abelardo’s Murder Are Further Proof T hat SanctionsAre Necessary 7 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o (1) Plaintiff Admits She lsA Suspect In Abelardo’s Murder Plaintiff alleges that M ark Estacion (who lives on the East Coast) owed a duty to his stepmother, Dortha to protect her from harm. If Plaintiff’s allegations are to be taken as made in good-faith, then Plaintiff would have owed a duty to her stepfather Abelardo to protect him from being murdered by Plaintiffs son-in-law. The fact that Plaintiff and her family are suspects in A belardo’s murder shows that Plaintiff does not believe adult stepchildren owe their stepparents any such duty. This is relevant to the case and to the sanctions motion. Irony aside, Plaintiff knows that she is a suspect in A belardo’s murder. At deposition Plaintiff testified that she asked Mr. Mills for the name of a criminal defense attorney because she is being investigated for Abelardo’s murder. (Luthin Decl., 1913-16, Exh. 1.) She also testified that as part of the investigation into Abelardo’s murder, the police: (1) questioned Plaintiff on several occasions about Abelardo Estacion’s murder and accused Plaintiff of “murdering,” A belardo; (2) obtained Plaintiff’s DNA and took photographsof her body; (3) confiscated Plaintiff’s several phones, her iPod, her computers, her uncle’s computers and cell phones and Dortha’s will and trust documents; and (4) executed multiple search warrants at Plaintiff’s home and cars, and the homes and cars of Plaintiffs family members; and (5) accused Plaintiff of committing financial crimes against Abelardo and Dortha. (Luthin Decl., § 15, Exh. 1.) Y et, Plaintiff and Mr. Mills (the latter of whom declared under penalty of perjury) claim that these statements “are false and/or speculative.” (Opp. p.5:10-11.) Plaintiff has no legitimate basis for denying facts she has admitted. Plaintiff’s and her attorney’s denial is a breach of duty of candorto the court (Rules Prof’ Conduct, rule 5-200, Bus. & Prof’l Code, §§ 6068 subds. (b) & (d), 6103, 6106), is unlawful deceit and collusion (/d. § 6128, subd. (a)), and importantly, is falsification of evidence, perversion of justice, perjury and contempt. (Code Civ. Proc., § 1029; Pen. Code, §§ 96.5, subd. (a), 118a, 125; Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 762) and further indication that sanctions should issue. (Code Civ. Proc., §128.5; West Coast Dev., supra, 2 Cal.App.4th 693, 702-703.) (2) Mr. Mills’s Claim That Defendants’ Counsel Is “[Un]ethic[al]” I's Unlawful Mr. Mills and Plaintiff “question[] the ethics of Defendant’s repeated threats of criminal action,” apparently for informing the court that Plaintiff is a suspect in the murder of the victim whose estate she is now suing. (Opp. 118.) “One who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust, or other wrongful act,” may not enjoy the fruits of her wrongful act. (Civ. Code, §§ 2224, 3517 [“No 8 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o one can take advantage of his own wrong”].) Elder abusers and felonious killers cannot succeed to any portion of the decedent’s estate. (Prob. Code, §§ 250- 259.) “[T]he absence of a conviction does not preclude the court from determining that the killing was felonious and intentional.” (Prob. Code, § 254, subd. (b); see Meyer v. J ohnson (1931) 115 Cal. App. 646, 651 [“personal representatives of murderously inclined beneficiaries [may not] take money made bloody by the slaying™]; see also Code Civ. Proc., § 128.5, subd. (d).) Plaintiff's role in Abelardo’s murder will directly affect the outcome ofthis case. There is nothing unethical about raising this issue. Mr. Mill’s verification ofthe statements in the opposition violates his duty to not falsely disparage another memberofthe bar. (Bus. & Prof. Code, § 6068.) 3. PLAINTIFF’'SOBJECTIONTO THE AMOUNT OF FEES ISBASELESS Every trial court may order a party, the party’s attorney, or both, to pay any reasonable expenses including attorney’s fees, incurred by another party as a result of discovery misuse (Code Civ. Proc. § 2023.030) and bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay, including but not limited to, filing and serving a complaint. (Code Civ. Proc. § 128.5; Folsom Associates v. Prometheus D evelopment Co. (1990) 223 Cal.App.3d 1, 19-28.) Defendants are entitled to fees and expenses reasonably incurred in defending the action as wells as the attorney fees reasonably incurred in making the motion for sanctions. (See Evans v. Centerstone D evelopment] Co. (2005) 134 Cal.App.4th 151, 168.) Because the motion addresses multiple, “separate (yet interrelated) wrongs, higher sanctions are appropriate.” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 34.) A. Plaintiff Proffered No Proof That Defendants’ R equested Amount Is Not Reasonable The starting point for an order of fees as monetary sanction is the lodestar calculation; the number of hours reasonably expended multiplied by the reasonable hourly rate. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) When deciding whether the attorney’s fees are “reasonable,” a court looks to the attorney’s stated amount oftime spent on the matter and hourly rate sought. (Graciano v. County ofL.A. (2013) 217 Cal.App.4th 968, 987; Horsford v. Bd. of Tees. of Cal. St. Univ. (2005) 132 Cal.App.4th 359, 396.) An attorney’s declaration stating her hourly rate and the number of hours worked is sufficient evidence to support an award of attorney’s fees. (Lunad Biomedical v. Nunez (2014) 230 Cal.A pp.4th 459, 487-488.) The party opposing fees bears the burden of proving the amount is unreasonable. (Am. Motorists Ins. Co. v. Sup. Ct. (1998) 68 Cal.App.4th 864, 875; see also Evid. Code, § 604.) A trial court “should defer to the 9 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FP , FP F F P FR , F P R c o ~ N O o o u l B A W N F P O O V U 0 0 N O U U B s W N + H o O o winning lawyer’s professional judgment as to how much time he was required to spend on the case;after all, he won, and might not have, had he been more of a slacker.” (Moreno v. City ofSacramento (9th Cir. 2008) 534 F.3d 1106, 1112.) Plaintiff proffered no evidence to prove the rate or hours are unreasonable. Based on| Defendants’ counsel’s unrebutted records and declaration, the amount requested in the motion is reasonable. (Ibid.; Russell v Foglio (2008) 160 Cal.App.4th 653, 661; United Steelworkers v Retirement Income Plan (9th Cir 2008) 512 F3d 555, 565.) B. Published C ases Support Defendants’ Requested SanctionsAmount Plaintiff complains that the amount of fees requested are [sic] outrageous. (Opp. § 63 p.13:21-22.) Plaintiff°s bare conclusion does not amount to a defense. (See Marin v. J acuzzi (1964) 224 Cal.App.2d 549, 552 [words: “wrongfully, wilfully [sic] and maliciously add nothing ... except to convey a sense of outrage on the part of the appellant”].) Nor is Plaintiff’s contention supported by the published cases. (E.g. discovery sanctions Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1473-1477 [$74,809]; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 1001 [$ 57,587] and Code. Clv. Proc., 128.5 sanctions David v. Abergel (1996) 46 Cal.App.4th 1281, 1283 [$75,000].) This motion independently seeks both discovery sanctions and Code of Civil Procedure section 128.5 sanctions for separate conduct. Defendants’ requested fees for discovery sanctions are $32,130.00. Their requested fees for the meritless, bad-faith, harassing and oppressive tactics are $87,762.50. Their costs are $2,433.98. (Luthin Decl., 117.) The requested sanctions are within the range of the published cases (all determined at least six years ago). 4. CONCLUSION Defendants respectfully request the Court enter an order, pursuant to Code of Civil Procedure sections 128.5 and 2023.030 awarding the Estacions and their attorney, Melinda L uthin Law, the sum of one hundred twenty-two thousand three hundred twenty-six dollars and forty eight cents ($122,326.48), to be paid by Plaintiff, Sharon Morgan and Charles Mills, jointly and severally, within thirty days of the issuance of the order, representing Defendants’ reasonable attorneys’ fees and expenses incurred as a result of Mr. Mills’s and Plaitnff>s discovery misuse and bad-faith actions and tactics that are frivolous or solely intended to cause unnecessary delay, including fees and expenses in bringing this motion. Dated January 20, 2017 MELINDA LUTHIN LAW, by Respectfully submitted, /s/ Melinda L uthin, Attorney for Defendants 10 DEFENDANTS’ REPLY ISO MOTION FOR ORDER OF SANCTIONS