Opinion
B307671
08-17-2021
Estate of AMY HUANG Deceased. MICHAEL VELCHEREAN, Petitioner and Respondent v. MING CHAO HUANG et al., Contestants and Appellants
Law Office of R Lance Belsome, Ronald Lance Belsome; LimNexus, Pio S. Kim; and Law Office of Sandy Chun, Sandy J. Chun for Appellants. No appearance by Respondent.
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Los Angeles County No. 18STPB11082, Michael C. Small, Judge. Reversed.
Law Office of R Lance Belsome, Ronald Lance Belsome; LimNexus, Pio S. Kim; and Law Office of Sandy Chun, Sandy J. Chun for Appellants.
No appearance by Respondent.
CURREY, J.
INTRODUCTION
Appellants, who are all represented by the same lawyer in this court and the trial court, filed a will contest, objecting on six grounds to the probate of a proposed will. In response, respondent propounded three sets of special interrogatories, with one set addressed to each of the three appellants, for a total of 723 special interrogatories.
Appellants responded to the interrogatories with responses and objections. After engaging in a meet-and-confer process to address asserted deficiencies in appellants' responses, respondent did not move to compel further responses to the first sets. Instead he propounded new sets of 18 special interrogatories on each appellant, totaling 54 special interrogatories. The new sets of interrogatories sought the same information as the first sets, albeit using vastly fewer questions. Appellants responded to the second sets of interrogatories with objections only.
Respondent moved to compel responses to the second sets of interrogatories. The trial court granted the motions to compel, and imposed the requested sanctions of $5,809 against each appellant and their attorney (totaling $17,427) on the ground appellants were not substantially justified in objecting to the new sets of interrogatories. On appeal, appellants contend the court erred because: (1) the motions to compel were untimely; and (2) the amount of sanctions imposed was unreasonable and punitive. For the reasons discussed below, we agree with appellants that the motions were untimely; thus, the trial court lacked authority to rule on the motions other than to deny them. Accordingly, we reverse the orders granting respondent's motions to compel and imposing sanctions on appellants and their attorney.
No respondent's brief was filed. The rule we follow in such circumstances “is to examine the record on the basis of appellant's brief and to reverse only if prejudicial error is found. [Citations.]” (Votaw Precision Tool Co. v. Air Canada (1976) 60 Cal.App.3d 52, 55; accord, Carboni v. Arrospide (1991) 2 Cal.App.4th 76, 80, fn. 2.)
FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2018, Amy Huang (decedent) died from suicide. Her husband, respondent Remus Velcherean aka Michael Velcherean, filed a petition to probate decedent's will and to be appointed executor of her estate.
We grant appellants' motion to augment the record on appeal with documents filed in the underlying action, including the Will Contest and Objection, filed February 26, 2021
Sophia Huang (decedent's sister), Ming Chao Huang (decedent's father), and Mei Jung Lin (decedent's mother) (collectively, appellants) filed a Will Contest and Objection, contesting both the will and respondent's request to be appointed executor of the estate. The will contest objected to the will on six grounds, including lack of testamentary capacity on the part of the decedent and financial abuse on the part of respondent.
On July 31, 2019, respondent propounded (as noted above) one set of special interrogatories on each of the three appellants, totaling 723 special interrogatories (the “first sets”). Each of the first sets of interrogatories was organized as follows: an interrogatory seeking all facts supporting specified factual assertions in the will contest, followed by an interrogatory seeking the identity of witnesses who know of those facts, and an interrogatory seeking identification of all documents supporting those facts. The first 222 interrogatories were identical for each of the appellants.
That was too many interrogatories. Code of Civil Procedure section 2030.030, subdivision (b) provides “no party shall, as a matter of right, propound to any other party more than 35 specially prepared interrogatories.” (All further undesignated statutory references are to the Code of Civil Procedure.) Section 2030.040 permits a party to serve more than 35 specially prepared interrogatories if the additional interrogatories are supported by a declaration attesting to a permissible reason justifying the additional questions. Here, respondent's counsel attached his declaration to each set of the first sets of interrogatories stating the number of interrogatories was necessary “because of the complexity or the quantity of the existing and potential issues in the particular case” due to the “number of contentions... made in the [will contest].” That was incorrect for two reasons. First, although this case may be of great interest and importance to the litigants and their lawyers, on the spectrum of cases pending in the Los Angeles County Superior Court it is far from complex, and the number of interrogatories served clearly was excessive. Second, counsel demonstrated the number was excessive by successfully winnowing the number from 723 in the first sets to 54 in the second. Serving the initial 723 interrogatories violated the Los Angeles County Superior Court Civility Guidelines. (Los Angeles County Superior Court, Local Rules, Appendix 3.A(g)(1) [“Interrogatories should be used sparingly and never to harass or impose undue burden or expense on adversaries.”].)
On August 22, 2019, appellants responded to the first sets by providing a 41-page response to the first interrogatory, a list of 28 witnesses in response to the second interrogatory, and in response to the third interrogatory, the bates numbers of all documents produced in the action by appellants. Appellants then incorporated and/or repeated the same responses to all remaining interrogatories in the first sets.
The parties exchanged meet-and-confer letters addressing the deficiencies in the responses to the first sets, and engaged in a telephonic meet-and-confer conference. Appellants agreed to extend the deadline for filing motions to compel further responses to the first sets until November 12, 2019.
In response to a November 4, 2019 follow-up email from respondent's counsel inquiring whether he would be receiving supplemental responses to the first sets, appellants' counsel responded: “You agreed to get back to me on a set of 6 special interrogatories to replace the [723] interrogatories you propounded. [¶] Did you forget that you were going to do that?” Respondent's counsel responded in part: “I don't know what agreement you are referring to... We didn't forget the special interrogatories and will serve those....”
On December 5, 2019, respondents propounded a new set of 18 interrogatories on each of the appellants (the “second sets”) to replace the first sets. For each of the six grounds on which the will contest was based, respondents asked three interrogatories seeking (1) facts, (2) witnesses, and (3) documents supporting each ground. On December 23, 2019, appellants responded to the second sets with objections only.
The parties again exchanged meet-and-confer letters. Respondent's counsel wrote, in part: “After agreeing, at your suggestion, to substitute interrogatories regarding your clients' six stated claims in their Petition in place of the previously propounded special interrogatories, you have refused to answer these entirely and served only objections. [¶]... pursuant to our agreement, the interrogatories are limited to the six causes of action stated in the Will Contest, as well as witnesses and documents relating to the underlying facts.” Appellants' counsel responded, stating in part: “On October 7, 2019, we had an extended meet and confer conference in which you were given until November 12, 2019, to bring a motion to compel.... In that conference, I stated that if you were seeking legitimate discovery on the basis for the six grounds for objections stated in... the Will Contest and Objection, you could have accomplished that with six (6) special interrogatories seeking ‘all facts supporting each of those six grounds.' I told you that, if you did that, I would provide substantive responses, identifying witnesses and citing to documents thus-far discovered and based on legal authority.... [¶]... Rather than propound six (6) special interrogatories seeking ‘all facts supporting' the six grounds stated in [the will contest], you propounded fifty-four (54) redundant special interrogatories....”
On January 24, 2020, respondent filed three identical motions to compel further responses to the second sets, and sought monetary sanctions. Appellants opposed the motions, arguing the second sets of interrogatories sought the same information as the first sets, and because respondent failed to move to compel further responses to the first sets within the time allowed under the Code of Civil Procedure, the motions were untimely. Appellants also argued the interrogatories were harassing, unduly burdensome, and sought privileged information.
The trial court granted the motions to compel, and imposed the requested sanctions of $5,809 against each appellant and their attorney (totaling $17,427). At the hearing on the motions, the court found the motions were not untimely because “they are tied to the second set of interrogatories, not the first.” The court further found the interrogatories in the second sets were “not compound, ” “do not ask for privileged matter, ” and were “not unduly burdensome and vexatious.” Regarding sanctions, the court stated: “... I don't think that there was substantial justification... for the objection, and my hands are tied. I don't like sanctioning lawyers. It's not something that I relish.... But the Code of Civil Procedure is pretty strict. There has to be substantial justification for the objections, and I just don't see it here.”
Appellants timely appeal from three separate orders, filed August 6, 2020, August 10, 2020, and August 20, 2020, granting the motions to compel and imposing sanctions on each of the appellants and their attorney.
An order directing payment of monetary sanctions over $5,000 is immediately appealable. (§ 904.1, subd. (a)(12).) The merits of the trial court's order granting the motions to compel are also appealable. Although a discovery order is not separately appealable (see Macaluso v. Superior Court (2013) 219 Cal.App.4th 1042, 1049), the trial court's decision on a discovery matter is immediately reviewable if, as here, it “necessarily affects” an appealable order. (§ 906.)
DISCUSSION
A. Standard of Review
“A trial court's determination of a motion to compel discovery is reviewed for abuse of discretion” (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725, 733), as is a trial court's order imposing discovery sanctions. (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) “The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.” (Ibid.) “‘The discretion of a trial judge is not a whimsical, uncontrolled power, but a legal discretion, which is subject to the limitations of legalprinciples governing the subject of its action, and to reversal on appeal where no reasonable basis for the action is shown.' [Citations.]” (Westside Community for Independent Living, Inc. v. Obledo (1983) 33 Cal.3d 348, 355.)
B. The Motions to Compel Were Untimely
Appellants contend the court lacked authority to rule on the motions to compel, other than to deny them, because they were untimely. We agree.
Section 2030.300, subdivision (c) provides that “[u]nless notice of [a motion to compel further responses to interrogatories] is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the propounding party and the responding party have agreed in writing, the propounding party waives any right to compel a further response to the interrogatories.” The 45-day limitation is “‘jurisdictional' in the sense that it renders the court without authority to rule on [untimely] motions to compel other than to deny them.” (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410, fn. omitted (Sexton).)
It is undisputed respondents filed their motions to compel within 45 days of receiving appellants' objections to the second sets. Appellants contend the motions were untimely, however, because the second sets sought the same information as the first sets, and respondents failed to move to compel further responses to the first sets within the time limits of section 2030.300.
Prof'l Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 493 (Career Colleges) is directly on point. There, the plaintiff propounded a set of interrogatories on the defendant, which included an interrogatory seeking the addresses of students who enrolled in a program during a specified period. (Id. at p. 492.) The defendant objected and the plaintiff made no motion to compel a further response. (Ibid.) A month and a half later, the plaintiff propounded a second set of interrogatories on the defendant with mostly new interrogatories, but also included an interrogatory that sought essentially the same information as the interrogatory in the first set (i.e., addresses of students who enrolled in a program during a specific period). (Ibid.) After the defendant objected on the ground the new interrogatory was the same as the old interrogatory in the first set, “the plaintiff finally filed and served a motion to compel....” (Ibid.) On appeal, the court held the motion to compel further response to the new interrogatory was time-barred. (Id. at p. 494.) The court reasoned “it would be an absurdity to say that a party who fails to meet the time limits of section 2030 may avoid the consequences of his delay and lack of diligence by propounding the same question again.” (Ibid.)
Like the plaintiff in Career Colleges, respondent in this case attempted to “reset the clock” by propounding the second sets of interrogatories seeking the same information as the first sets. (Career Colleges, supra, 207 Cal.App.3d at p. 493.) As discussed above, the first sets consisted largely of contention interrogatories relating to the six grounds on which appellants contested the will (contained in paragraph 7 of the will contest), and all the facts stated in paragraphs 9-45 of the will contest (which contained a verified statement of facts on which paragraph 7 was based). As noted above, the contention interrogatories, combined with interrogatories seeking witnesses and documents supporting the contentions, resulted in 723 special interrogatories. (Ibid.)
The parties met-and-conferred regarding appellants' responses to the first sets, and appellants agreed to extend the deadline for filing motions to compel until November 12, 2019. Respondents did not move to compel responses to the first sets. Instead, several weeks after the agreed-upon motion to compel deadline to the first sets lapsed, respondents propounded the second sets. Like the first sets, however, the second sets again requested facts, witnesses, and documents supporting each of the six grounds on which the will contest was based. Thus, the second sets were essentially a version of the first sets seeking the same information in far fewer questions. Indeed, some of the interrogatories in the second sets were nearly identical to those in the first sets. Because the second sets sought the same information as the first sets, and the parties did not agree in writing to further extend the November 12, 2019 motion to compel deadline, respondent waived “any right to compel a further response” to the interrogatories in the first and second sets. (§ 2030.300, subd. (c); Career Colleges, supra, 207 Cal.App.3d at p. 494.) Accordingly, we conclude the trial court lacked authority to grant respondent's untimely motions to compel further responses to the second sets and also lacked authority to impose sanctions. (See Sexton, supra, 58 Cal.App.4th at p. 1410.)
For example, Special Interrogatory No. 13 in the first sets stated: “State all facts SUPPORTING your contention in the OBJECTION at Paragraph 7(b) that ‘At the time of the alleged execution of the Document, Decedent lacked testamentary capacity in that she suffered from a mental disorder with symptoms including delusions which resulted in her purported devising of property in a way which, except for the existence of the delusions, she would not have done, within the meaning of Probate Code § 6100.5(b).'” Special Interrogatory No. 244 in the second sets stated: “State all facts REGARDING YOUR cause of action in the OBJECTION at Paragraph 7(b) that “‘At the time of the alleged execution of the Document, Decedent lacked testamentary capacity in that she suffered from a mental disorder with symptoms including delusions which resulted in her purported devising of property in a way which, except for the existence of the delusions, she would not have done....'”
Because we conclude the court lacked authority to grant the motions to compel and impose sanctions, we need not address whether the amount of sanctions imposed was unreasonable.
DISPOSITION
The orders are reversed. Appellants are awarded their costs on appeal.
We concur: MANELLA, P.J., WILLHITE, J.