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BRADLEY KASS, ESQ. (CBN# 127658)
KASS & KASS LAW OFFICES
1900 S. Norfolk, Suite 265
San Mateo, CA 94403
Phone Number: (650) 579-0612
Fax Number: (650) 579-0760
Attorney for Defendants
SUSAN M. CLARKE, ALBERT K. CLARKE, AND
ROBERT M. PICKLE, ind. and as Trustee
IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
lead case no. 16CV299824
[consolidated with
Case No. 18CV321960]
LALANI NAILAU,
Plaintiff,
vs.
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
MOTION TO COMPEL FURTHER
DEPOSITION AND PRODUCE
DOCUMENTS; AND DEFENDANT’ S
REQUEST FOR AN AWARD OF
ATTORNEY’S FEES AGAINST
PLAINTIFF AND HER COUNSEL
SUSAN M. CLARKE, ALBERT K.
CLARKE, ROBERT M. PICKLE & THE
PICKLE MARITAL TRUST, ROBERT M.
PICKLE AS TRUSTEE and Does 1-
25, inclusive,
Defendants,
DATE: March 5, 2019
TIME: 9:00 a.m.
DEPT: 9
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONiwtroDtcrzon
Defendants Susan M. Clarke, Albert K. Clarke, Robert M.
Pickle & the Pickle Marital Trust, Robert M. Pickle as Trustee
hereby submit their Opposition to Plaintiff’s Motion to Compel
Further Deposition and Produce Documents.
Plaintiff by way of her motion seeks an order to produce
estate planning documents i.e. living marital trust of the
Defendant Robert Pickle.
It should be noted that moving party on pg. 4 lines 3 thru 6
of her moving memorandum has misrepresented to the court that no
documents were produced by Defendant Robert Pickle at his
deposition on October 11, 2018. In fact, a stack of documents
concerning the purchase of the subject property of this lawsuit of
335 Loyola Drive, Aptos, Ca. was produced at the deposition on
October 11, 2018. (Dec. of Bradley Kass Esq.)
Iz.
THIS MOTION SHOULD BE DENIED SINCE PLAINTIFF HAS WAIVED
THE RIGHT TO REQUEST A FURTHER PRODUCTION AND A FURTHER
DEPOSITION SINCE THEY RECEIVED WRITTEN DOCUMENT
OBJECTIONS PRIOR TO THE DEPOSITION AND FAILED TO RESPOND
IN_ANY MANNER PRIOR TO THE TAKING OF THE DEPOSITION ON
OCTOBER 11, 2018; AND THERE WAS NO ATTEMPT TO MEET AND
CONFER.
Plaintiff in her moving papers concedes that written
objections to the deposition were served by Defendants on October
5, 2018. (Moving Dec. of Jeff Atterbury paras 2 and 16; Ex. A to
Dec. of Bradley Kass Esq.) After the written objections to
document production were served by Defendants, there was no
response by Plaintiff to the written objections. (Dec. of Bradley
Kass Esq.)
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONInstead, Plaintiff elected to proceed with the deposition on
October 11, 2018. (Dec. of Bradley Kass Esq.) Now, by way of this
motion, Plaintiff seeks a second deposition and a request to
compel production of a purported marital living trust after the
deposition has already been taken.
Plaintiff’s attorney was obligated to meet and confer prior
to the deposition if an issue was going to be raised regarding the
October 11, 2018 deposition and objections to the document
request. In fact, at the deposition, Defendant’s counsel would
not agree to a second deposition notwithstanding the claim by
Plaintiff’s counsel that they were adjourning the deposition.
(Dec. of Bradley Kass Esq.) The Defendant Robert Pickle is eighty
eight (88) years old and Plaintiff if trying to harass him by
seeking a second deposition of him by way of this motion. (Dec.
of Bradley Kass Esq.)
C.c.P. § 2016.040 in proscribing the requirements for a meet
and confer declaration states:
“A meet and confer declaration in support of
a motion shall state facts showing a
reasonable and good faith attempt at an
informal resolution of each issue presented by
the motion.”
In analogy to the Plaintiff counsel’s declaration in support
of the motion, Plaintiff’s counsel does not give any explanation
as to why he did not attempt to try and work matters out prior to
the deposition which occurred on October 11, 2018. As previously
indicated, Plaintiff concedes that written objections to the
documents were served prior to the deposition occurring. (Moving
Dec. of Jeff Atterbury paras 2 and 16; Ex. A to Dec. of Bradley
Kass Esq.)
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONoy vn w
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The case of Stewart v. Colonial Western Agency, Inc. [Mar.
2001] 87 Cal. App. 4** 1006,1016 in ruling that serious meet and
confer must occur before filing a motion to compel states on pg.
1016:
“The Discovery Act requires that, prior to the
initiation of a motion to compel, the moving
party declare that he or she has made a
serious attempt to obtain ‘an informal
resolution of each issue.’ (Sec. 2025, subd.
(O)....) This rule is designed ‘to encourage
the parties to work out their differences
informally so as to avoid the necessity for al
formal order...’ (cite omitted) This, in turn,
will lessen the burden on the court and reduce
the unnecessary expenditure of resources by
litigants through promotion of informal,
extrajudicial resolution of discovery
disputes... (cite omitted)”
The case of Obregon v. Superior Court [October 1998] 67 Cal.
App. 4th 424,434 confirms the strong policy of the Discovery Act
that good faith informal resolution is required prior to a motion
to compel can be granted. Obregon, supra states in pertinent part
on page 434:
“...Thus reasonable and good faith efforts at
informal resolution of discovery disputes are
no doubt a key part of the discovery
system...”
In the instant matter, prior to the deposition occurring on
October 11, 2018, it is believed that Plaintiff already intended
to request that the deposition be adjourned and that a post
deposition Motion to Compel would be filed. Since the Plaintiff
chose to ignore the written objections to production of documents
served prior to the deposition, this is grounds in and of itself
to deny this motion.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONWw N
By the use of such tactics, it is respectfully asserted that
the plaintiff has waived the right to bring this motion and has
also failed to meet and confer in good faith prior to the
deposition occurring.
It appears that Plaintiff tries to justify their tactic of
proceeding with the deposition by asserting in the moving papers
that the written objections were boilerplate and legally
deficient. If this was the position of the Plaintiff then there
was an obligation to meet and confer prior to the proceeding to
deposition on October 11, 2018.
Notwithstanding, in fact, the objections were not boilerplate
at all since Plaintiff had been continuously trying to obtain
estate planning documents of the Defendant and the objections
raised privacy as one of the objections. (Ex. A to Dec. of Bradley
Kass Esq.) The last objection of Defendant’s written objections
to the deposition production of documents states:
“Defendants further object to the extent that
the requests violate rights of privacy and are
not within the scope of permissible
discovery.” (Ex. A to Dec. of Bradley Kass
Esq.)
There is nothing boilerplate about this objection especially
since the parties have been having ongoing disputes about
Plaintiffs continuous pursuit of the financial and private affairs
of the Defendant Robert Pickle. (Dec. of Bradley Kass Esq.)
IIr.
PLAINTIFF HAS FAILED TO SHOW GOOD CAUSE EXISTS TO COMPEL
A_FURTHER PRODUCTION OF A DOCUMENT I.E. A MARITAL LIVING
TRUST OR TO HAVE A SECOND DEPOSITION OCCUR, AND THIS
MOTION SHOULD BE DENIED AS PRODUCTION OF THE REQUESTED
DOCUMENT WOULD HAVE VIOLATED THE RIGHTS OF PRIVACY OF
DEFENDANT ROBERT PICKLE AND IS NOT RELEVANT TO THE
SUBJECT MATTER OR LIKELY TO LEAD TO ADMISSIBLE EVIDENCE .
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONA. PRODUCTION OF THE REQUESTED DOCUMENT OF A COPY OF THE LIVING
MARITAL TRUST WOULD VIOLATE THE PRIVACY RIGHTS AND PRIVILEGES OF
ROBERT PICKLE AND ARE SOLELY FOR THE PURPOSE OF HARASSMENT
ROBERT PICKLE AND ARE SOLBIE BORK ins yee
It is respectfully asserted that the document sought i.e.
living trust of Defendant Robert Pickle is not relevant to the
subject matter of this action or likely to lead to admissible
evidence. [see C.C.P. Sec. 2017.010] The confidential and private
estate planning document that Plaintiff seeks to obtain by way of
this motion is not relevant to the claims and the allegations of
Plaintiff’s complaint, which concern a claim for fraudulent
transfer of an interest in a house from Defendant Susan Clarke to
her father Defendant Robert Pickle. (Para 11 - Complaint) It
should be noted that throughout this litigation including his
deposition Defendant Robert Pickle has asserted that he always
owned the house and he was the individual that purchased it.
(Declaration of Bradley Kass Esq.)
Plaintiff seeks a copy of the living trust records solely for
the purpose of and related to the finances and private affairs of
Defendant Robert Pickle who is the alleged transferee of the
alleged fraudulent transfer. The finances of an alleged
transferee are not an issue in a fraudulent transfer claim and
thus is not an element of the this lawsuit.
It appears Plaintiff is on a bad faith path solely to harass
Defendant Robert Pickle whose financial condition and private life
is not relevant. Plaintiff seeks to invade the privacy rights of
Defendant Robert Pickle by seeking records of his living trust.
Civil Code Sec. 3439.04 in discussing the elements for a
claim of fraudulent transfer states:
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION(a) A transfer made or obligation incurred by
a debtor is voidable as to a creditor, whether
the creditor's claim arose before or after the
transfer was made or the obligation was
incurred, if the debtor made the transfer or
incurred the obligation as follows:
(1) With actual intent to hinder, delay, or
defraud any creditor of the debtor.
(2) Without receiving a reasonably equivalent
value in exchange for the transfer or
obligation, and the debtor either:
(A) Was engaged or was about to engage in a
business or a transaction for which the
remaining assets of the debtor were
unreasonably small in relation to the business
or transaction.
(B) Intended to incur, or believed or
reasonably should have believed that the
debtor would incur, debts beyond the debtor's
ability to pay as they became due.
(b) In determining actual intent under
paragraph (1) of subdivision (a),
consideration may be given, among other
factors, to any or all of the following:
(1) Whether the transfer or obligation was to
an insider.
(2) Whether the debtor retained possession or
control of the property transferred after the
transfer.
(3) Whether the transfer or obligation was
disclosed or concealed.
(4) Whether before the transfer was made or
obligation was incurred, the debtor had been
sued or threatened with suit.
(5) Whether the transfer was of substantially
all the debtor's assets.
(6) Whether the debtor absconded.
(7) Whether the debtor removed or concealed
assets.
(8) Whether the value of the consideration
received by the debtor was reasonably
equivalent to the value of the asset
transferred or the amount of the obligation
incurred.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONYn Ww
(9) Whether the debtor was insolvent or became
insolvent shortly after the transfer was made
or the obligation was incurred.
(10) Whether the transfer occurred shortly
before or shortly after a substantial debt was
incurred.
(11) Whether the debtor transferred the
essential assets of the business to a lienor
that transferred the assets to an insider of
the debtor.
(c) A creditor making a claim for relief under
subdivision (a) has the burden of proving the
elements of the claim for relief by a
preponderance of the evidence.
There is no reference in the code to an element being the
financial condition of the purported transferee.
The entire language of Civil Code Sec. 3439.04 is solely
based on the mental state and financial issues of the debtor and
not of the transferee.
The rights of privacy to ones estate planning records i.e. a
living trust is a substantial privacy right. In complete
disregard of the substantial privacy rights of Robert Pickle,
Plaintiff makes this motion.
Probate Code Sec. 15800 states:
Except to the extent that the trust instrument
otherwise provides or where the joint action
of the settlor and all beneficiaries is
required, during the time that a trust is
revocable and the person holding the power to
revoke the trust is competent:
(a) The person holding the power to revoke,
and not the beneficiary, has the rights
afforded beneficiaries under this division.
(b) The duties of the trustee are owed to the
person holding the power to revoke.
//
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONmB WwW NY BP
Yn Ww
The case of Drake v. Pinkham [May 2013] 218 Cal. App. qe
400,407 states in pertinent part regarding limitations on
beneficiaries rights states on pg. 407:
The limitation placed on the rights of a
beneficiary by section 15800 is consistent
with the principle that “[p]roperty
transferred into a revocable inter vivos trust
is considered the property of the settlor for
the settlor's lifetime,” and thus, “the
beneficiaries' interest in that property is
“merely potential” and can “evaporate in a
moment at the whim of the [settlor].” ’ ”
(Estate of Giraldin (2012) 55 Cal.4th 1058,
1065-1066 [150 Cal. Rptr. 3d 205, 290 P.3d
199].)
In analogy to the present motion, Plaintiff is even a step
farther removed than a beneficiary who has merely a potential
right in a living trust. Plaintiff like a potential beneficiary
has no rights to invade the privacy of the trustor i.e. Robert
Pickle, and Plaintiff in the moving papers has not cited any
applicable authority otherwise.
The California Supreme Court case of Pioneer Electronics
(USA), Inc. V. Superior Court [Jan. 2007] 40 Cal. 4** 360,368 in
a bank case and proscribing privacy rights states on pg. 368:
“We pointed out in Valley Bank that, unlike
the attorney-client or physician-patient
privilege, there is “no bank-customer
privilege,” and that under “existing law, when
bank customer information is sought, the bank
has no obligation to notify the customer of
the proceedings, and disclosure freely takes
place unless the bank chooses to protect the
customer's interests and elects to seek a
protective order on his behalf.” (Valley Bank,
supra, 15 Cal.3d_ at pp. 656, 657.)
Nonetheless, we concluded the state's privacy
provision “extends to one's confidential
financial affairs as well as to the details of
one's personal life” (id. at p. 656), and we
stated that “ ‘[a] bank customer's reasonable
expectation is that, absent compulsion by
legal process, the matters he reveals to the
bank will be utilized by the bank only for
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONinternal banking purposes.’ " (Id. at p. 657,
quoting Burrows v. Superior Court (1974) 13
Cal.3d 238, 243 [118 Cal. Rptr. 166, 529 P.2d
590].)” (emphasis added)
In addition, Defendant has a Constitutional right to privacy
which includes financial records. [See California Constitution,
Article I, Section I; Fortunato v. Superior Court [Dec. 2003] 114
Cal. App.4th 475,481] The records being sought are from the
personal estate planning of the Defendant Robert Pickle.
Plaintiff in her motion has failed to cite applicable
authority that children have a vested interest to receive an
inheritance. In fact, the Defendant Robert Pickle is free to do
as he chooses with any assets he may own upon his demise. This
includes any purported asset protection trust. Any assets of
Defendant Robert Pickle are solely at his discretion to do as he
pleases and Plaintiff has not cited any applicable authority
otherwise.
In a telephone conversation prior to this motion being filed
Defendant’s counsel explained to Plaintiff’s counsel that
Defendant Robert Pickle was asserting his privacy rights and there
was no known authority by Defendant’s counsel to allow the pursuit
by Plaintiff of invading Defendant Robert Pickle’s private affairs
of his trust documents. Defendant’s counsel also continuously
invited Plaintiff’s counsel to provide any applicable authority
for such financial type discovery which has never been received.
(Declaration of Bradley Kass Esq.)
Iv.
THE ACTIONS OF DEFENDANTS WERE TAKEN WITH SUBSTANTIAL
JUSTIFICATION; AND DEFENDANTS ARE REQUESTING AN AWARD
OF REASONABLE ATTORNEY'S FEES IN THE AMOUNT OF
$2,010.00. AGAINST PLAINTIFF AND HER ATTORNEY FOR HAVING
TO OPPOSE THIS MOTION.
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITIONmB WN
As previously asserted, Plaintiff is seeking a copy of the
estate planning documents i.e. living trust of Defendant Robert
Pickle. For the reasons discussed herein, it is respectfully
asserted that the Defendants and their counsel have acted with
substantial justification in protecting the privacy rights of
Defendant Robert Pickle. Accordingly, regardless of the outcome
of this motion it is respectfully asserted that no requested
sanctions would be warranted.
The conduct of Plaintiff and her counsel have compelled this
opposition to being filed on a motion which they do not cite
applicable authority for their requests.
C.C.P. Sec. 2025.410 allows for an award of reasonable
attorney fees incurred for opposing of the motion against a party.
As the declaration of Bradley Kass, Esq. indicates, he has
spent in excess of approximately six (6) hours preparing the
opposition to this motion. His regular hourly rate for these
types of services is $335.00. (Declaration of Bradley Kass, Esq.)
It is therefore respectfully requested that this court issue and
award of attorney fees against Plaintiff in the amount of
$2,010.00.
conchasrow
Defendants respectfully requests this Court to deny
Plaintiff’s Motion; and for an award of reasonable attorney’s fees
against Plaintiff and her counsel.
DATED: February 20, 2019 KASS & KASS LAW OFFICES
S/ Bradlley Kass Esq.
BRADLEY KASS, ESQ.
Attorney for Defendants
MEMORANDUM OF POINTS AND AUTHORITIES
IN OPPOSITION
10mB WN
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PROOF OF SERVICE
I declare that:
I am employed in the City of San Mateo, County of San
Mateo, State of California. My business address is 1900 S.
Norfolk Street, Suite 265, San Mateo, CA 94403. I am over the
age of eighteen (18) years and am not a party to the within
cause. On February 20, 2019, I served the within:
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION
TO COMPEL FURTHER DEPOSITION AND PRODUCE DOCUMENTS; AND
DEFENDANT'S REQUEST FOR AN AWARD OF ATTORNEY’S FEES AGAINST
PLAINTIFF AND HER COUNSEL
on counsel of record in said cause by email through eFiling System
as follows:
Richard E. Eichenbaum, Esq.
CAPUTO & VAN DER WALDE, LLP
ree@vanderwalde.com
Geoffrey L. Meisner, Esq.
KERN, SEGAL, MURRAY
gmeisner@kerniaw.com
I declare under penalty of perjury that the foregoing is
true and correct, and that this declaration was executed on
February 20, 2019, at San Mateo, California.
Sheana Chandar
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o 4 Dn OW BRADLEY KASS, ESQ. (CBN# 127658) KASS & KASS LAW OFFICES 1900 S. Norfolk, Suite 265 San Mateo, CA 94403 Phone Number: (650) 579-0612 Fax Number: (650) 579-0760 Attorney for Defendants SUSAN M. CLARKE, ALBERT K. CLARKE, AND ROBERT M. PICKLE, ind. and as Trustee IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION lead case no. 16CV299824 [consolidated with Case No. 18CV321960] LALANI NAILAU, Plaintiff, vs. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL FURTHER DEPOSITION AND PRODUCE DOCUMENTS; AND DEFENDANT’ S REQUEST FOR AN AWARD OF ATTORNEY’S FEES AGAINST PLAINTIFF AND HER COUNSEL SUSAN M. CLARKE, ALBERT K. CLARKE, ROBERT M. PICKLE & THE PICKLE MARITAL TRUST, ROBERT M. PICKLE AS TRUSTEE and Does 1- 25, inclusive, Defendants, DATE: March 5, 2019 TIME: 9:00 a.m. DEPT: 9 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONiwtroDtcrzon Defendants Susan M. Clarke, Albert K. Clarke, Robert M. Pickle & the Pickle Marital Trust, Robert M. Pickle as Trustee hereby submit their Opposition to Plaintiff’s Motion to Compel Further Deposition and Produce Documents. Plaintiff by way of her motion seeks an order to produce estate planning documents i.e. living marital trust of the Defendant Robert Pickle. It should be noted that moving party on pg. 4 lines 3 thru 6 of her moving memorandum has misrepresented to the court that no documents were produced by Defendant Robert Pickle at his deposition on October 11, 2018. In fact, a stack of documents concerning the purchase of the subject property of this lawsuit of 335 Loyola Drive, Aptos, Ca. was produced at the deposition on October 11, 2018. (Dec. of Bradley Kass Esq.) Iz. THIS MOTION SHOULD BE DENIED SINCE PLAINTIFF HAS WAIVED THE RIGHT TO REQUEST A FURTHER PRODUCTION AND A FURTHER DEPOSITION SINCE THEY RECEIVED WRITTEN DOCUMENT OBJECTIONS PRIOR TO THE DEPOSITION AND FAILED TO RESPOND IN_ANY MANNER PRIOR TO THE TAKING OF THE DEPOSITION ON OCTOBER 11, 2018; AND THERE WAS NO ATTEMPT TO MEET AND CONFER. Plaintiff in her moving papers concedes that written objections to the deposition were served by Defendants on October 5, 2018. (Moving Dec. of Jeff Atterbury paras 2 and 16; Ex. A to Dec. of Bradley Kass Esq.) After the written objections to document production were served by Defendants, there was no response by Plaintiff to the written objections. (Dec. of Bradley Kass Esq.) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONInstead, Plaintiff elected to proceed with the deposition on October 11, 2018. (Dec. of Bradley Kass Esq.) Now, by way of this motion, Plaintiff seeks a second deposition and a request to compel production of a purported marital living trust after the deposition has already been taken. Plaintiff’s attorney was obligated to meet and confer prior to the deposition if an issue was going to be raised regarding the October 11, 2018 deposition and objections to the document request. In fact, at the deposition, Defendant’s counsel would not agree to a second deposition notwithstanding the claim by Plaintiff’s counsel that they were adjourning the deposition. (Dec. of Bradley Kass Esq.) The Defendant Robert Pickle is eighty eight (88) years old and Plaintiff if trying to harass him by seeking a second deposition of him by way of this motion. (Dec. of Bradley Kass Esq.) C.c.P. § 2016.040 in proscribing the requirements for a meet and confer declaration states: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” In analogy to the Plaintiff counsel’s declaration in support of the motion, Plaintiff’s counsel does not give any explanation as to why he did not attempt to try and work matters out prior to the deposition which occurred on October 11, 2018. As previously indicated, Plaintiff concedes that written objections to the documents were served prior to the deposition occurring. (Moving Dec. of Jeff Atterbury paras 2 and 16; Ex. A to Dec. of Bradley Kass Esq.) MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONoy vn w 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The case of Stewart v. Colonial Western Agency, Inc. [Mar. 2001] 87 Cal. App. 4** 1006,1016 in ruling that serious meet and confer must occur before filing a motion to compel states on pg. 1016: “The Discovery Act requires that, prior to the initiation of a motion to compel, the moving party declare that he or she has made a serious attempt to obtain ‘an informal resolution of each issue.’ (Sec. 2025, subd. (O)....) This rule is designed ‘to encourage the parties to work out their differences informally so as to avoid the necessity for al formal order...’ (cite omitted) This, in turn, will lessen the burden on the court and reduce the unnecessary expenditure of resources by litigants through promotion of informal, extrajudicial resolution of discovery disputes... (cite omitted)” The case of Obregon v. Superior Court [October 1998] 67 Cal. App. 4th 424,434 confirms the strong policy of the Discovery Act that good faith informal resolution is required prior to a motion to compel can be granted. Obregon, supra states in pertinent part on page 434: “...Thus reasonable and good faith efforts at informal resolution of discovery disputes are no doubt a key part of the discovery system...” In the instant matter, prior to the deposition occurring on October 11, 2018, it is believed that Plaintiff already intended to request that the deposition be adjourned and that a post deposition Motion to Compel would be filed. Since the Plaintiff chose to ignore the written objections to production of documents served prior to the deposition, this is grounds in and of itself to deny this motion. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONWw N By the use of such tactics, it is respectfully asserted that the plaintiff has waived the right to bring this motion and has also failed to meet and confer in good faith prior to the deposition occurring. It appears that Plaintiff tries to justify their tactic of proceeding with the deposition by asserting in the moving papers that the written objections were boilerplate and legally deficient. If this was the position of the Plaintiff then there was an obligation to meet and confer prior to the proceeding to deposition on October 11, 2018. Notwithstanding, in fact, the objections were not boilerplate at all since Plaintiff had been continuously trying to obtain estate planning documents of the Defendant and the objections raised privacy as one of the objections. (Ex. A to Dec. of Bradley Kass Esq.) The last objection of Defendant’s written objections to the deposition production of documents states: “Defendants further object to the extent that the requests violate rights of privacy and are not within the scope of permissible discovery.” (Ex. A to Dec. of Bradley Kass Esq.) There is nothing boilerplate about this objection especially since the parties have been having ongoing disputes about Plaintiffs continuous pursuit of the financial and private affairs of the Defendant Robert Pickle. (Dec. of Bradley Kass Esq.) IIr. PLAINTIFF HAS FAILED TO SHOW GOOD CAUSE EXISTS TO COMPEL A_FURTHER PRODUCTION OF A DOCUMENT I.E. A MARITAL LIVING TRUST OR TO HAVE A SECOND DEPOSITION OCCUR, AND THIS MOTION SHOULD BE DENIED AS PRODUCTION OF THE REQUESTED DOCUMENT WOULD HAVE VIOLATED THE RIGHTS OF PRIVACY OF DEFENDANT ROBERT PICKLE AND IS NOT RELEVANT TO THE SUBJECT MATTER OR LIKELY TO LEAD TO ADMISSIBLE EVIDENCE . MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONA. PRODUCTION OF THE REQUESTED DOCUMENT OF A COPY OF THE LIVING MARITAL TRUST WOULD VIOLATE THE PRIVACY RIGHTS AND PRIVILEGES OF ROBERT PICKLE AND ARE SOLELY FOR THE PURPOSE OF HARASSMENT ROBERT PICKLE AND ARE SOLBIE BORK ins yee It is respectfully asserted that the document sought i.e. living trust of Defendant Robert Pickle is not relevant to the subject matter of this action or likely to lead to admissible evidence. [see C.C.P. Sec. 2017.010] The confidential and private estate planning document that Plaintiff seeks to obtain by way of this motion is not relevant to the claims and the allegations of Plaintiff’s complaint, which concern a claim for fraudulent transfer of an interest in a house from Defendant Susan Clarke to her father Defendant Robert Pickle. (Para 11 - Complaint) It should be noted that throughout this litigation including his deposition Defendant Robert Pickle has asserted that he always owned the house and he was the individual that purchased it. (Declaration of Bradley Kass Esq.) Plaintiff seeks a copy of the living trust records solely for the purpose of and related to the finances and private affairs of Defendant Robert Pickle who is the alleged transferee of the alleged fraudulent transfer. The finances of an alleged transferee are not an issue in a fraudulent transfer claim and thus is not an element of the this lawsuit. It appears Plaintiff is on a bad faith path solely to harass Defendant Robert Pickle whose financial condition and private life is not relevant. Plaintiff seeks to invade the privacy rights of Defendant Robert Pickle by seeking records of his living trust. Civil Code Sec. 3439.04 in discussing the elements for a claim of fraudulent transfer states: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION(a) A transfer made or obligation incurred by a debtor is voidable as to a creditor, whether the creditor's claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation as follows: (1) With actual intent to hinder, delay, or defraud any creditor of the debtor. (2) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor either: (A) Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction. (B) Intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due. (b) In determining actual intent under paragraph (1) of subdivision (a), consideration may be given, among other factors, to any or all of the following: (1) Whether the transfer or obligation was to an insider. (2) Whether the debtor retained possession or control of the property transferred after the transfer. (3) Whether the transfer or obligation was disclosed or concealed. (4) Whether before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit. (5) Whether the transfer was of substantially all the debtor's assets. (6) Whether the debtor absconded. (7) Whether the debtor removed or concealed assets. (8) Whether the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONYn Ww (9) Whether the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. (10) Whether the transfer occurred shortly before or shortly after a substantial debt was incurred. (11) Whether the debtor transferred the essential assets of the business to a lienor that transferred the assets to an insider of the debtor. (c) A creditor making a claim for relief under subdivision (a) has the burden of proving the elements of the claim for relief by a preponderance of the evidence. There is no reference in the code to an element being the financial condition of the purported transferee. The entire language of Civil Code Sec. 3439.04 is solely based on the mental state and financial issues of the debtor and not of the transferee. The rights of privacy to ones estate planning records i.e. a living trust is a substantial privacy right. In complete disregard of the substantial privacy rights of Robert Pickle, Plaintiff makes this motion. Probate Code Sec. 15800 states: Except to the extent that the trust instrument otherwise provides or where the joint action of the settlor and all beneficiaries is required, during the time that a trust is revocable and the person holding the power to revoke the trust is competent: (a) The person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division. (b) The duties of the trustee are owed to the person holding the power to revoke. // MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONmB WwW NY BP Yn Ww The case of Drake v. Pinkham [May 2013] 218 Cal. App. qe 400,407 states in pertinent part regarding limitations on beneficiaries rights states on pg. 407: The limitation placed on the rights of a beneficiary by section 15800 is consistent with the principle that “[p]roperty transferred into a revocable inter vivos trust is considered the property of the settlor for the settlor's lifetime,” and thus, “the beneficiaries' interest in that property is “merely potential” and can “evaporate in a moment at the whim of the [settlor].” ’ ” (Estate of Giraldin (2012) 55 Cal.4th 1058, 1065-1066 [150 Cal. Rptr. 3d 205, 290 P.3d 199].) In analogy to the present motion, Plaintiff is even a step farther removed than a beneficiary who has merely a potential right in a living trust. Plaintiff like a potential beneficiary has no rights to invade the privacy of the trustor i.e. Robert Pickle, and Plaintiff in the moving papers has not cited any applicable authority otherwise. The California Supreme Court case of Pioneer Electronics (USA), Inc. V. Superior Court [Jan. 2007] 40 Cal. 4** 360,368 in a bank case and proscribing privacy rights states on pg. 368: “We pointed out in Valley Bank that, unlike the attorney-client or physician-patient privilege, there is “no bank-customer privilege,” and that under “existing law, when bank customer information is sought, the bank has no obligation to notify the customer of the proceedings, and disclosure freely takes place unless the bank chooses to protect the customer's interests and elects to seek a protective order on his behalf.” (Valley Bank, supra, 15 Cal.3d_ at pp. 656, 657.) Nonetheless, we concluded the state's privacy provision “extends to one's confidential financial affairs as well as to the details of one's personal life” (id. at p. 656), and we stated that “ ‘[a] bank customer's reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONinternal banking purposes.’ " (Id. at p. 657, quoting Burrows v. Superior Court (1974) 13 Cal.3d 238, 243 [118 Cal. Rptr. 166, 529 P.2d 590].)” (emphasis added) In addition, Defendant has a Constitutional right to privacy which includes financial records. [See California Constitution, Article I, Section I; Fortunato v. Superior Court [Dec. 2003] 114 Cal. App.4th 475,481] The records being sought are from the personal estate planning of the Defendant Robert Pickle. Plaintiff in her motion has failed to cite applicable authority that children have a vested interest to receive an inheritance. In fact, the Defendant Robert Pickle is free to do as he chooses with any assets he may own upon his demise. This includes any purported asset protection trust. Any assets of Defendant Robert Pickle are solely at his discretion to do as he pleases and Plaintiff has not cited any applicable authority otherwise. In a telephone conversation prior to this motion being filed Defendant’s counsel explained to Plaintiff’s counsel that Defendant Robert Pickle was asserting his privacy rights and there was no known authority by Defendant’s counsel to allow the pursuit by Plaintiff of invading Defendant Robert Pickle’s private affairs of his trust documents. Defendant’s counsel also continuously invited Plaintiff’s counsel to provide any applicable authority for such financial type discovery which has never been received. (Declaration of Bradley Kass Esq.) Iv. THE ACTIONS OF DEFENDANTS WERE TAKEN WITH SUBSTANTIAL JUSTIFICATION; AND DEFENDANTS ARE REQUESTING AN AWARD OF REASONABLE ATTORNEY'S FEES IN THE AMOUNT OF $2,010.00. AGAINST PLAINTIFF AND HER ATTORNEY FOR HAVING TO OPPOSE THIS MOTION. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITIONmB WN As previously asserted, Plaintiff is seeking a copy of the estate planning documents i.e. living trust of Defendant Robert Pickle. For the reasons discussed herein, it is respectfully asserted that the Defendants and their counsel have acted with substantial justification in protecting the privacy rights of Defendant Robert Pickle. Accordingly, regardless of the outcome of this motion it is respectfully asserted that no requested sanctions would be warranted. The conduct of Plaintiff and her counsel have compelled this opposition to being filed on a motion which they do not cite applicable authority for their requests. C.C.P. Sec. 2025.410 allows for an award of reasonable attorney fees incurred for opposing of the motion against a party. As the declaration of Bradley Kass, Esq. indicates, he has spent in excess of approximately six (6) hours preparing the opposition to this motion. His regular hourly rate for these types of services is $335.00. (Declaration of Bradley Kass, Esq.) It is therefore respectfully requested that this court issue and award of attorney fees against Plaintiff in the amount of $2,010.00. conchasrow Defendants respectfully requests this Court to deny Plaintiff’s Motion; and for an award of reasonable attorney’s fees against Plaintiff and her counsel. DATED: February 20, 2019 KASS & KASS LAW OFFICES S/ Bradlley Kass Esq. BRADLEY KASS, ESQ. Attorney for Defendants MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION 10mB WN an wo PROOF OF SERVICE I declare that: I am employed in the City of San Mateo, County of San Mateo, State of California. My business address is 1900 S. Norfolk Street, Suite 265, San Mateo, CA 94403. I am over the age of eighteen (18) years and am not a party to the within cause. On February 20, 2019, I served the within: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION TO COMPEL FURTHER DEPOSITION AND PRODUCE DOCUMENTS; AND DEFENDANT'S REQUEST FOR AN AWARD OF ATTORNEY’S FEES AGAINST PLAINTIFF AND HER COUNSEL on counsel of record in said cause by email through eFiling System as follows: Richard E. Eichenbaum, Esq. CAPUTO & VAN DER WALDE, LLP ree@vanderwalde.com Geoffrey L. Meisner, Esq. KERN, SEGAL, MURRAY gmeisner@kerniaw.com I declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on February 20, 2019, at San Mateo, California. Sheana Chandar