Shelden v. Grossman
| Decision Date | 28 July 2003 |
| Docket Number | B159407. |
| Court | California Court of Appeals Court of Appeals |
| Parties | ORLYNN DEON SHELDEN et al., Plaintiffs and Appellants, v. N. MATTHEW GROSSMAN et al., Defendants and Respondents. |
As Modified on Denial of Reharing August 25, 2003, Reported at: 2003 Cal. App. Unpub. LEXIS 8071. No change in Judgment.
APPEAL from an order of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. BC 232943. Robert M. Letteau, Judge.
Affirmed.
Davis & Heubeck, Joseph Daniel Davis and Charlotte E. Costan, for Plaintiff and Appellant OrLynn Deon Shelden and Appellant Joseph Daniel Davis.
Parker, Milliken, Clark, O'Hara & Samuelian, Richard D. Robins, Gary Ganchrow, for Defendants and Respondents N. Matthew Grossman, Nicholas M. Brown, and Thomas L. Harner, Co-Executors of the Estate of Donald Thomas Leahy.
Attorney Joseph Daniel Davis (Davis) and his client plaintiff OrLynn Deon Shelden (Lindy)1 appeal an order imposing a total of $ 28,575 in sanctions upon Davis for discovery abuses. Davis represents Lindy in this action to enforce an oral promise by her stepfather to make a will leaving her certain property. After numerous discovery disputes, the matter was referred to a discovery referee, whose order was adopted by the trial court. Davis argues (1) that the order erroneously ordered the disclosure of privileged communications; (2) the order based upon the Referee's Report violates due process because the court ruled without a hearing or oral argument; and (3) the sanctions against Davis are unjustified and excessive. We affirm.
Lindy is the daughter of OrLynn Anita Leahy (OrLynn) and the stepdaughter of Donald Thomas Leahy (Donald), both of whom are deceased. OrLynn was married to Donald from 1968 until OrLynn's death on July 26, 1985. Donald died on December 3, 1999. Respondents are the executors of Donald's estate (collectively Grossman) and other heirs.
Lindy contends that OrLynn and Donald made irrevocable promises to each other to leave their respective estates (excepting certain personal property) to each other upon their deaths, with the survivor of either of them to leave their estate to Lindy. OrLynn executed a will dated January 7, 1984, in accordance with this promise. Lindy contends that Donald badgered OrLynn, who was in ill health, to execute the reciprocal wills prepared by Parker, Milliken, and that he induced OrLynn to execute her will to take advantage of certain tax benefits. Nonetheless, after preparing a will after OrLynn's death in accordance with his promise to her, Donald's will in effect at the time of his death left his $ 55 million estate to Donald's family members and charities.
We recite some of the allegations of the complaint2 and second amended complaint because drafting errors have led to much of the discovery disputes in this case. Lindy's initial complaint, filed June 6, 2000, alleged that the reciprocal promise was that Donald and OrLynn would leave each other their community property, but leave their entire estates to Lindy. The complaint alleged at Paragraph 6 that "plaintiff is informed and believes and thereon alleges that Grossman and Parker, Milliken prepared reciprocal wills for Donald and OrLynn at Donald's direction with each of Donald and OrLynn leaving the majority of their respective estates, including their respective community property interests, to each other upon their deaths, and each leaving their estate to Plaintiff if the other did not survive them." (Emphasis added.) However, the complaint also alleged that Donald promised OrLynn that if she executed a reciprocal will leaving him her community and separate property, he would manage the property and leave both OrLynn's community property interest and his own community share to Lindy upon his death.
In order to anticipate potential defenses to her claim, Lindy also alleged that a 1993 agreement (Release) entered into between her and Donald provided that he would place $ 500,000 in trust for her and make a present cash gift of $ 10,000 to her. The Release provided in relevant part that Donald had made unspecified gifts to Lindy and her son and had made loans in unspecified amounts to her, and "because of his love and affection for [OrLynn and Lindy] and only for such reasons," Donald would make the $ 510,000 in gifts to Lindy, impose a one-year moratorium on principal repayment with respect to the loans, and permit Lindy to retain all distributions with respect to her 2 percent interest in Leahy Associates.3
The Release also provided that "Lindy understands and agrees that except for the gift which Donald promises to make to her as provided [in this Agreement] and the gift which Donald promises to make to Lindy's Trust as provided [in this Agreement], neither Donald nor Donald's spouse, Carmela Leahy, has made any promises, or shall have any obligations or commitments, to make any additional gifts, bequests, or devises to Lindy, to Lindy's Trust, or to [Lindy's son], directly or indirectly, now or at any time in the future." The Release also provided that Lindy release Donald and Carmela Leahy from any claims she would have to gifts, bequests, devises, or inheritances from their estates. Lindy alleged that at the time the Release was entered into, Donald and Grossman knew of the existence of the reciprocal promises between Donald and OrLynn, but Donald failed to disclose this fact to Lindy.
Lindy moved to file a second amended complaint.4 Her basic allegations now stated that "Donald and OrLynn made irrevocable promises to each other to leave their respective estates, including their respective community and separate property interests . . . to each other upon their deaths, and each leaving their estate to Lindy if the other did not survive them." Because Lindy did not provide any explanation for the changes in the factual allegations of the second amended complaint, Grossman opposed her motion for leave to file it. In support of her motion for leave to file her second amended complaint, in order to explain the change in allegations, Lindy filed her own declaration and the declarations of attorneys Bette Epstein and Davis. Lindy stated that she understood Donald's promise to mean that he and OrLynn would leave their entire estate to the last of them to die, with the second to die to leave the entire estate to Lindy. Epstein stated that she participated in two telephone conversations with Lindy, which led Epstein to conclude that Lindy was entitled to claim the entirety of Donald's estate. However, when the complaint had been drafted, the language of paragraph 6 was not replicated throughout the complaint, with the other paragraphs only referring to community property, leading to confusion. Rather, the language "majority of their respective estates" was intended to mean both the separate and community property estates of Donald and OrLynn. Davis's declaration reiterated the substance of Epstein's declaration, pointing out that he was not a probate practitioner and consulted with Epstein and Ron Pearson (both of Crosby, Heafey, Roach & May) in order to prepare the complaint. The trial court permitted the amendment.
Lindy alleged in the second amended complaint that OrLynn wanted to leave her entire separate and community property estate to Lindy, her only child, upon her death and did not want to execute the will prepared by the law firm. Donald told OrLynn that because management of their significant real estate holdings was beyond OrLynn's capacity, if OrLynn would execute the will leaving the residence, personal property, and all of her community property interest to Donald, he would manage the properties and leave both the property bequeathed to him by OrLynn and his own separate and community property interests to Lindy upon his death.
In July 2000, Lindy filed a claim in Donald's probate proceedings seeking her share of community property interests pursuant to the allegedly breached oral agreement. In December 2000, she amended the claim to include separate property interests. The court ordered the amended claim stricken on the grounds it was untimely filed.
Lindy's deposition commenced on August 13, 2001. However, due to Davis's numerous objections to questions and instructions to Lindy not to answer questions, the deposition was halted.
Grossman filed a motion for protective order to control Davis's conduct at Lindy's deposition and seeking sanctions of $ 22,278.5 The motion was based upon Davis's alleged conduct during deposition in which he coached Lindy, made speaking objections, unilaterally recessed the deposition, and testified on Lindy's behalf. Furthermore, Davis made derogatory remarks, insulted Grossman's counsel, Richard Clark (Clark), and read magazines containing pictures of scantily clad women during the deposition.6 Grossman contended Davis's conduct violated The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(8) []; The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(11) []; and The Superior Court of Los Angeles County Local Rules, rule 7.12(e)(9) [].7
Grossman also filed a motion to compel answers to 64 deposition questions and for production of documents, and sought sanctions of $ 14,973.
Grossman's evidence submitted in support of the motion(s) divided the questions into several categories, set the questions forth in full, and discussed the propriety of Davis's objections. Question...
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