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Tentative Ruling
Judge Colleen Sterne
Department 5 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107

TRUST

Matter of Helge T Grahn Family Trust

Case No: 19PR00160
Hearing Date: Thu Jan 16, 2020 9:00

Nature of Proceedings: (1) Motion to Compel Production of Business Records (2) Petition to Determine Questions of Trust Construction

Matter of Helge T. Grahn Family Trust, #19PR00160, Judge Sterne

 

Hearing Date:                January 16, 2020

 

Matter:                         

Motion for Order to Compel Production of Business Records

                                 

Attorneys:                     

For Petitioner: Diana B. Mercier (Reetz, Fox & Bartlett)

For Trustee: Jana S. Johnston (Mullen & Henzell)

 

Tentative Ruling: The court continues the hearing on petitioner Matthew A. Grahn’s Motion for Order to Compel Production of Business Records to February 20, 2020, at 9:00 a.m., to provide petitioner the opportunity to submit proper proof of service on Chase Bank and Wells Fargo Bank, N.A.

 

Background and Petition: On April 25, 2019, petitioner Matthew A. Grahn (“Matthew”) filed a Petition for Order Determining Questions of Trust Construction; Title to Property; and for Instructions to Trustee. The trust at issue is the Helge T. Grahn Family Trust (“Trust”) created by Helge T. Grahn (“Helge”) on February 25, 2009. Helge died on June 18, 2018. Linda S. Grahn (“Linda”) is the trustee of the Trust and a beneficiary. Petitioner is also a beneficiary.

 

 

On November 5, 2019, petitioner issued deposition subpoenas for the production of business records to Chase Bank and Wells Fargo Bank seeking all documents for a 12-year period (May 1, 2006 to June 18, 2018) for specific accounts and “Named Parties,” including all signature cards, account agreements, statements, customer correspondence files, wire transfer documents, and documents related to certificates of deposit. The “Named Parties” are “Helge T. Grahn (SSN ending XXXX); Helge Terry Grahn; Helge T. Grahn and Linda S. Grahn; Helge T. Grahn or Linda S. Grahn; Helga T. Grahn, Trustee of the Helge T. Grahn Family Trust: and/or Linda S. Grahn, Trustee of the Helge T. Grahn Family Trust.” Excluded from this list are accounts held solely by Linda S. Grahn in her individual capacity. Linda Grahn objected to the subpoenas and the banks have indicated they will not comply without a court order.

 

Motion: Matthew moves to compel Wells Fargo and Chase to comply with the deposition subpoenas. Linda opposes the motion on several grounds, including that the motion is not properly served on Chase and Wells Fargo.

 

Matthew served the motion on Chase and Wells Fargo by mail. CRC 3.1346 provides: “A written notice and all moving papers supporting a motion to compel an answer to a deposition question or to compel production of a document or tangible thing from a nonparty deponent must be personally served on the nonparty deponent unless the nonparty deponent agrees to accept service by mail or electronic service at an address or electronic service address specified on the deposition record.”

 

In the reply, Matthew argues that the rule does not apply because he does not seek to compel an answer to a deposition question or production of a tangible thing. But he does seek documents. The subpoena is a deposition subpoena, so the banks are deponents. The rule applies.

 

Matthew says there is no prejudice to Linda. But that is not the issue. The rule provides for personal service in order for the court to have jurisdiction and to provide due process to the entities Matthew wants the court to make subject to an order.

 

Matthew says that the banks have notice of the hearing. In support of this, he attaches to his reply an email from a Legal Document Review Specialist at Chase thanking counsel for the motion papers and stating that Chase “will continue to stand down” until it gets an order from the court. There are a number of problems with this purported evidence. There is no declaration providing a foundation for its admissibility. New evidence is not permitted with reply papers. Jay v. Mahaffey, 218 Cal.App.4th 1522, 1537 (2013). And there is nothing indicating that Wells Fargo has notice.

 

The court will continue the hearing on the motion to February 20, 2020, at 9:00 a.m., to provide Matthew the opportunity to submit proper proof of service.

 
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