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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 Carrari Family Trust

Case No: 18PR00334
Hearing Date: Thu Feb 20, 2020 9:00

Nature of Proceedings: (1) Ex Parte Hearing re Lack of Portable Water (2) Motion to Disqualify Counsel (3) Motion to Vacate Orders (4) Motion to Quash Subpoena (5) Motion to Quash Subpoena (6) Amended Pet to Remove Angelina Dettamanti as Trustee

 

 

 

 

 

# 18PR00334   Matter of Carrari Family Trust Est. February 28, 2002

 

 

 

                        Hearing Date:           2/20/2020                               

 

 

 

HEARINGS

 

(1) Dettamanti’s motion to disqualify Andre, Morris & Buttery and Mullen & Henzell LLP, set aside January 15, 2019 order, vacate all pleadings after July2018, issue OSC re imposition of sanctions against counsel, and impose actual and punitive damages, legal fees, and court costs.

 

(2) Dettamanti’s motion to vacate orders and dismiss

 

(3) Motion by non-party Marcial Lopez to quash deposition subpoena for personal appearance and production, and/or for protective order, and sanctions

 

          

 

ATTORNEYS:          

Mack S. Staton of Mullen & Henzell LLP for Petitioner Linda Kopcrak, as Beneficiary

 

 James C. Buttery / Elizabeth A. Culley of Andre, Morris & Buttery for Temporary Trustee David Farmer

 

Marc E. Angelucci for Angelina Dettamanti on a limited scope basis formotion to vacate orders only

Angelina Dettamanti is in pro per on all other matters

 

Rafael G. Gutierrez for non-party Marcial Lopez

 

                                                           

 

TENTATIVE RULINGS:  

(1)  The motion to disqualify counsel is denied in its entirety. However, attorneys Staton, Buttery, Culley, and law firms Mullen & Henzell and Andre, Morris & Buttery, are ordered to permanently delete all electronic copies of the Request to Waive Court Fees which was inadvertently served upon them, and to destroy and/or return to Dettamanti all hard copies of the document. Any further use of the document’s contents will be prohibited.

 

(2) The motion to vacate orders is denied, for the reasons articulated below. Because the Court has found that Dettamanti made numerous general appearances in this action, including as early as November 29, 2018, the Court finds no basis to vacate any of the specified orders

 

 (3) The motion to quash is denied, except as articulated herein. The Court finds the deposition subpoena and its document requests to be valid and enforceable. Mr. Lopez has failed to support most of the objections he interposed, and they are therefore largely overruled. To the extent that Mr. Lopez attempts to assert and attorney-client privilege or the attorney work product privilege to the production of any documents responsive to the requests, he must provide a privilege log identifying the title (if any) and nature of the document, its date, the identification of its sender and recipient if it is a written communication of any sort, and sufficient information that would allow both the parties and the Court to evaluate the propriety of the claim that the document is privileged or protected. With respect to document request categories 16, 18, 20, and 21, Mr. Lopez need only produce responsive documents from January 1, 2016 to the present. No sanctions are awarded.

 

Discussion 

 

This case is one of a series of related  cases which  concern a trust involving various members of the Carrari family (#16PR00195, Matter of The George Miguel Carrari Trust dated November 28, 1979; #18PR00183, Matter of The George Miguel Carrari Trust dated November 28, 1979; #18PR00334, Matter of Carrari Family Trust Est. February 28, 2002), the estate of Joseph F. Carrari (#18PR00597), and an interpleader action filed by a tenant of the Carrari family ranch (#18CV06350, Durant Harvesting, Inc. v. Angela Dettamanti). The Last Will and Testament of Ferruccio Joseph Carrari was also deposited with the Court in #18WILL0339.

 

 

 

 

There are currently three motions before the Court for resolution, which will be discussed separately.

 

 

 

Motion to disqualify counsel

 

 

 

The motion is denied in its entirety. However, attorneys Staton, Buttery, Culley, and law firms Mullen & Henzell and Andre, Morris & Buttery, are ordered to permanently delete all electronic copies of the Request to Waive Court Fees which was inadvertently served upon them, and to destroy and/or return to Dettamanti all hard copies of the document. Any further use of the document’s contents will be prohibited.

 

 

 

On March 4, 2019, Angelina Dettamanti (Dettamanti) submitted a Request to Waive Court Fees in related case No. 18CV06350, entitled Durant Harvesting, Inc. v. Angelina Dettamanti. Unbeknownst to Dettamanti at the time, her attorney in that matter, Marc Angelucci, erroneously served the confidential request upon counsel in that matter, including Andre, Morris & Buttery (AM&B), who represent temporary trustee David Farmer in this matter, as well as Mullen & Henzell (M&H), who represent Linda Kopcrak in this matter. Within AM&B, the electronic service notification was received by attorney Elizabeth A. Culley (Culley). Pursuant to an intraoffice protocol, Culley forwarded it to paralegal Ellen Houser (Houser). Under the protocol, Houser would then download the documents which had been served, and either print them and provide them to attorney James C. Buttery (Buttery), or forward electronic copies of them for his review. One of the eleven service notifications received that day contained the Request to Waive Court Fees. Culley forwarded it to Houser, who downloaded and printed it, and put a copy of it on attorney Buttery’s desk, along with the other documents filed by attorney Angelucci on that day. Mr. Staton at M&H was also served with the Request for Fee Waiver.

 

 

 

Attorney Buttery contends that he was not aware of the Request to Waive Court Fees until July 2019, when he noticed it on the top of a stack of papers on his desk, and assumed it had been served on his office. He declares that he did not notice the word “confidential” on the first page of the Request, which he attributes to the fact that it had been served on his office and he therefore assumed it was not, in fact, considered to be confidential. He declares that he does not recall ever reviewing a Request to Waive Court Fees in his more than 40 years of practicing law, and has never caused one to be filed.

 

 

 

When he reviewed the document, he believed it contradicted other information of which he was aware, i.e., that Dettamanti had received a check for $200,000 approximately three months before she executed the Request for Fee Waiver, in the related case of Matter of The George Miguel Carrari Trust dated November 28, 1979 (18PR00182). Since Dettamanti had been identified as a witness for the evidentiary hearings set in August 2019, he believed he could appropriate question her credibility by asking her how she could sign the fee waiver request when she had recently received that check. He acknowledges that he offered it as an exhibit at the hearing, noting that it was objected to and the court ordered it withdrawn before it could be marked by the Clerk. He asserts that no other use has been made of the document.

 

 

 

During the evidentiary hearing, the Court expressed an intent to look into the document. At a September hearing, Dettamanti inquired about the investigation. Buttery then asked his colleagues how the document came into their possession. After review the files, Cully and Houser prepared declarations, and a Status Conference Statement was prepared for his signature, all of which were filed on November 4, 2019. The declarations explained that the document was found among a series of documents which had been electronically served upon the office by Mr. Angelucci on March 4, 2019.

 

 

 

Also following the evidentiary hearing, and because of the court’s concerns about how the document had been obtained, attorney Staton also went back into his e-mail records, and discovered that he, too, had received the document as part of the electronic service of the multiple documents by Mr. Angelucci on March 4, 2019. Staton denies having ever attempted to use, submit, file, or otherwise circulate the document.

 

 

 

Dettamanti has now filed a motion entitled “CCP 128 Motion to Disqualify James Buttery, Mack Station, Elizabeth Culley; Law Firms Andre, Morris, & Buttery, and Mullen & Henzell, Per State Fund, O’Gara; Request OSC Issue for Sanctions, Statement of Decision, and Request for Further Relief.” The body of the Notice of Motion also seeks the sate aside of the January 15, 2019 order in this case, the set aside or vacation of all pleadings after July 2018, and imposition of actual and punitive damages, legal fees, and court costs for the Estate of Joseph Carrari, The Carrari Family Trust, and Dettamanti (as Beneficiary, as “proper” Trustee, and as an individual). The body of the motion, however, never addresses anything other than disqualification.

 

 

 

            A.        Motion to disqualify AM&B, Buttery, and Culley.

 

 

 

Dettamanti has moved to disqualify attorneys Buttery, Culley, and AM&B, based upon their possession, and Buttery’s attempted presentation at the August, 2019 evidentiary hearing in this case, of the Request to Waive Court Fees filed by Dettamanti in the Durant Harvesting case. Buttery, Culley, and AM&B have opposed the motion.

 

 

 

A trial court’s authority to disqualify an attorney derives from the power inherent in every court to control, in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with the judicial proceeding before it, in every matter pertaining thereto. (Code Civ. Proc., § 128, subd. (a)(5); People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.)

 

 

 

While motions to disqualify opposing counsel are most often filed related to the conflicts of interest arising from either simultaneous or successive representations of clients with adverse interests, there exist other reasons why attorneys may be disqualified from further representation of their clients. Over the last couple of decades, the courts first established the obligations of an attorney who receives privileged or confidential documents through the inadvertence of another, and then progressed to discuss when the failure to comply with those obligations may or may not properly result in the disqualification of the attorney from further representation of a client adverse to the party whose privileged or confidential documents were inadvertently revealed.

 

 

 

In State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, the court first established the obligation of an attorney who, through the inadvertence of another, receives privileged documents. It held:

 

 

 

“When a lawyer who receives materials that obviously appear to be subject to an attorney-client privilege or otherwise clearly appear to be confidential and privileged and where it is reasonably apparent that the materials were provided or made available through inadvertence, the lawyer receiving such materials should refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender that he or she possesses material that appears to be privileged. The parties may then proceed to resolve the situation by agreement or may resort to the court for guidance with the benefit of protective orders and other judicial intervention as may be justified. We do, however, hold that whenever a lawyer ascertains that he or she may have privileged attorney-client material that was inadvertently provided by another, that lawyer must notify the party entitled to the privilege of that fact.” (State Compensation Ins. Fund v. WPS, Inc., supra, 60 Cal.App.4th at 656-657.)

 

 

 

The court further held that the burden rests on the complaining lawyer to persuasively demonstrate inadvertence, because if this were not true, an attorney might attempt to gain an advantage over his or her opponent by intentionally sending confidential material and then bringing motion to disqualify the receiving attorney. (State Compensation Ins. Fund v. WPS, Inc., supra, 60 Cal.App.4th at 657.) It quoted the decision in In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 589, which stated “Mere exposure to the confidences of an attorney does not, standing alone, warrant disqualification.” (Id.) Even so, it did not rule out the possibility that disqualification might be justified if an attorney inadvertently received confidential materials and failed to conduct himself or herself in the manner described, “assuming other factors compel disqualification.” (Id.)

 

 

 

The California Supreme Court in Rico v. Mitsubishi Motors Corporation (2007) 42 Cal.4th 807, approved the procedure set forth in State Compensation Ins. Fund v. WPS, Inc., supra, and affirmed the disqualification of a team of attorneys, after one had obtained what he almost immediately recognized to be a powerful document that was his adversary’s work product, which he knew the adversary had not intended to produce. Rather than following the procedures set forth in State Compensation Ins. Fund, however, he scrutinized the document and made his own notes on it, gave copies to co-counsel and to his experts, discussed it with his experts, and deposed his adversary’s expert with use of the document.

 

 

 

The Rico court extended the State Compensation procedures to attorney work product, and found that the offending counsel had violated them. That was not the end of the inquiry, however, and the Rico court expressed that the next question was whether disqualification was the proper remedy, noting State Compensation’s finding that mere exposure to an adversary’s confidences was insufficient, standing alone, to warrant disqualification. Noting that the conduct of counsel and use of the document had undermined the opponent’s experts and placed them at a great disadvantage, resulting in irreversible damage to the opponent, the Rico court found that the trial court did not abuse its discretion in ordering the attorneys’ disqualification.

 

 

 

In Clark v. Superior Court (2011) 196 Cal.App.4th 37, after finding that the attorneys had obtained privileged documents and violated their obligations under State Compensation Ins. Fund and Rico, the court addressed whether the trial court had abused its discretion in disqualifying them. The trial court had made findings that disqualification was necessary to protect the rights of the opponent and to preserve the integrity of the judicial proceedings, and that there was a genuine likelihood that the review of the privileged materials could affect the outcome of the proceedings. When the attorneys argued on appeal that disqualification was improper absent an affirmative showing of existing injury from the misuse of privileged documents, the court found that no existing injury must be shown, and that disqualification is proper as a prophylactic measure to prevent future prejudice to the opposing party from the information the attorney should not have possessed.

 

 

 

Dettamanti also substantially relies on O’Gara Coach Co. LLC vs. Ra (2019) 30 Cal.App.5th 1115. While O’Gara dealt with an attorney who had obtained knowledge of an adverse party’s privileged information, that knowledge was not obtained through inadvertent disclosure of the information, but rather through his previous employment as president of the adverse party prior to passing the bar and being admitted as an attorney, and his service as a primary point of contact for the company’s outside counsel. The O’Gara holdings are therefore not of particular relevance to the action, except with respect to its discussion of the propriety of disqualification as a prophylactic measure to prevent damage to the adverse party, and the necessity for vicarious disqualification of the entire firm, which is relevant only when the primary attorney has been disqualified.

 

 

 

In this case, AM&B and attorney Buttery received the fee waiver request submitted by Dettamanti in the Durant Harvest action, through the inadvertence of her attorney in that action, who electronically served the document (along with many others) at the time it was filed in March 2019. Although he has practiced law for more than 40 years, he contends he has never reviewed a Request to Waive Court Fees, and has never caused one to be filed. He did not notice that the document was marked “Confidential,” and believes that likely would not have concerned him in any event, because the document was served upon him. He attempted to use the document at the evidentiary hearing for purposes of challenging Dettamanti’s credibility, because he could not understand how she could possibly qualify for a fee waiver, given that she had received a check for $200,000 in another of the related cases, only a few months prior.

 

 

 

The contents of the document have no relevance to any of the related cases, or to Dettamanti’s case strategies in any of the cases; the contents are confidential solely because they contain private financial information. The credibility issue could have been reached by referring to the fact that a fee waiver had been sought at all—which is a matter of public record—without reference to any of the underlying private financial information. Further, given that Buttery’s use of the confidential document, while improper, was not done with consciousness of its impropriety (given his lack of familiarity with the fee waiver process and the fact that the financial information provided by the fee waiver applicant is statutorily confidential under government Code section 68633(f)), there does not appear to be any existing prejudice from his knowledge of the fee waiver and its contents, nor does it appear that there is any possibility of damage to Dettamanti in the future, based upon that knowledge.

 

 

 

As a result, while Buttery’s reading and attempted use of the document was improper, disqualification of Buttery or any members of his firm are not warranted under the facts of this case. Consequently, the Court will deny the motion for disqualification of attorney Buttery, attorney Culley, and the AM&B law firm.

 

 

 

The Court will, however, order the attorneys, the firm, and anyone affiliated with or employed by the firm, to permanently delete all electronic copies of the Request to Waive Court Fees which was inadvertently served upon them, and to destroy and/or return to Dettamanti all hard copies of the document. Any further use of the document’s contents will be prohibited.

 

 

 

            B.         Motion to disqualify M&H and Staton

 

 

 

The motion also seeks to disqualify attorney Staton and M&H. Although Dettamanti acknowledges that he took no action regarding the fee waiver, she contends that certain of his conduct indicates his possible misuse of the fee waiver document, including Staton’s attachment of a confidential Sheriff’s Investigation Report in another case (civil restraining order case 18CV00604, entitled Joseph F. Carrari vs. Linda Kopcrak) on February 28, 2018 (prior to the filing of the initial petition in the current case on July 12, 2018). She further discusses an audio recording of an unspecified hearing in an unspecified case on August 9, 2019 (court records do not reflect any court proceedings in this case on August 9, 2019), in which Mr. Staton purportedly stated “You’ll find Ms. Dettamanti is the most manipulative and evil person you will ever meet,” prior to the entry into the courtroom of Dettamanti and her counsel, which she characterizes as per se defamatory, intended to bias the Court, and requiring disqualification. Dettamanti further contends that M&H attorney Nathan Klouda also slandered her by stating that she was the greatest threat to trust property and operations. Finally, she contends that Station’s litigation conduct in filing an amended motion for terminating and monetary sanctions against her in related case 18PR00182 only days after Buttery attempted to present the Fee Waiver document as an exhibit, indicates his possible misuse of the fee waiver information.

 

 

 

Because Mr. Staton made no attempt to use the document in any way, its inadvertent service upon him provides even less support for the disqualification of Staton and M&H than it did for attorney Buttery and his firm. To the extent the motion is based upon attorney Staton’s receipt of the document, it is denied, for the same reasons (articulated above) that the motion to disqualify attorneys Buttery and Culley and AM&B was denied. The Court will, however, impose the same order with respect to the document that it imposed on AM&B and its personnel. Attorney Staton, the M&H firm, and anyone affiliated with or employed by the firm, is ordered to permanently delete all electronic copies of the Request to Waive Court Fees which was inadvertently served upon them, and to destroy and/or return to Dettamanti all hard copies of the document. Any further use of the document’s contents will be prohibited.

 

 

 

With respect to the additional conduct which Dettamanti contends supports Staton’s disqualification either as circumstantial evidence that he misused the fee waiver information, or otherwise, none of these incidents have any bearing on any information called for in a fee waiver request, and cannot in any way be seen as circumstantial evidence of attorney Staton’s purported misuse of the request. As noted by the Kopcrak opposition, to the extent the motion is based upon comments made in court proceedings, such comments are protected by the absolute judicial privilege set forth in Civil Code section 47. Similarly, Dettamanti has not articulated any other legitimate basis for disqualification of attorney Staton or M&H based upon this information, nor has she cited any authority to support such disqualification, other than that related to the purported misuse of privileged information, which has been rejected by this Court as a proper basis for disqualification.

 

 

 

The Court finds that there is no basis for disqualification of attorney Staton or M&H based upon anything set forth in Dettamanti’s papers, and to the extent the motion is based upon anything other than attorney Staton’s receipt of the Fee Waiver Request, the motion for disqualification will also be denied.

 

 

 

            C.        Other orders and/or relief sought in motion

 

 

 

The motion to disqualify the attorneys also purports, in its notice of motion, to seek other relief. Specifically, it seeks to set aside or vacate the January 15, 2019 order in this case, it seeks to set aside or vacate all pleadings filed on or after July 2018, it seeks an OSC why sanctions should not be imposed against attorneys Buttery, Culley, and Staton, and the law firms of AM&B and M&H, and it seeks a finding of actual and punitive damages, including legal fees, and court costs, to be awarded to The Estate of Joseph Carrari, The Carrari Family Trust, and to Dettamanti, as beneficiary, as proper Trustee, and as an individual.

 

 

 

Those requests are never mentioned again. No authorities are cited to support the award of any such relief, nor is any argument presented why they would be either available or proper. Consequently, the Court deems Dettamanti to have waived any right to judicial determination on any of those issues as part of its resolution of the disqualification motion. To the extent Dettamanti seeks to have any such issues resolved, they should be presented in a separate motion, citing appropriate legal authority to support her contention that such orders are proper, and including competent evidence of the factual information necessary for the proper consideration of the issues by the Court.

 

 

 

Motion to vacate orders

 

 

 

The motion is denied. Because the Court has found that Dettamanti made numerous general appearances in this action, including as early as November 29, 2018, the Court finds no basis to vacate any of the specified orders

 

 

 

The motion seeks to vacate orders made in this case by the Honorable Timothy Staffel on November 28, 2018, November 30, 2018, and January 15, 2019, on the basis that the Court lacked fundamental jurisdiction over her to make any of the orders.

 

 

 

            A.        Background facts.

 

 

 

In order to understand the jurisdictional issues, it is necessary to understand the history of the case, at least up to the time of the January 15 order—the last order challenged by Dettamanti. [This is not intended to be a full summary of the case; rather, it is a summary of the events leading up to the orders challenged by Dettamanti, and a brief indication of what is currently pending in the Probate Court.]

 

 

 

This action (18PR00334) was originally filed by Linda Kopcrak on July 12, 2018, as a petition to remove Joseph F. Carrari as Trustee of The Marital Trust and The Credit Shelter Trust, established March 18, 2015, under the Carrari Family Trust, dated February 28, 2002, due to his susceptibility to undue influence by Angelina Dettamanti, and claims that breaches of fiduciary duty had resulted therefrom. It alleged that Dettamanti had originally become familiar with Joseph Carrari in September 2016, when Carrari was 82 years old and Dettamanti was 33. It articulated her isolation of Carrari and complete take-over of his life, to the exclusion of his family, friends, longtime doctors, advisors, and estate planning attorneys, the latter of which were replaced by Dettamanti’s chosen doctors, advisors, and estate planning attorneys. It further alleged her undue influence over Joseph, resulting in his disposing of trust assets in a manner contrary to his interests and the terms of the trust, and so as to obtain substantial Trust funds for her sole benefit. It also alleged that Dettamanti had a history of elder abuse and exploitation.

 

 

 

Joseph Carrari answered the petition on September 28, 2018. He then died on November 25, 2018, before any further proceedings took place with respect to the Petition.

 

 

 

On November 27, 2018, Kopcrak filed an ex parte application for OSC why preliminary injunction should not issue and for temporary restraining order. Kopcrak sought a TRO preventing Dettamanti or anyone acting with her or on her behalf from disposing of Joseph’s remains, and an OSC requiring Dettamanti so show cause why she should not be enjoined from having control over the disposition of Joseph’s remains, an order permitting Joseph’s children to have exclusive control over funeral arrangements, and an order showing cause why Dettamanti and any of their employees, agents, or persons she has permitted to live in Joseph’s residence might have a right to continue to reside therein. She further sought a TRO enjoining Dettamanti or anyone acting with her or on her behalf from disposing of any assets held by The Carrari Family Trust and any sub-trusts created thereunder, and an OSC requiring Dettamanti to show cause why she should not be enjoined from disposing of any assets held by the Carrari Family Trust or its sub-trusts. Kopcrak contended that the timing and circumstances surrounding Joseph’s death were suspicious, given the procedural posture of the civil cases in which he was involved, and she wished to be afforded the opportunity to perform a private autopsy, at her expense, and to make funeral arrangements for her father in accordance with his wishes.

 

 

 

The application was heard by Judge Staffel on November 28, 2018, at which time he granted the TRO as to Joseph’s remains pending further hearing. The Minute Order from the hearing further reflects that “The issue with respect to the property, the Court is freezing all assets, property shall not be disposed of or distributed, and the current occupants residing on the property are allowed to remain pending further hearing.” He then set an evidentiary hearing for November 30, 2018. The Court directed Mr. Staton to prepare a formal order.

 

 

 

Although Joseph was deceased, his attorney, James McKiernan, purported to file multiple oppositions to the ex parte application on his behalf. The oppositions attached various estate planning documents dated April 12, 2017, including a Second Amendment to the Carrari Family Trust which identified Dettamanti as the sole trustee of the Survivor’s Trust, an Advance Health Care Directive allowing Dettamanti to make post mortem decisions regarding Joseph, including funeral and burial arrangements, and to have the final say on an autopsy, and a Durable Power of Attorney for Management of Property and Personal Affairs, appointing Dettamanti as Joseph’s attorney in fact for his person and estate. The second opposition stated that Dettamanti, as successor trustee for Carrari, and/or as his personal representative, had not been substituted into the petition proceedings, and had not been given notice of or served with the ex parte application, although the Court issued orders prohibiting her from promptly performing her duties. It contended that Dettamanti was not under the jurisdiction of the court, since she had not been substituted into the action as a necessary party, and was not served notice documents concerning the November 30 hearing. It contended that the court had no authority to order an autopsy, and that Joseph had opposed an autopsy based upon his religious beliefs. McKiernan submitted to the Court two documents entitled Certificate of Religious Belief, one signed by Dettamanti, and one signed by one Sylvia Ramirez, purportedly a caregiver. Both signatories declared that they knew, worked for, and observed Joe Carrari, and knew that he wished to have a traditional Catholic funeral, burial, and no autopsy.

 

 

 

A formal order was prepared after the November 28, 2018 hearing, in compliance with the Judge’s direction. With respect to the property issues, it states:

 

 

 

“4.        Pending further order of this Court:

 

A. All assets of the Ranch and any of the Trusts are ordered frozen.

 

B. All bank accounts of the Ranch or any of the Trusts are ordered frozen.

 

C. Neither Angelina Dettamanti or any of her associates will remove any items from the Ranch pending further order of this Court.”

 

 

 

While Judge Staffel made changes elsewhere in the order which was provided to him, this provision remained unchanged, and he signed the order on December 3, 2018. [Kopcrak served a Notice of Entry of Order related to this order on December 6, 2018, which was served upon, among others, attorney McKiernan and upon Dettamanti, the latter at two separate physical addresses: P.O. Box 852, Solvang, CA 93464, and P.O. Box 556, Los Alamos, CA 93440.]

 

 

 

Dettamanti now contends that the order submitted by Kopcrak’s counsel was a “false” order. She points to a reporter’s transcript of the November 28, 2018 hearing, in which Judge Staffel stated: “I think we ought to have a temporary restraining order in place with conditions, allow the current occupant of the premises to remain with certain conditions, no disposal of any assets, and we also need to freeze certain accounts I take it. So freeze all the assets, allow the occupant to remain in the property for the time being and no transfer of any assets and we will freeze any bank accounts.” She contends the formal order is “false,” because it stated that she could not remove “any” property from the ranch, while Judge Staffel meant that she could not dispose of trust assets. The signed order also allowed Dettamanti to remain at the ranch pending further order of the Court.

 

 

 

On November 29, 2018, attorney McKiernan filed a Petition for Writ of Mandate/Prohibition with the Second District Court of Appeal, Division Six, requesting a stay of proceedings, purportedly on behalf of Joseph F. Carrari and Angelina Dettamanti as petitioners. The verification provided, in relevant part: I, Angelina Dettamanti, acting as a successor Trustee to the Carrari Family Trust, established February 28, 2002, and in my own right, based upon the notarized estate documents of Joseph F. Carrari, am the Petitioner in this proceeding.” She signed the verification: “Angelina Dettamanti, Petitioner. Trustee, the Carrari Family Trust, Established 2/28/2002.” The Petition was summarily denied by the court on November 30, 2018.

 

 

 

On November 30, 2018, Judge Staffel presided over the evidentiary hearing. Attorney Staton appeared for Kopcrak; attorney McKiernan purported to appear for the Carrari estate, stating that Dettamanti did not have representation there. Counsel stipulated that Joseph’s children remained beneficiaries under the trust for purposes of the current proceeding. With respect to Dettamanti, Mr. Staton represented that he served her through Mr. McKiernan. The Court noted that Dettamanti needed to be joined into the action in some form, and attorney Staton responded that they would be doing so. The Court ordered that the autopsy could go forward, with Kopcrak paying all costs associated with it, commenting that he would prefer to take the route of preserving evidence which may or may not be relevant in future proceedings, as opposed to losing it now and for all time. He stated that the parties could then proceed with the planning of the services in accordance with Joseph’s wishes as specified in his health care directive, and requested that the family be consulted. The Court ordered Mr. Staton to share the autopsy report with Dettamanti or her counsel. When attorney McKiernan expressed confusion as to how the Court could order Dettamanti, a non-party, to not do things (related to the freeze on assets which the Court had imposed on November 28, 2019) the Court relied upon his stipulation that the beneficiaries of the original trust remained the beneficiaries after the amendment, with standing to petition with respect to the internal affairs of the trust, and on that basis he was issuing a temporary stay pending further orders of the court. The Court made clear that all other orders from the previous hearing were ordered to remain in full force and effect, until further order of the Court.

 

 

 

On December 3, 2018, Dettamanti filed a Notice of Appeal of the November 28, 2018 and November 30, 2018. The Notice of Appeal is signed by Angelina Dettamanti, and identifies the appellant (at ¶ 1) as “Angelina Dettamanti, Successor Trustee of the Carrari Family Trust, established 2/28/02.” The Notice of Appeal set forth an address for Dettamanti at P.O. Box 556, Los Alamos, CA 93440. [The appeal was dismissed by the Court of Appeal on January 10, 2019, based upon Dettamanti’s failure to pay the costs of the Clerk’s Transcript; the Remittitur was issued on March 13, 2019.]

 

 

 

On December 6, 2018, Kopcrak proceeded to formally bring Dettamanti into the action, by filing a Petition to Remove Angelina Dettamanti as Trustee; to Appoint Independent Trustee; and Confirm Title to Trust Assets, setting a hearing date of January 15, 2019. [A Notice of Hearing with respect to this petition was filed by Kopcrak on January 3, 2019, setting forth the January 15, 2019 hearing date, and reflecting service by mail of both the Notice of Hearing and the underlying petition upon attorney McKiernan, and upon Dettamanti at P.O. Box 556, Los Alamos, CA 93440-0556.]

 

 

 

On December 11, 2018, Kopcrak filed a Petition to Appoint Temporary Trustee, also with a hearing date of January 15, 2019. [A Notice of Hearing with respect to this petition was filed by Kopcrak on December 13, 2018, setting forth the January 15, 2019 hearing date, and reflecting service by mail of the Notice of Hearing and the underlying petition upon Dettamanti at P.O. Box 556, Los Alamos, CA 93440.]

 

 

 

Dettamanti contends that she accepted succession as Trustee on December 12, 2018. She contends that she then contacted attorney Staton by e-mail with several questions, including asking him not to serve her by email because the email address he had used was “over quota” and having problems. She does not attach her e-mail, but provides Mr. Staton’s response. Mr. Staton advised Dettamanti that he had been serving documents on her in the George Carrari Trust matter at the address supplied by the Substitution of Attorney form she signed when Mr. Goldrick withdraw as her attorney in that case, but the documents had been returned by the Post Office. He advised her of her obligation to give notice of a changed address, and noted that when they saw a Los Alamos address, they began using that one. He requested that she provide the correct address. He acknowledged having sent courtesy copies of documents at her e-mail address which had been provided by Mr. McKiernan, and to advise him if she no longer wished to receive electronic courtesy copies.

 

 

 

On January 14, 2019, Kopcrak filed an Affidavit of Unsuccessful Service, documenting nine separate attempts to personally serve Dettamanti with Summons and Petition at the Carrari Ranch where she was living, between December 12, 2018 and January 2, 2019. Dettamanti was contacted by telephone on a number of occasions, and several times said that she would call back when she could meet deputies, but never did so. At other times, the phone was not answered, and messages were left. The gate around the residence was routinely locked, there was no response to inquiries, and cards left taped to the gate were not responded to.

 

 

 

Dettamanti currently declares that “Staton did not send the petitions for removal of me as Trustee to my Los Alamos P.O. Box 556 Address.” She denies having been served with summons and the petition, and denies having dodged service of the petition. Even so, she “found out about the hearing” and retained attorney Rodney Lee to appear on her behalf. She contends that Kopcrak’s counsel stated that service had been completed by mail, but failed to advise the court that the petitions had been returned by the Post Office. She therefore contends that she was not a party to 18PR00334 “during” the January 15 hearing.

 

 

 

At the hearing, Mr. Lee noted that he had only been retained a few days prior, and had not filed anything to indicate his appearance in the case. He stated that his primary purpose in appearing was to ask for time to prepare written objections, because the operative instrument that Kopcrak was working with had been superseded by a later instrument which would render the current proceedings moot, because it disinherits her from the survivor’s trust, thereby eliminating her standing to proceed on the petitions. [This contradicts the representations made by McKiernan to Judge Staffel at the November hearings, i.e., that the amendment had not removed Joseph’s children as beneficiaries. The Court notes further that the California Supreme Court definitively eliminated the standing objection in its recent decision in Barefoot v. Jennings (January 23, 2020) 2020 WL 372523, which held that the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.]

 

 

 

Mr. Lee further expressed incredulity that his client could have done anything so egregious in the brief time since Mr. Carrari had died to warrant her removal as trustee. Judge Staffel noted that Mr. Lee was technically not in the case, in that no appearance or substitution had been filed.

 

 

 

Judge Staffel indicated his intent to issue the temporary orders that had been requested, and order the temporary removal of Dettamanti as the temporary successor trustee. With respect to the assets, would permit the trustee to marshal the assets and but not make any determinations on what should happen next. He indicated that he was not going to grant any permanent orders, and would give Dettamanti’s counsel an opportunity to address them. In response to Mr. Lee’s inquiry whether there was a proof of service on the petition for temporary relief, he was advised that Dettamanti had been served by mail, at the address she had provided to Judge Rigali in the Matter of The George Carrari Trust, Special Needs Trust (18PR00182). [The Court notes that matters involving 18PR00597, Estate of Joseph F. Carrari, were also discussed at the January 15, 2019 hearing.]

 

 

 

Judge Staffel signed the provided order on the temporary appointment petition. The order first recited that, on proof made to the satisfaction of the Court, the Court found all notices of hearing had been given as required by law, and all facts alleged in the Petition were true. It proceeded to immediately suspend Dettamanti as Trustee of The Survivor’s Trust established under The Carrari Family Trust, and ordered that she have no power over the Carrari Family Trust or any sub-trusts established thereunder. It appointed David Farmer as Temporary Trustee of the Carrari Family Trust and all sub-trusts thereunder, and ordered Dettamanti to deliver all financial records, books, checkbooks, and any other documents concerning the trust or sub-trusts to Mullen & Henzell for delivery to Mr. Farmer.

 

 

 

The provided order on the second petition was amended by Judge Staffel in various places before he signed it, to make clear that the appointment of Mr. Farmer was as Temporary Trustee. That order made similar recitals, and similarly removed Dettamanti as Trustee and appointed David Farmer as Temporary Trustee of the trust and sub-trusts; ordered Dettamanti to deliver the trusts’ financial records and documents to Mullen & Henzell; ordered Dettamanti to deed a percentage ownership interest in the real property at 1108 Fairway Vista Drive in Santa Maria to Mr. Farmer as successor Trustee of the trust, with the percentage equal to the funds taken from The Carrari Family Trust to purchase the residence, relative to the total purchase price for the residence; ordered Dettamanti to deliver a portion of the $200,000 earnest money deposit she received in the sale of that residence; and reserved issues of damages that may be awarded to Mr. Farmer from Dettamanti under Probate Code section 859, and the issue of an award of attorneys’ fees and costs to Petitioner Kopcrak.

 

 

 

Upon Mr. Lee’s request for clarification, Judge Staffel stated that the temporary powers awarded to Mr. Farmer would continue until further order of the Court. Upon Mr. Staton’s request, Mr. Lee agreed to accept service of the orders and of all future documents on Dettamanti’s behalf. A future hearing was set.

 

 

 

[The Court notes that on January 30, 2019 (with a formal order entered January 31, 2019), in the course of an ex parte application made in the related interpleader action, Durant Harvesting Inc. v. Dettamanti (18CV06350), in which the temporary trustee sought release interpleaded funds, Judge Staffel also rescinded his prior order that Dettamanti could continue to reside at the Ranch Property, and ordered her to leave the ranch immediately. While it was not appropriate for Judge Staffel to have made the order effectively evicting Dettamanti in the course of a hearing in the interpleader action, he in fact made the order in that action, and not in this one. That order was the subject of an unpublished Court of Appeal opinion issued January 13, 2020, which reversed the order with instructions for the trial court to determine whether Dettamanti had a lease or was a tenant, to make findings on the nature of her tenancy or occupancy, and to determine whether she has a right of possession, a right to receive a 30-day notice, summons, and complaint in unlawful detainer.]

 

 

 

On February 14, 2019, through newly substituted counsel (i.e., not Mr. Lee or his firm), Dettamanti filed a Petition for Order Confirming Validity of Amendment to The Carrari Family Trust, which alleged that it sought to validate an apparent Third Amendment to the Joseph Carrari Trust, dated December 4, 2017, which provides not only that Dettamanti will serve as sole Successor Trustee, but further disinherits Joseph Carrari’s children, and names Dettamanti as the sole beneficiary of Joseph Carrari’s Survivor’s Trust.

 

 

 

On February 21, 2019, Judge Staffel recused himself from the action, after Dettamanti filed a federal civil rights action against him (which was dismissed by the federal court shortly after it was filed). The action was then transferred to the South County Probate Department of the Santa Barbara Superior Court.

 

 

 

Kopcrak filed opposition to Dettamanti’s Petition on March 20, 2019.

 

 

 

On April 24, 2019, Dettamanti filed opposition to Kopcrak’s Petition to remove Dettamanti as Trustee, Appoint Independent Trustee, and Confirm Title to Trust Assets.

 

 

 

On October 8, 2019, Temporary Trustee David Farmer filed a notice indicating his intention to resign as temporary trustee, because of a medical issue, and requested that he be relieved as trustee as soon as is reasonably possible.

 

 

 

On October 16, 2019, Dettamanti filed an ex parte application to be reinstated as Trustee, which the Court continued for response and hearing. Kopcrak and Farmer filed responses opposing Dettamanti’s reinstatement as trustee.

 

 

 

On November 6, 2019, Kopcrak filed her First Amended Petition to Remove Angelina Dettamanti as Trustee; to Appoint Independent Trustee; and Confirm Title to Trust Assets.

 

 

 

On February 3, 2020, Dettamanti apparently filed a Request for Dismissal, without prejudice, of the petition she had filed on February 14, 2019. (Oddly, the Request for Dismissal purports to have been signed on October 7, 2019.) While that Petition had actually been entitled “Petition for Order Confirming Validity of Amendment to the Carrari Family Trust,” her Request for Dismissal misidentified the it as “Petition for Verification of 3rd Amendment to Carrari Family Trust, filed 2/15/19.” The dismissal was entered by the clerk on the same day. Since no petition was filed on 2/15, and since the Petition for Order Confirming Validity of amendment to the Carrari Family Trust was filed on 2/14/19, the Court will deem Dettamanti to have dismissed the petition in which she sought to validate the amendment which disinherited Joe Carrari’s children, in favor of making Dettamanti the sole beneficiary of the trust.

 

 

 

            B.         Motion papers

 

 

 

Dettamanti has now moved to vacate the orders of November 28, 2018, November 30, 2018, and January 15, 2019, which were made by Judge Staffel, and to dismiss this action for lack of jurisdiction and failure to join her to the action. She contends there was never any valid service of Summons and Complaint [sic—Petition], and that the designated orders are void for lack of notice and lack of personal jurisdiction over her. She contends that only an Acknowledgement of Receipt or personal service of a summons upon her could vest the Court with jurisdiction to act. She contends that any order or judgment entered without personal jurisdiction is void. She asserts that Staton admitted that his petitions were returned in the mail as undeliverable, but did not mention that to Judge Staffel, characterizing it as an “unethical fraud upon the Court.” She argues that had Staton informed the Court that the petitions had been returned, it would not have deemed the petitions unopposed. She concludes that all of the orders made were void. Further, she contends that even if a subsequent general appearance establishes personal jurisdiction, that does not validate a void order, in that personal jurisdiction does not apply retroactively, citing In re Marriage of Smith (1982) 135 Cal.App.3d 543. Additionally, she argues that a subsequent modification of a void order does not make it valid. Finally, Dettamanti argues Kopcrak filed petitions prior to the time Dettamanti accepted succession as Trustee. While Judge Staffel stated that Dettamanti needed to be joined, and Staton agreed to do so, he never joined Dettamanti as a party to the case.

 

 

 

Petitioner Kopcrak has opposed the motion. She disputes the claim that the Court lacked “fundamental jurisdiction” over Dettamanti (an absence of authority over the subject matter or the parties) since there is no claim that the Trust wasn’t a California trust, or that Dettamanti wasn’t a California resident, such that the Court would not have had any authority over them; rather, when a Court has such fundamental jurisdiction to act, but merely acts in excess of its jurisdiction, its orders are voidable, not void. (People v. Gerold (2009) 174 Cal.App.4th 781, 786-787.) Her challenge is to the Court’s exercise of jurisdiction, not its fundamental jurisdiction.

 

 

 

Kopcrak contends that Dettamanti’s counsel made a general appearance on her behalf at the January 15, hearing, thus waiving any challenge to the Court’s exercise of jurisdiction over her at that time (citing Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 965), and that the general appearance by her counsel constituted an acceptance of the validity of the November 28 and November 30 orders (citing In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 10-11). Kopcrak further contends that Dettamanti waived any challenge to the November 28 and 30 orders, because she filed a Notice of Appeal from both, without either challenging the exercise of jurisdiction over her in the trial court, or specifying the Notice of Appeal that the appeal was limited to a jurisdictional challenge (citing In re Jennifer O.(2010) 184 Cal.App.4th 539, 548; and Bank of America Nt. Trust & Sav. Assn v. Carr (1956) 138 Cal.App.2d 727, 733.). In doing so, she made a general appearance in the action, and waived any challenge to the Court’s exercise of jurisdiction over her with respect to those orders. She further asserts that service of summons and complaint on Dettamanti was not necessary in any event, because the Court’s jurisdiction was in rem, not in personam. The November 28 and 30 hearings related to what would happen to the Trust assets and the body of Trustee Joe Carrari, in the immediate aftermath of his death. Finally, Kopcrak asserts that Mr. McKiernan represented Dettamanti’s interests at the November 28 and 30 hearings, in appearing at the hearing, filing opposition papers, and arguing in opposition to the ex parte application on behalf of the Trustee of the Trust, even though Mr. Carrari was dead and Dettamanti purported to be the successor trustee. Kopcrak note 5 times in the transcript of the 11/28 hearing where McKiernan made arguments or representations in support of Dettamanti. At the 11/30 hearing, he represented the estate (which did not exist), but in effect acted as attorney for the trustee, which Dettamanti claimed to be, again advancing her interests. He also filed a petition for writ relief in the Court of Appeal, making the same arguments on Dettamanti’s behalf that she currently makes.

 

 

 

Dettamanti’s reply papers drafted in a manner that is very difficult to understand, repeatedly raises issues irrelevant to the issue of whether the specified orders should be vacated, and repeatedly accuses opposing counsel denying reality and committing misconduct and fraud. However, she apparently contends that Judge Staffel did not accept an appearance by Mr. Lee at the 1/15/19 hearing. She contends that the petition to remove her as trustee predated her “acceptance of succession” as trustee, that service of summons was not completed by mail (apparently because of Staton’s acknowledgement that documents mailed to Dettamanti’s Solvang address had been returned by the post office, and because Mr. Lee’s appearance was not accepted by the Court. Dettamanti accuses Staton of failing to join her into the action, despite his agreement to do so at the 11/28/18 hearing. She contends she could not have made a general appearance by appealing, citing Ziegler v. Nickel (1998) 64 Cal.App.4th 545 [which holds that a trustee cannot appear in pro per, since to do so would constitute engaging in the unauthorized practice of law].) She further apparently contends her appeal could not be an appearance in the action, because she had not yet been joined as a party at the time she appealed. She contends that any argument regarding in rem jurisdiction over either the assets of the trust or the body of Mr. Carrari is “ridiculous,” and the argument that Mr. McKiernan represented Dettamanti at the hearings is “a falsehood, and libel,” among other things.

 

 

 

            C.        Legal analysis

 

 

 

Dettamanti has moved to vacate the 11/28/18, 11/30/18, and 1/15/19 orders issued by Judge Staffel, and to dismiss this action for lack of jurisdiction and failure to join her to the action.

 

 

 

First, it is helpful to reiterate the orders which are at issue: On November 28, 2018, Judge Staffel granted the TRO with respect to Joseph Carrari’s remains, and set an evidentiary hearing on the injunction for November 30, 2018. He also froze the assets of the trust, ordering that they not be disposed of or distributed, and allowed the current occupants on the ranch property to remain pending further hearing.

 

 

 

On November 30, 2018, after the evidentiary hearing, Judge Staffel ordered that the autopsy could go forward, and allowed for the subsequent planning of services for Mr. Carrari. He noted that all previous orders remained in full force and effect, pending further order of the court.

 

 

 

On January 15, 2019, temporary orders were issued on the petition to remove Dettamanti as trustee, appoint independent trustee, and confirm title to trust proceeds (filed December 6, 2018), and on the petition to appoint a temporary trustee (filed December 11, 2018). At the 1/15/19 hearing, Judge Staffel ordered the temporary removal of Dettamanti as trustee, the appointment of Farmer as temporary trustee, and ordered Dettamanti to deliver all financial records or other documents concerning the trust or subtrusts to Mullen & Henzell, among other orders. Judge Staffel declined to issue any permanent orders, and noted that the temporary powers awarded to Mr. Farmer would continue until further order of the court.

 

 

 

The order barring Dettamanti from the ranch property was not made on January 15, and was not made in this case. Consequently, it is not a subject of this motion, which specified only the 11/28, 11/30, and 1/15 orders made in this case.

 

 

 

The Court disagrees with Dettamanti that there is a lack of fundamental jurisdiction over her in this case, and that the orders are therefore necessarily void, as asserted in a number of places in her motion. “Fundamental jurisdiction” is an entire absence of power to hear or determine the case; an absence of authority over the subject matter or the parties, which cannot be conferred by waiver, estoppel or consent. (See Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 339) As noted by Kopcrak in opposition to the motion, fundamental jurisdiction would not exist in this case if the Trust were not a California Trust, and, possibly, if Dettamanti were not a California resident. This Court clearly has fundamental jurisdiction over this action, and the orders are therefore not void outright.

 

 

 

That of which Dettamanti complains is not a lack of fundamental jurisdiction, but rather a complaint that Judge Staffel improperly exercised jurisdiction over her, in issuing the orders, i.e., that he acted in excess of his jurisdiction, because she had not been served or formally made a party. Because a court that acts in excess of jurisdiction still has jurisdiction over the subject matter and the parties in the fundamental sense, any such act is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time. (Kabran v. Sharp Memorial Hospital, supra, 2 Cal.5th at pp. 339-340.)

 

 

 

In this case, Kopcrak asserts that Dettamanti waived any challenge to the orders, and waived any failure to personally serve her with summons or any of the petitions filed by Kopcrak, in that Dettamanti made general appearances in this action at various points in time and in various ways. A general appearance is one in which the defendant participates in the action in a manner which recognizes the court’s jurisdiction. If the defendant raises an issue for resolution or seeks relief available only if the court has jurisdiction over the defendant, then the appearance is a general one. (Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250.) A general appearance by a party is equivalent to personal service of summons on such party. (Code Civ. Proc., § 410.50, subd. (a).) Once acquired, jurisdiction over of the court over the parties and the subject matter of an action continues throughout subsequent proceedings in the action. (Code Civ. Proc., § 410.50, subd. (b).) The filing of an appeal which raises issues not related to the issue of jurisdiction constitutes such a general appearance. (See Bank of America National Trust & Savings Association v. Carr (1956) 138 Cal.App.2d 727, 734-735.)

 

 

 

The Court agrees that Dettamanti waived any challenge to the orders, and made a general appearance in this action as early as November 29, 2018. The only orders entered by the trial court on November 28, 2018, were temporary ones, which were readdressed by the trial court on November 30, 2018. They primarily related to the disposition of Mr. Carrari’s body, and included a freeze of trust assets pending further order of the court. The very next day, on November 29, 2018, attorney McKiernan filed a Petition for Writ of Mandate/Prohibition, requesting a Stay, in the Second District Court of Appeal, Division Six. While the face of the petition identified only the late Joseph F. Carrari, Trustee of the Carrari Family Trust, as Petitioner, the Petition was verified by Angelina Dettamanti, who on that single page twice identified herself as the Petitioner, including both in the capacity as successor trustee to the trust, and in her own right. The body of the Petition itself also repeatedly identified Dettamanti as a Petitioner, and states that she opposed the motion, that she was a person beneficially interested in the issuance of the writ because she would lose substantial rights by the trial court’s interference with decedent’s directives, that she had performed all conditions precedent to the filing of the petition, and that she had no plain, speedy, and adequate remedy in the ordinary course of law other than through the Petition. It requested the Court of Appeal to command the trial court to vacate its 11/28/18 order “against Petitioner, Dettamanti,” not on jurisdictional grounds, but based upon her contention that Carrari’s Advance Health Care Directive gave her the power to determine the disposition of Carrari’s remains.

 

 

 

The Petition very clearly raised an issue for resolution, and sought extraordinary relief, which would only be available if the court had jurisdiction over Dettamanti. Consequently, it constituted a general appearance in the action. The Court therefore finds that the trial court had jurisdiction over Dettamanti no later than November 29, 2018, when the Petition was filed. The Court of Appeal summarily denied the petition that same day.

 

 

 

Following the November 30 hearing, Dettamanti once again made clear that she had generally appeared in the action, by filing a general appeal of the trial court’s November 28, 2018 and November 30, 2018, orders. This time, she filed the Notice of Appeal on December 3, 2018, without use of counsel, designating herself as Successor Trustee of the Carrari Family Trust. The Notice of Appeal did not restrict the appeal to the issues of jurisdiction of the court to issue orders to her. Dettamanti was, once again, seeking relief from the Court of Appeal which could not have been sought unless the trial court had jurisdiction over her, and also constituted a general appearance, removing any doubt with respect to the trial court’s jurisdiction over her.

 

 

 

In her reply, Dettamanti argues that her filing of a Notice of Appeal in pro per could not possibly have constituted her general appearance in the action, because she filed it as successor trustee of the trust, and a trustee cannot appear in pro per, since to do so would constitute engaging in the unauthorized practice of law, relying on Ziegler v. Nickel (1998) 64 Cal.App.4th 545. However, Ziegler has absolutely no bearing on the question of whether a trial court has jurisdiction over a party, and that issue does not appear in the decision. Rather, had the appeal not been dismissed by the Court of Appeal, the remedy would have been to order Dettamanti to retain counsel to represent her in the appeal in her capacity as successor trustee. Ziegler has no bearing on the issue of whether Dettamanti’s filing of the Notice of Appeal constituted a “general appearance” for purposes of establishing the jurisdiction of the trial court over her.

 

 

 

While Dettamanti’s motion repeatedly complains that Kopcrak never made her a proper party to the action, as Judge Staffel had directed, the contention has no merit. Indeed, there was nothing to be gained by making Dettamanti a party to the original petition seeking to remove Joseph Carrari as trustee, since he was effectively removed as trustee by his death. Rather, Kopcrak acted to make Dettamanti a party to the trust action through the filing of the December 6 petition. Because Dettamanti had already made multiple general appearances in the action as of that date, thereby acceding to the trial court’s jurisdiction over her, there was no need to serve her with summons and the petition in any manner set forth in Code of Civil Procedure sections 415.10, et seq. (e.g., personal service, substituted service, service by publication, etc.). Those are required to acquire jurisdiction; here, the court already had jurisdiction.

 

 

 

Dettamanti’s declaration in support of the motion to vacate states that “Staton did not send the petitions for removal of me as Trustee to my Los Alamos P.O. Box 556 Address.” In addition to the fact that Dettamanti would have no personal knowledge of whether Staton had mailed the petition to her, rendering incompetent her declaration statement, she does not deny having received the petition. Certainly, Kopcrak originally mailed the December 6 petition to Dettamanti at a Solvang address she had provided in one of the related actions. Unfortunately, the document was returned by the Post Office. She claims she told Mr. Staton on December 12, 2018 not to serve her at that address, and instead to use the Los Alamos address. On January 3, 2019, Kopcrak filed a Notice of Hearing on the petition that sought to remove Dettamanti as Trustee, which was served upon her at the Los Alamos address on January 3, 2019. The Notice states that a copy of the petition referred to in the notice (i.e., the petition to remove Dettamanti as trustee) was served on that date, along with the notice,.

 

 

 

There is a statutory presumption of receipt of that which is regularly mailed. (Evid. Code, § 641.) A presumption of receipt is rebutted upon testimony denying receipt. (Bear Creek Master Assn. v. Edwards (2005) 130 Cal.App.4th 1470, 1486.) Here, however, Dettamanti never affirmatively denies having received the petition; her declaration only (incompetently) states that Staton did not send it to her at her Los Alamos post office box. Consequently, the presumption of receipt has not been rebutted. The evidence before the Court shows that the petition to remove Dettamanti as trustee, as well as the petition to appoint a temporary trustee, were both served upon Dettamanti at her Los Alamos address.

 

 

 

Dettamanti further declared that she was never “served a petition for removal of Trustee, per CCP 415.030 and 417.010. There is no signed receipt of summons on the record as required thus, I was not a party to the case # 18PR00334 during the 1/15/2019 court hearing, where I had been removal [sic] as trustee.” The Court notes that there are no Sections 415.030 or 417.010 within the Code of Civil Procedure, and presumes that Dettamanti was referring to Sections 415.30 and 417.10, which relate to service by mail with Notice and Acknowledgement of Receipt, and proof of such service, respectively. As noted above, however, such service is not necessary if a general appearance has previously been made. (See Code Civ. Proc., § 415.50, subd. (a).)

 

 

 

Certainly, the petition to remove her was not sent until January 3, 2019, and she could potentially have raised an objection that she had received insufficient notice of the petition to be able to address it at the January 15, 2019 hearing. However, to the extent any such objection existed, it is waived if the objecting party does anything other than stand on the objection and request a continuance. (See Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.) Here, attorney Rodney Lee appeared at the January 15, 2019 hearing, and argued its merits. His first comments, after announcing his appearance on Dettamanti’s behalf on CourtCall, involved stating that he had only just been retained, and that he was appearing to ask for time to prepare written objections, because there was another amendment to the petition which disinherited Kopcrak and her siblings, and they therefore had no standing to remove Dettamanti as trustee. He further argued that Dettamanti could not have done anything so egregious, in the short time since Carrari had died, to warrant the temporary of her powers as trustee.

 

 

 

Further, to the extent that Mr. Lee was seeking additional time to address the merits of the petition (i.e., the remedy for a notice violation), he was successful. Judge Staffel made clear that the orders he issued on January 15, 2019, were temporary in nature, and set a further hearing for April 2019 to allow counsel the opportunity to formally appear in the case on Dettamanti’s behalf respond in writing before any permanent orders were issued. In issuing the orders, Judge Staffel noted that what he was doing was preserving the assets, while everything else was sorted out. Of course, that hearing never occurred, because Judge Staffel recused himself in mid-February, 2019.

 

 

 

Dettamanti further contends that Mr. Lee’s appearance on her behalf at the January 15, 2019 hearing was not a “general appearance” in the action, for jurisdictional purposes, because Judge Staffel refused to accept his appearance. Of course, according to this Court’s findings above, Dettamanti had made a “general appearance” long before the January 15 hearing. Additionally, whether or not Judge Staffel was willing to recognize Mr. Lee as appearing as Dettamanti’s counsel of record at the January 15 hearing, bears no relationship to whether his appearance on that date also constituted a “general appearance” by Dettamanti on that date, for jurisdictional purposes. Rather than making a special appearance for the limited purpose of asserting a lack of jurisdiction, he appeared on Dettamanti’s behalf and raised the merits of issues that could only be reached if the trial court had jurisdiction over Dettamanti. Not only would it be considered a “general appearance” on Dettamanti’s behalf (see Factor Health Management v. Superior Court (2005) 132 Cal.App.4th 246, 250), it also waived any notice defect with respect to the hearing on the petition. (See Reedy v. Bussell, supra.)

 

 

 

Because the Court has found that Dettamanti made numerous general appearances in this action, including as early as November 29, 2018, the Court finds no basis to vacate any of the specified orders. The November 28 order was extremely temporary in nature, and resulted in the immediate scheduling of the November 30 evidentiary hearing. Dettamanti acceded to the court’s jurisdiction by seeking writ relief from the Court of Appeal as an acknowledged Petitioner, on grounds unrelated to the Court’s jurisdiction over her. She did so again on December 3 when she appealed from the November 28 and November 30 orders. As a result, there was no need for summons to be served upon her in any way in order to acquire jurisdiction; the Court already had jurisdiction. Because there is no basis to vacate any of the orders, the motion will be denied in its entirety.

 

 

 

Motion to quash deposition subpoena for personal appearance and production, and/or for protective order, and sanctions

 

 

 

The motion to quash is denied, except as articulated herein. The Court finds the deposition subpoena and its document requests to be valid and enforceable. Mr. Lopez has failed to support most of the objections he interposed, and they are therefore largely overruled. To the extent that Mr. Lopez attempts to assert and attorney-client privilege or the attorney work product privilege to the production of any documents responsive to the requests, he must provide a privilege log identifying the title (if any) and nature of the document, its date, the identification of its sender and recipient if it is a written communication of any sort, and sufficient information that would allow both the parties and the Court to evaluate the propriety of the claim that the document is privileged or protected. With respect to document request categories 16, 18, 20, and 21, Mr. Lopez need only produce responsive documents from January 1, 2016 to the present. No sanctions are awarded.

 

 

 

The Court incorporates by reference its discussion, within the motion to vacate, of the substance of the original Petition to Remove Angelina Dettamanti as Trustee; to Appoint Independent Trustee; and Confirm Title to Trust Assets, filed by Kopcrak on December 6, 2018, and the first amended petition, filed November 6, 2019.

 

 

 

The Trust’s major asset is the Carrari Ranch, which consists of more than 3,000 acres of agricultural and grazing land near Santa Maria. Non-party Marcial Lopez is apparently a tenant of a 45-acre portion of the Carrari Ranch. Consequently, any rents he has paid are Trust assets. Because he has at times paid his rent in cash, and because there is no record that the cash ended up in the ranch’s bank accounts, Kopcrak sought information regarding Lopez’s lease of the land, and evidence regarding his payments of rent or any other payments made to the ranch, and to whom he made such payments.

 

 

 

The Court has little information about Rancho Alamo LLC, but understands that it is an entity which was formed by Dettamanti in mid-2018, apparently for the purpose of holding the property, and/or managing the business, of the Carrari Ranch.

 

 

 

            A.        Background of dispute.

 

 

 

Kopcrak served a deposition subpoena for personal appearance and production of documents on Lopez on November 14, 2019, setting a deposition to be held on December 10, 2019. The production request sought 21 categories of documents (it contained 22 numbered categories, but Nos. 11 and 14 inadvertently sought the identical documents). They included documents (#1) and communications (#3) relating to the agricultural lease effective 1/1/18 between Lopez and the Carrari Family Trust; documents relating to rent or other payments for lease of the farm ground on the Carrari Ranch (#2); documents (#4) and communications (#5) relating to any agreement, express or otherwise, for the leasing of farm ground located on the Carrari Ranch; communications since 1/1/16 with Angelina Dettamanti (#6), Joe Carrari (#7), any member of the Carrari family (#8), any member of the Kopcrak family (#9), Johnny Branquino (#10), and Mario Dettamanti (##11 & 14); communications since 1/1/16 concerning Joe Carrari, the Trust and sub-trusts, the Carrari Ranch, or Rancho Alamo LLC, with attorney James McKiernan (#12), Effie Anastassioiu (#13), Frank Maldanado (#15); communications since 1/1/16 with Rancho Alamo LLC concerning Joe Carrari, the Trust and sub-trusts, or the Carrari Ranch (#16); documents (#17) or communications (#18) with any service providers relating to any work to be performed on the Carrari Ranch; any documents (#19) or communications (#20) related to the Carrari Ranch; and all documents relating to (#21) and communications with or relating to (#22) Rancho Alamo LLC.

 

 

 

Attorney R. G. Gutierrez sent a lengthy meet and confer letter dated November 19, 2019, to Kopcrak’s attorney, Mack S. Staton, via e-mail and U.S. Mail. The letter demanded, in a strident manner, that the subpoena be withdrawn, characterizing the very serving of the subpoena as “a colossal error in judgment.” The letter threatened that if the subpoena were not withdrawn, Mr. Gutierrez would not only move to quash, seek a protective order, and ask for monetary sanctions, but would also sue attorney Staton and his client for abuse of process, and seek punitive damages against them. He expressed the great pleasure he would experience when the “jury slaps you with punitive damages.” He noted that he was not available on the date for the deposition, and demanded that his office first be consulted to ensure both he and his client are available “before seeking to ambush my client with a subpoena.” The letter contended that the subpoena was defective, and that the document requests were objectionable based on privacy, burden, harassment, attorney-client privilege or attorney work product, and were an abuse of process because they purportedly sought to gain an unfair advantage in unspecified future litigation. It likened the document requests as perhaps being acceptable “if we were living in East Berlin prior to 1989, and you were a member of the Stasi,” and expressed counsel’s “failure to see how in this day and age a member of the bar of the State of California who, I assume, however mistaken that assumption might be, is in full control of his faculties” could believe the discovery suitable.

 

 

 

Mr. Staton responded to the letter on November 20, 2019, expressing that he was troubled by its tone, given that the two attorneys did not know each other. Mr. Staton noted that he had no desire to target Mr. Lopez, and were only seeking the evidence he had regarding his lease of the Carrari land, the rent which had been paid, and to whom the rent had been paid. He noted that his client was a beneficiary of the Trust, who needs the information. He further noted that Mr. Lopez had ignored past subpoenas, which he believe to have been done at Ms. Dettamanti’s behest. He stated that if he was supplied with a date in February that is clear on his calendar, and agree the subpoena is in force, he would reset the deposition. He closed by requesting that, in the future, Mr. Gutierrez call him to work things out, before writing a letter containing unfounded accusations.

 

 

 

On November 25, 2019, Mr. Gutierrez sent a second letter, expressing his “great concern, but not surprise” at the failure to withdraw the subpoena, and reiterating that his client will not attend the deposition or produce any documents pursuant to the subpoena. The letter asserts that Lopez has a valid lease and is a tenant in good standing, having paid the rent for the year 2019 in advance, and that Lopez and/or Dettamanti already provided Mr. Buttery (counsel for the temporary trustee) with a copy of the lease and receipts paid in 2018 and 2019. It further asserts that the information sought is unrelated and irrelevant to the issues in 18PR00334. As a result, it concludes that even the temporary trustee could not depose Lopez about his lease or rent payments under case 18PR00334, and so Kopcrak definitely could not, asserting that because Kopcrak is only considered a “potential beneficiary,” she does not have standing to take action against Lopez even if he did not have a valid lease or had not paid rent, and that a beneficiary’s only recourse is to demand an account from the trustee or sue to compel the trustee to evict a tenant. The letter characterized the requests, service of the subpoena, and the refusal to withdraw it as “conduct so outrageous as to evince on your part ‘malice’ as defined by California Civil Code section 3294.” The letter accused Staton of conspiring with Buttery to intimidate and oppress Mr. Lopez. Finally, the letter again threatened “retribution,” in the form of a future lawsuit against Staton.

 

 

 

On December 5, 2019, Lopez served written objections to the document requests. In addition to a series of general objections, Lopez individually objected to each category of documents sought. The objections asserted that the individual request (1) was overly broad, (2) was unduly burdensome or harassing because it seeks information/documents unrelated to the subject matter of the probate action, or beyond the scope of permissible discovery (3) violated Mr. Lopez’s right to privacy, (4) sought information/documents which are subject to attorney/client privilege or attorney work product, (5) placed the burden and cost of producing documents on a non-party, although it is equally available to petitioner from other sources, including parties to the probate action and their representatives, and (6) sought to gain an unfair advantage relative to future litigation contemplated by Mr. Lopez, thereby constituting and abuse of process. The objections to Nos. 1, 3, 19, 20, 21, and 22 add that the request does not specifically the items to be produced ore reasonably particularize the category of items to be produced. The objections to Nos. 12, 13, 15, and 16 add that the request is compound. The response to No. 14 notes that it is a duplicate of No. 11.

 

 

 

The current motion to quash, for protective order, and for sanctions, was filed the same day, December 5, 2019.

 

 

 

By letter dated December 6, 2019, Mr. Gutierrez purported to memorialize a conversation with Mr. Staton on that date. The second and third paragraphs of the letter, rather than memorializing the conversation, largely consisted of insults directed toward Mr. Staton, although Mr. Gutierrez made quite clear that he had no intention of allowing Mr. Lopez to appear for any deposition or produce any documents sought by the subpoena. He found incredible that Staton had refused to agree to pay Lopez’s costs for the motion, and refused to agree to confine the subject matter and scope of any future deposition or production requests to issues relevant to the case and not to intrude on Lopez’s right to privacy. Mr. Gutierrez noted having asked whether Staton had deposed Dettamanti, when Staton had stated that Dettamanti had only recently come into Mr. Carrari’s life and took anything, and was believed to have taken the rent money, and Staton’s response that he did not need to have deposed her first, and wanted to know Lopez’s communications with Dettamanti prior to deposing her. Gutierrez noted that he had advised Staton that he believed the rent money had been paid by his client directly to Joe Carrari. After Staton advised that he was entitled to all of their communications, Staton had proceeded to argue the merits of the motion to quash, “as if there was anything to argue about.” He concluded by stating that Staton’s “reasoning about things is so devoid of logic so as to really make me wonder whether it is safe for you to be out in public, let alone practice law.”

 

 

 

            B.         Motion papers

 

 

 

Lopez seeks an order quashing the subpoena entirely, or alternatively issuing a protective order excusing him from having to comply with the deposition subpoena (the motion does not articulate how this differs from quashing the subpoena entirely), or alternatively, limiting the scope of questioning and the production of relevant records. It also seeks sanctions of $7,440.00 against Kopcrak and attorney Staton, for making the motion.

 

 

 

The motion first contends that the subpoena is procedurally defective, in listing the Cook Division of the court, in the caption listing the Respondent as “Joseph F. Carrari, Trustee,” when Mr. Carrari died in November 2018, and listing the address and telephone number of Lopez’s attorney rather than of Lopez in Item 1.

 

 

 

He contends that the subpoena should be quashed, for a number of reasons. First, he contends that the document requests are “exceedingly broad, oppressive and burdensome,” in asking for all communications since 1/1/16 with certain persons, and in all documents and communications relating to Carrari Ranch and Rancho Alamo LLC without limitation as to time. Second, he contends further the document requests are not set forth with reasonable particularity, characterizing them as “nothing short of impermissible blanket demands for documents.” Third, he contends the subpoena seeks documents that are irrelevant and not calculated to lead to the discovery of admissible evidence, since the requests do not seek information about the Trust, Mr. Carrari’s mental capacity, or the trust amendment in controversy. Fourth, he contends the requests seek information protected by his right to privacy, and Kopcrak must therefore establish a compelling need for the discovery, citing Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853-1854.

 

 

 

The motion then contends that, if the subpoena is not quashed altogether, a protective order should issue relieving Lopez from the obligation to comply with the document request “until such time as that portion has been modified to eliminate all overbroad and intrusive requests.

 

 

 

Finally he seeks sanctions of $7,440, representing 12.3 hours of his time at $600/hour, incurred in the meet and confer discussions and preparation of the motion, plus the $60 filing fee.

 

 

 

The motion is accompanied by a Separate Statement, although it is not in the format required by California Rules of Court, Rule 3.1345(c).

 

 

 

Petitioner Kopcrak has opposed the motion to quash. She sets forth the background of the dispute, with respect to the claim that Dettamanti entered the life of Kopcrak’s father, Joe Carrari, only two years before his death at almost 85 years of age, and through undue influence convinced him to make her the sole trustee and sole beneficiary of the Carrari Family Trust, worth tens of millions of dollars, in place of his children. Carrari Ranch is the major asset of the Trust, and Mr. Lopez is a long-time tenant of a small portion of the Ranch. Consequently, any amounts he pays for use of the land belongs to the Trust, and she wants to know where the money went. While Lopez is not a party to the petition, Kopcrak contends that he is not disinterested, and his attorney has aggressively advocated for Dettamanti. Kopcrak seeks the information through the subpoena because she believes Lopez might be assisting Dettamanti, and she wants to know what Lopez knows about the dispute and the underlying facts from his communications with Dettamanti and others affiliated with her or acting on her behalf. She urges the court to deny the motion in its entirety, and order Lopez to attend his deposition and produce all documents in his possession.

 

 

 

Kopcrak contends that none of the objections to production have merit. First, the “reasonable particularity/undue burden” argument is meritless, since from the standpoint of Mr. Lopez—a farmer and not a big corporate operation—a request for all communications and documents between Lopez and Dettamanti is reasonably particularized. He need only look at his own computer and files to determine responsive documents. Further, Lopez has not sustained his burden of providing factual support of his claim of undue burden. Second, the relevance argument is meritless; Lopez does not specify which requests are objectionable on relevance grounds. Further, Kopcrak has shown the reasonable relationship between the materials sought to be produced and the issues involved in the case. Any doubts about relevance should be resolved in favor of permitting discovery.

 

 

 

Third, the privacy objection is meritless, in the Lopez does not specify which requests violate his privacy rights, or what rights are purportedly violated. Further, the California Supreme Court disapproved the cases relied upon by Lopez in Williams v. Superior Court (2017) 3 Cal.5th 531, establishing that the compelling interest in the discovery need only be shown in cases involving invasions of interests fundamental to personal autonomy, such as involuntary sterilization or the freedom to pursue consensual familial relationships, etc. Otherwise, only general balancing tests are employed, and since Lopez has failed to even identify which privacy right was implicated, he has failed to support his objection.

 

 

 

Fourth, Kopcrak contends privilege and work product objection is meritless, since he has failed to provide sufficient response for the merits of the claim to be evaluated, as required by Code of Civil Procedure section 2031.240(c)(1). Finally, the “equally available” objection fails, because Lopez has not identified any documents or categories of documents which are equally available from other sources, it is not a valid objection unless the request requires the responding party to make more than a reasonable inquiry, and it asks Kopcrak to take on simple faith that one or more unidentified persons has the precise documents that Lopez has.

 

 

 

Kopcrak further asserts that the nature of Mr. Lopez’s attorney’s pre-motion communications made clear that he was not interested in resolving the dispute, but in scorching the earth, and sets forth examples of the name-calling, insults, and sarcastic comments made by Mr. Gutierrez.

 

 

 

Finally, Kopcrak asserts that even if the motion is not denied in its entirety, Lopez’s sanctions request is unreasonable, both because counsel’s “atrocious conduct” warrants their denial, and because his billing rate is unreasonable and suspect, particularly for an attorney who has practiced in California for less than 5 years.

 

 

 

No reply papers were filed.

 

 

 

            C.        Analysis

 

 

 

The Court finds that Lopez has failed to establish the vast majority of his objections to the subpoena for deposition testimony and production of documents. First, the purported defects in the subpoena are trivial in nature, and do not impact its validity or enforceability.

 

 

 

The operative petition in this action relates to the nature of Dettamanti’s conduct in allegedly isolating and exercising undue influence upon the elderly Joe Carrari in a two year period, which resulted in her being named as sole successor trustee of the trust following Carrari’s death. At the time the motion papers were filed, Dettamanti was also seeking to confirm the validity of a further amendment to Carrari’s trust which resulted in the complete disinheritance of his children, and the naming of Dettamanti not only as the sole trustee of the Trust, but as its sole beneficiary of trust assets totaling in the tens of millions of dollars as well. While that petition was dismissed, without prejudice, she still contends that she should be the successor trustee of the trust.

 

 

 

Dettamanti was also acting as ranch manager prior to and immediately after Carrari’s death, and was deeply involved in the business of the ranch—the primary trust asset. Whether a ranch tenant had lease agreements with the ranch, whether the tenant had been making payments to the ranch, to whom the payments had been made, and in what form the payments had been made, and whether or how those payments had been accounted for, are all relevant to the issues surrounding Dettamanti’s conduct underlying Kopcrak’s petition, as well as Dettamanti’s own petition to confirm the trust amendments. Also relevant are any conversations or communications which Mr. Lopez may have had with the various individuals who appear to be the players in the scenario presented to the Court. The Court expressly finds that the information sought by the document requests to be relevant to the issues in these proceedings. In any event, under the Legislature’s “very liberal and flexible standard of relevancy,” doubts as to relevance are resolved in favor of disclosure. (See Williams v. Superior Court (2017) 3 Cal.5th 531, 542.)

 

 

 

Mr. Lopez has also failed to support his objection based upon privacy. His motion papers assert that a person had a right to privacy over his or her confidential financial affairs, but do not explain how that right would be infringed. The only financial information at issue relates to his tenancy in a portion of Carrari Ranch, which is a Trust asset. Those financial affairs are relevant to the issues in these proceedings, wherein the proper administration of the trust—which would include its collection of and accounting for rental payments—is a necessary part of the case. To the extent that Mr. Lopez claims any right to financial privacy in his dealings with the Trust, the Court finds them outweighed by Kopcrak’s right to discover facts relevant to the action. As pointed out by Kopcrak’s opposition papers, there is no longer any requirement to establish a compelling need for the discovery of information protected by the right to privacy, unless interests fundamental to personal autonomy are involved (see Williams v. Superior Court, supra), and Mr. Lopez’s claim of a right to financial privacy does not constitute such an interest.

 

 

 

The motion also fails to support a burden objection, in failing to provide evidence of the burden which would necessarily be involved in obtaining the documents sought by the subpoena. That Mr. Lopez contends that he has already supplied the information to the temporary trustee, David Farmer, does not impact his duty to comply with the subpoena. Indeed, if he has done so, there would be virtually no burden involved in his also producing the information in response to the subpoena. Further, given the nature of Mr. Lopez’s apparently small enterprise—involving the lease of 45 acres of land—the requests do not appear to this Court to be either overly broad, or insufficiently particularized. No attempt was made in the motion to support the objection that a few of the requests were compound, and to the extent any such objection may have been viable, it has been waived.

 

 

 

No factual showing was made to support the contention that the documents sought were protected by the attorney-client privilege, or attorney work product protection. Mr. Gutierrez’s declaration comments regarding his retention by Mr. Lopez would appear to refute any contention that the documents sought are protected by any attorney-client privilege involving Mr. Gutierrez, or that any of the documents are his attorney work-product. To the extent any true assertion of attorney-client privilege or attorney work product protection are made with respect to any document or documents which are responsive to the categories requested, Mr. Lopez must provide the parties to this action with a privilege log identifying the title and nature of the document, its date, the identification of its sender and recipient if it is a written communication of any sort or a written memorandum of an oral communication, and sufficient information that would allow both Kopcrak and the Court to evaluate the propriety of the claim that the document is privileged or protected.

 

 

 

The only complaint made by Lopez which the Court finds to be valid, is that certain of the requests are overly broad because they are unlimited as to time. Given that Mr. Lopez is purportedly a long-time tenant of the Carrari Ranch, the requests for all documents or communications with any service providers relating to any work to be performed on Carrari Ranch (## 16 & 18), and all documents or communications related to the Carrari Ranch (## 20 & 21) are clearly over-inclusive. Given that the current proceedings relate to Dettamanti’s alleged undue influence over Joe Carrari which resulted in her being named in trust amendments as the sole trustee and sole beneficiary of the trust, and given that Dettamanti is alleged to have only come into Joe Carrari’s life in approximately 2016, the Court will modify the scope of these requests (##16, 18, 20, & 21) to refer only to those responsive documents from January 1, 2016 to the present.

 

 

 

With respect to the requests for all documents relating to Rancho Alamo LLC (#21) and all communications with or relating to Rancho Alamo LLC (#22), there does not appear to be any legitimate basis for objection to their disclosure, based upon the failure to include a time limitation on the documents, since Rancho Alamo LLC (the records for which reflect Dettamanti attorney Marc Angelucci as its Agent for Service of Process) has existed for less than 2 years. Consequently, the Court will overrule the objection as it relates to these requests.

 

 

 

In summary, the Court finds the deposition subpoena and its document requests to be valid and enforceable. Mr. Lopez has failed to support most of the objections he interposed, and they are therefore largely overruled. To the extent that Mr. Lopez attempts to assert and attorney-client privilege or the attorney work product privilege to the production of any documents responsive to the requests, he must provide a privilege log identifying the title (if any) and nature of the document, its date, the identification of its sender and recipient if it is a written communication of any sort or a written memorandum of an oral communication, and sufficient information that would allow both the parties and the Court to evaluate the propriety of the claim that the document is privileged or protected. With respect to document request categories 16, 18, 20, and 21, Mr. Lopez need only produce responsive documents from January 1, 2016 to the present. No sanctions will be awarded.

 

 

 

 

 

The Court feels compelled to note that it finds the tone and tenor of Mr. Gutierrez’s communications in this case are troubling. The use of name-calling, insults, and derisive and derogatory comments in professional communications is highly unprofessional, and will not be tolerated by those who practice before this Court.

 

 

 

The Court directs counsel to Appendix 5 of the Santa Barbara Superior Court Local Rules, entitled “Guidelines for Attorneys Practicing Before the Santa Barbara County Superior Court.” Specifically, Principles A.3. [“Counsel should all times be civil and courteous in communicating with adversaries, whether in writing or orally. A lawyer should not behave offensively, derogatorily or discourteously even when his or her client so desires. If necessary, a lawyer should advise a client that he or she will not engage in such conduct, even if directed.”]; C.1. [providing, in relevant part: “Lawyers should treat judges, counsel, parties, witnesses, and court personnel in a civil and courteous manner, not only in court but in depositions, conferences, and all other written and oral communications.”]; and C.2. [“A lawyer shall avoid personal attacks on other counsel. Even if the zealous representation of a client may necessitate allegations of wrongdoing on the part of an adverse party or opposing counsel, a lawyer must review such allegations to ensure that they are justified.”].

 

The Court admonishes all counsel to at all times conduct themselves with the utmost civility and respect.

 

 
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