Metropolitan News-Enterprise
Page1
Court of Appeal:
Sanction Imposed on Herzog, Others Was Fully Justified
DecisionComes in Much-Litigated Dispute Over Control of $40 Million Trust
Bya MetNews Staff Writer
Ian“Buddy” Herzog, a one-time luminary in the plaintiffs’ bar, yesterday continuedon a losing streak in the Court of Appeal, with a $6,000 sanction imposed onhim, two associates and a client being affirmed by the Fourth District’s Div.Three in the latest development in litigation over the assets of nonagenarianThomas S. Tedesco, a conservatee.
Thesanction was imposed by Orange Superior Court Judge David Belz on Herzog—the1983 president of what was then the Los Angeles Trial Lawyers Association and1991 president of what was known as the California Trial LawyersAssociation—and on Evan D. Marshall, both of Herzog, Yuhas, Ehrlich &Ardell, APC, on attorney Russell L. Davis, and on client Debra Wear. Wear isamong those seeking Tedesco’s assets; she is the daughter of Tedesco’s secondwife, Gloria Tedesco.
Themother and daughter (by a previous marriage) are pitted against Tedesco’s owndaughter—who, Wear asserts in her reply brief, “exploited Tedesco’s2013incapacity to gain control of the trust…, committed forgery…,misappropriated assets and deceived Tom as to changes to his trust…while it isWear who sought independent representation for Tom and full disclosure of thefacts—the most basic rudiments of due process.”
Not Court-Appointed
Thelawyers—who purport to represent Tedesco’s interests—were not appointed by thecourt.
Therespondent’s brief declares:
“Asto the Sanctions Order, Wear and Non-Appointed Counsel had been previouslydeemed to be abusers and/or undue influencers of the Conservatee. They continueto relentlessly pursue their own agenda to the Conservatee’s detriment. Herethey baldly sought to obtain the Conservatee’s financial information. The trialcourt’s imposition of sanctions on Wear and Non-Appointed Counsel for misuse ofdiscovery was well within its discretion and its order should be affirmed.”
Goethals’s Opinion
Agreeingwith Belz’s order, Justice Thomas M. Goethals said in yesterday’s opinion:
“Abulldozer can move piles of dirt from one place to another. But when the goalis to move minds rather than dirt, employing a bulldozer may becounterproductive. The bulldozer in this case is appellant Debra Wear’scounsel. In our prior nonpublished opinion.”
Hequoted from his June 15 non-published opinion in which he said:
“Wedo not confuse aggressive argument with persuasive advocacy.”
Goethalssaid in yesterday’s opinion:
“Althoughthe aggression has not abated, our view of it remains unchanged.”
Henoted that Herzog and Marshall did not appeal from the order imposing thesanction on them, remarking:
“Instead,counsel attempt to use that sanctions order as a basis for challenging themerits of the trial court’s nonappealable order quashing Wear’s document subpoena,and then to further use the trial court’s analysis underlying that discovery rulinginto a basis for reviewing a separate order we have already ruled cannot be appealed.All of this seems to be in furtherance of counsel’s broader quest: to again collaterallyattack the validity of a conservatorship over the estate of Thomas S. Tedesco. whichwas established in the probate court in Riverside County’ in 2015. In keepingwith that sweeping goal. Wear’s counsel has presented us with an appellant’sappendix in excess of 9,000 pages.”
Two Counties
Thelitigation has taken place both in Orange and Riverside counties. Actions ofthe court in Riverside have been upheld by the Fourth District’s Div. Two.
Inits brief in the appeal before Div. Three, Wear referred to “Division Two’smisrepresentation of the record on appeal and violation of its own ordersacknowledging Tedesco’s right to hearing, and the denial of any counselwhatever for over two years” and asserted that “Division Two made every effortto violate [Tedesco’s] rights.” She added that “Division Two has an appallinghistory of due process violations and suppression of evidence” and“misrepresented the record.”
Goethalsobserved in a footnote that “counsel once again explicitly disparages theintegrity of our colleagues in the Fourth District, Division 2,” admonishing:
“Wecaution counsel about such tactics.”
Dogged Refusal
Hepointed to the lawyers’ “dogged refusal to acknowledge” their losses in twocounties and on appeal except to respond by “disparaging some of the courtsinvolved).
“[T]hecourt’s award of sanctions was based on findings that the subpoena wasoppressive and a misuse of discovery,” he wrote.
“Wear’sopening brief fails to rebut either charge; indeed, it confirms the latterone.”
Goethalselaborated:
“…Weareffectively admits that her goal in propounding the subpoena—however flawed herjustification—was to obtain and examine all of Tedesco’s financial records, forthe specific purpose of conducting an expeditionary search for unidentifiedfinancial misconduct. That is a misuse of the discovery process; by itself itjustifies the award of monetary sanctions.”
Thecase is Tedesco v. White, G061197, 2023 S.O.S.3971.
Copyright 2023, Metropolitan News Company
