What do appellate justices call a 9,000 page appendix to the 21st appeal in a series of cases related to a $40 million estate?
An unpersuasive bulldozer.
That’s how Fourth District Court of Appeal, Division Three, Justice Thomas Goethals began his appellate ruling published Oct. 27:
“A bulldozer can move piles of dirt from one place to another. But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is appellant Debra Wear’s counsel. In our prior nonpublished opinion, Tedesco v. White (June 15, 2022, G059883) (Tedesco 1), we made clear to these lawyers that “(w)e do not confuse aggressive argument with persuasive advocacy.” Although the aggression has not abated, our view of it remains unchanged.”
The ruling also cautioned the attorneys against disparaging appellate justices in the Fourth District, Division 2, as the ruling said they had done in their opening appellate brief.
The appeal came from a long-litigated case regarding the $40 million estate of octogenarian Thomas Tedesco, who lives in Riverside County. He had established a trust in 2002 that named his daughters as his inheritors, and amended it in 2013 to prevent him from changing it without his daughters’ agreement. He also established a conservatorship in 2015 that placed attorney David Wilson in charge. In 2020, Tedesco unilaterally, and without his daughter’s agreements, moved to leave 75% of his assets to his present wife and her daughters, including Debra Wear. The 2020 amendment has not been found valid in court.
Complicating the case is an elder abuse restraining order placed against Wear.
This appeal challenged $6,000 in discovery sanctions laid against Wear for an Orange County case. Wear’s attorneys had served Parker Mills, LLP, with a notice of deposition for legal documents related to Tedesco’s estate. Wilson, Tedeco’s conservator, had worked at Parker Mills.
The attorneys asked for every record that in any way refers to communication concerning Tedesco or his estate. They also asked for any record that refers to communication with Tedesco’s daughters or their attorneys and all partnership agreements for Tedesco’s business, among other requests.
Wilson argued Wear’s request violated the elder abuse restraining order against her, that she lacked standing to seek relief for the trust, that Wear failed to serve Tedesco as required by state law and that the subpoena was overly broad and improper.
Wear argued that the requested information was relevant to Wilson’s knowledge of fraud and the practice of perjury. She had argued that Tedesco’s daughters had seized control of Tedesco’s estate through fraud.
Orange Superior Judge David Belz agreed with Wilson and quashed the motion. He also awarded $6,000 in sanctions against Wear, on the grounds that the subpoena was a misuse of discovery.
Wear appealed both the motion to quash and a later order denying a request from Tedesco to transfer funds from his trust to pay for Wear’s legal costs. The Court of Appeal found that Wear had no standing to appeal from the trust payment, and that she could only appeal from the sanctions, not from the actual order to quash.
The appellate ruling said that Wear’s opening brief ignored their ruling. The brief challenged the merits of the order quashing the subpoena, and did not mention the word “sanctions” until page 30. The brief also argued that Wilson is not Tedesco’s legitimate conservator, an argument the appellate ruling said is not subject to further dispute.
The ruling ended by saying that Wear’s brief admitted that her goal was to examine Tedesco’s financial records to identify misconduct.
“That is a misuse of the discovery process, by itself it justifies the award of monetary sanctions,” the ruling said.
Ian Herzog and Evan Marshall of Herzog, Yuhas, Ehrlich & Ardell represented Tedesco and Wear.
Adam Streisand, Nicholas Van Brunt and Valerie Alter of Sheppard, Mullin, Richter & Hampton represented Tedesco’s daughters.
Orange Superior Court Case No. 30-2019-01078628
Appellate Case No. G061197Read the appellate ruling here.
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