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This case was last updated from Los Angeles County Superior Courts on 06/18/2019 at 23:13:11 (UTC).

MARY E EVANS VS MARK A MILLER ET AL

Case Summary

On 03/10/2017 MARY E EVANS filed a Contract - Professional Negligence lawsuit against MARK A MILLER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are DAVID SOTELO, DEBRE K. WEINTRAUB and DEBRE KATZ WEINTRAUB. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3763

  • Filing Date:

    03/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Professional Negligence

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

DAVID SOTELO

DEBRE K. WEINTRAUB

DEBRE KATZ WEINTRAUB

 

Party Details

Plaintiff and Petitioner

EVANS MARY E.

Defendants and Respondents

MILLER MARK A.

DOES 1 TO 20

PETTLER & MILLER LLP

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

KERENDIAN SHAWN S. ESQ.

Defendant and Respondent Attorneys

ROBIE & MATTHAI A PROFESSIONAL CORP

MATTHAI EDITH RAE

 

Court Documents

Unknown

10/30/2018: Unknown

Minute Order

11/1/2018: Minute Order

Notice of Change of Address or Other Contact Information

1/3/2019: Notice of Change of Address or Other Contact Information

Status Report

6/12/2019: Status Report

NOTICE OF RULING ON DEFENDANTS MARK A MILLER AND PETTLER & MILLER LLP'S MOTION FOR SUMMARY JUDGMENT

2/7/2018: NOTICE OF RULING ON DEFENDANTS MARK A MILLER AND PETTLER & MILLER LLP'S MOTION FOR SUMMARY JUDGMENT

ORDER GRANTING STIPULATED EX PARTE APPLICATION FOR AN ORDER STAYING ALL PROCEEDINGS AND VACATING TRIAL DATES

3/28/2018: ORDER GRANTING STIPULATED EX PARTE APPLICATION FOR AN ORDER STAYING ALL PROCEEDINGS AND VACATING TRIAL DATES

DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S RESPONSIVE SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY

1/18/2018: DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S RESPONSIVE SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE FOR SUMMARY

DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; DECLARATION OF LEIGH P. ROBIE

1/18/2018: DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; DECLARATION OF LEIGH P. ROBIE

DECLARATION OF SANDRA MARTINEZ IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

1/8/2018: DECLARATION OF SANDRA MARTINEZ IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DECLARATION OF MARY E. EVANS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

1/8/2018: DECLARATION OF MARY E. EVANS IN SUPPORT OF OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, ADJUDICATION OF ISSUES

11/9/2017: DEFENDANTS MARK A. MILLER AND PETTLER & MILLER LLP'S SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, ADJUDICATION OF ISSUES

COMPLAINT FOR: (1) PROFESSIONAL NEGLIGENCE; AND (2) BREACH OF FIDUCIARY DUTIES

3/10/2017: COMPLAINT FOR: (1) PROFESSIONAL NEGLIGENCE; AND (2) BREACH OF FIDUCIARY DUTIES

SUMMONS

3/10/2017: SUMMONS

Unknown

3/16/2017: Unknown

PROOF OF SERVICE OF SUMMONS

3/24/2017: PROOF OF SERVICE OF SUMMONS

Unknown

4/17/2017: Unknown

DEFENDANTS' ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

5/12/2017: DEFENDANTS' ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT

Unknown

5/23/2017: Unknown

31 More Documents Available

 

Docket Entries

  • 06/13/2019
  • at 08:30 AM in Department 40; Status Conference - Held - Continued

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  • 06/13/2019
  • Minute Order ( (Status Conference)); Filed by Clerk

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  • 06/12/2019
  • Status Report; Filed by Mark A. Miller (Defendant); Pettler & Miller LLP (Defendant)

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  • 04/03/2019
  • at 08:30 AM in Department 40; Status Conference - Not Held - Continued - Court's Motion

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  • 04/02/2019
  • Status Report; Filed by Mark A. Miller (Defendant); Pettler & Miller LLP (Defendant)

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  • 02/25/2019
  • at 09:30 AM in Department 40; Jury Trial - Not Held - Vacated by Court

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  • 02/14/2019
  • at 08:30 AM in Department 40; Final Status Conference - Not Held - Vacated by Court

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  • 01/03/2019
  • Notice of Change of Address or Other Contact Information; Filed by Mark A. Miller (Defendant)

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  • 12/21/2018
  • Notice (of Unavailability of Counsel); Filed by Mary E. Evans (Plaintiff)

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  • 11/08/2018
  • Notice (Of Entry of Minute Order); Filed by Mary E. Evans (Plaintiff)

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76 More Docket Entries
  • 03/24/2017
  • PROOF OF SERVICE OF SUMMONS

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  • 03/24/2017
  • Proof of Service (not Summons and Complaint); Filed by Mary E. Evans (Plaintiff)

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  • 03/24/2017
  • Proof of Service (not Summons and Complaint); Filed by Mary E. Evans (Plaintiff)

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  • 03/16/2017
  • NOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/16/2017
  • Notice of Case Management Conference; Filed by Clerk

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  • 03/16/2017
  • OSC-Failure to File Proof of Serv; Filed by Clerk

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  • 03/16/2017
  • ORDER TO SHOW CAUSE HEARING

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  • 03/10/2017
  • Complaint; Filed by Mary E. Evans (Plaintiff)

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  • 03/10/2017
  • COMPLAINT FOR: (1) PROFESSIONAL NEGLIGENCE; AND (2) BREACH OF FIDUCIARY DUTIES

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  • 03/10/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC653763    Hearing Date: November 02, 2020    Dept: 40

MOVING PARTY: Plaintiff Mary E. Evans, individually and as trustee of The Evans Family Trust, dated May 14, 1990, as amended

OPPOSITION: Defendants Mark Miller and Pettler & Miller, LLP

On March 10, 2017, Plaintiff Mary Evans (“Plaintiff”), as an individual and as trustee of The Evans Family Trust, filed a complaint against Defendants Mark Miller and Pettler & Miller, LLP (collectively, “Defendants”) alleging claims of professional negligence and breach of fiduciary duties. Plaintiffs allege Defendants failed to ensure that Kenneth Evans’ (“Decedent”) fourth and fifth amendments to his estate planning documents were valid, which resulted in litigation upon his death.

Plaintiff’s Request for Inspection seeks for Defendant Mark Miller (“Defendant”) to make various computers used by him available for inspection by Brad Maryman (“Maryman”), a forensic expert. Maryman will forensically image the computers’ entire hard drives. Plaintiff also requests that Defendant and his counsel be sanctioned in the sum of $3,260.

Objections: Defendant’s 12 objections to the declaration of Timothy D. McGonigle, Plaintiff’s counsel, are OVERRULED.

Standard: On receipt of a response to an inspection demand, the demanding party may move for an order compelling further responses to the demand if the demanding party deems that any of the following apply: (1) a statement of compliance with the demand is incomplete; (2) a representation of inability to comply is inadequate, incomplete, or evasive; or (3) an objection in the response is without merit or too general. (Code of Civil Procedure, § 2031.310(a).)

Analysis: The dispute between the parties involves three letters provided by Defendant.

On June 2, 2015, Defendant met with Decedent and Plaintiff to discuss making various changes to his trust via a fifth amendment. Defendant allegedly promised to prepare a fifth amendment, but failed to do so. Decedent drafted his own fifth amendment in the form of a letter dated November 11, 2015, then died four months later (March 12, 2016).

The September 15, 2015 letter requests an in-person meeting with Decedent to discuss amending his estate planning documents.

The April 21, 2016 letter indicates that Defendant had received Decedent’s November 11, 2015 letter.

The May 26, 2016 letter is a follow up to the April 21 letter.

Plaintiff argues that the disputed letters were not actually created on the stated dates and instead alleges that Defendant backdated them to limit his liability in this matter.

Plaintiff requests to image Defendant’s computers in regard to any electronically stored information (“ESI”) about the disputed letters and Requests Inspection and Production of Tangible Things:

REQUEST NO. 1: YOUR personal computer.

REQUEST NO. 2: Any computer used by YOU at P & M concerning the estate planning matters for Frances Evans.

REQUEST NO. 3: Any computer used by YOU at P & M concerning the estate planning matters for Kenneth Evans.

REQUEST NO. 4: Any computer YOU used to draft the alleged September 17, 2015 letter to Kenneth Evans

REQUEST NO. 5: Any computer YOU used in connection with estate planning matters for Kenneth Evans.

REQUEST NO. 6: Any computer YOU used in connection with estate planning matters for Frances Evans.

Defendant argues that he no longer has the desktop computer he used to work on Decedent’s matter because it was replaced in May 2018. (Decl. Ma, ¶ 3.) Defendant argues that the Inspection request is duplicative of an earlier Document request. Defendant argues that the letters are irrelevant to the main issues of the matter: “(1) [w]hether Kenneth Evans gave Miller clear instructions regarding his testamentary intent such that Miller could draft additional estate planning documents; (2) whether Kenneth believed that Miller was drafting additional testamentary documents; and (3) whether Miller owed a duty to Mary Evans individually.” (Opp’n, 4:3-6.) Defendant argues that the forensic examination of the computers’ hard drives will reveal information about other clients and their defense in this matter that is protected by the attorney client privilege.

Plaintiff argues that the letters are relevant because they are direct evidence of Defendant’s malpractice in failing to follow through on the promises made to Decedent about the Fourth and Fifth Amendments. Plaintiff argues that Defendant’s new desktop must be connected to the firm network and saved to a portal: Defendant has admitted that his old desktop and home computer did so.

Plaintiff states that to protect the attorney client privilege Maryman proposes the following protocols: (1) Defendant may have his own forensic expert present during the inspection to assure that no content from other legal matters or which is marked privileged or private is accessed; (2) that the search of the drive’s forensic image could be conducted using mutually agreed upon search terms that are selected to avoid content from other privileged matters being returned as a search result or inadvertently revealed; and (3) at the conclusion of the forensic inspection, a copy of the search results will be copied to a USB flash drive and provided to Defendant’s counsel for a privilege review. (Decl. Maryman, ¶¶ 12-14.)

The Court finds there is good cause to permit the forensic imaging of Defendant’s computers because the letters are potentially relevant evidence of malpractice if they were indeed backdated. It is reasonable to verify whether the letters were backdated because Defendant’s conduct in drafting three letters and not saving any of them on a computer/network is an unusual document retention practice. It is also unclear why Defendant did not disclose that the relevant computer had been replaced in their initial July 2020 meet and confer efforts and instead waited a month to reveal that fact. (Decl. McGonigle, ¶ 28.)

The Court accepts the representation that Defendant’s old desktop was wiped of data and is no longer in his possession (Decl. Ma, ¶¶ 4, 5), but the Court is persuaded by Plaintiff’s argument that information might have been saved on the firm’s network which the new desktop would undoubtedly be connected to. Finally, the Court finds that Maryman’s proposed protocols sufficiently safeguards the attorney-client privilege.

Sanctions: Plaintiff requests that Defendant and his counsel be sanctioned in the sum of $3,260. Plaintiff’s counsel has spent and anticipates spending 8 hours on the matter, their hourly rate is $400, and incurred a $60 filing fee. The Court will not order fees at this time, but will take the request under submission pending compliance with this order.

Conclusion: Plaintiff’s Motion to Compel Defendant’s Responses to Request for Inspection and Production of Tangible Things is GRANTED.

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