Court of Appeal:
Sanction Imposed on Herzog, Others Was Fully Justified
Decision Comes in Much-Litigated Dispute Over Control of $40 Million Trust
By a MetNews Staff Writer
Ian “Buddy” Herzog, a one-time luminary in the plaintiffs’ bar, yesterday continued on a losing streak in the Court of Appeal, with a $6,000 sanction imposed on him, two associates and a client being affirmed by the Fourth District’s Div. Three in the latest development in litigation over the assets of nonagenarian Thomas S. Tedesco, a conservatee.
The sanction was imposed by Orange Superior Court Judge David Belz on Herzog—the 1983 president of what was then the Los Angeles Trial Lawyers Association and 1991 president of what was known as the California Trial Lawyers Association—and on Evan D. Marshall, both of Herzog, Yuhas, Ehrlich & Ardell, APC, on attorney Russell L. Davis, and on client Debra Wear. Wear is among those seeking Tedesco’s assets; she is the daughter of Tedesco’s second wife, Gloria Tedesco.
The mother and daughter (by a previous marriage) are pitted against Tedesco’s own daughter—who, Wear asserts in her reply brief, “exploited Tedesco’s 2013 incapacity to gain control of the trust…, committed forgery…, misappropriated assets and deceived Tom as to changes to his trust…while it is Wear who sought independent representation for Tom and full disclosure of the facts—the most basic rudiments of due process.”
The lawyers—who purport to represent Tedesco’s interests—were not appointed by the court.
The respondent’s brief declares:
“As to the Sanctions Order, Wear and Non-Appointed Counsel had been previously deemed to be abusers and/or undue influencers of the Conservatee. They continue to relentlessly pursue their own agenda to the Conservatee’s detriment. Here they baldly sought to obtain the Conservatee’s financial information. The trial court’s imposition of sanctions on Wear and Non-Appointed Counsel for misuse of discovery was well within its discretion and its order should be affirmed.”
Agreeing with Belz’s order, Justice Thomas M. Goethals said in yesterday’s opinion:
“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.”
He quoted from his June 15 non-published opinion in which he said:
“We do not confuse aggressive argument with persuasive advocacy.”
Goethals said in yesterday’s opinion:
“Although the aggression has not abated, our view of it remains unchanged.”
He noted that Herzog and Marshall did not appeal from the order imposing the sanction on them, remarking:
“Instead, counsel attempt to use that sanctions order as a basis for challenging the merits 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 ruling into 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 collaterally attack the validity of a conservatorship over the estate of Thomas S. Tedesco. which was established in the probate court in Riverside County’ in 2015. In keeping with that sweeping goal. Wear’s counsel has presented us with an appellant’s appendix in excess of 9,000 pages.”
The litigation has taken place both in Orange and Riverside counties. Actions of the court in Riverside have been upheld by the Fourth District’s Div. Two.
In its brief in the appeal before Div. Three, Wear referred to “Division Two’s misrepresentation of the record on appeal and violation of its own orders acknowledging Tedesco’s right to hearing, and the denial of any counsel whatever for over two years” and asserted that “Division Two made every effort to violate [Tedesco’s] rights.” She added that “Division Two has an appalling history of due process violations and suppression of evidence” and “misrepresented the record.”
Goethals observed in a footnote that “counsel once again explicitly disparages the integrity of our colleagues in the Fourth District, Division 2,” admonishing:
“We caution counsel about such tactics.”
He pointed to the lawyers’ “dogged refusal to acknowledge” their losses in two counties and on appeal except to respond by “disparaging some of the courts involved).
“[T]he court’s award of sanctions was based on findings that the subpoena was oppressive and a misuse of discovery,” he wrote.
“Wear’s opening brief fails to rebut either charge; indeed, it confirms the latter one.”
“…Wear effectively admits that her goal in propounding the subpoena—however flawed her justification—was to obtain and examine all of Tedesco’s financial records, for the specific purpose of conducting an expeditionary search for unidentified financial misconduct. That is a misuse of the discovery process; by itself it justifies the award of monetary sanctions.”
The case is Tedesco v. White, G061197, 2023 S.O.S. 3971.
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