THE ESTATE OF STEPHEN FORTNEY

Petitioner Linda Roach (“Petitioner”) initiated this action by filing a petition for probate of the estate of her half-brother, Stephen Fortney (“Decedent”). The petition asserted that Decedent passed away intestate and that Petitioner was Decedent’s sole heir. The court appointed Petitioner personal representative of Decedent’s estate. Thereafter, W. C. Cox & Co. (“Cox”), an heir finding service, filed a petition to determine inheritance rights, asserting that another heir, Deborah Ann Edwards, previously known as Deborah Ann Fortney (“Deborah”),1 a half-sister of Decedent, had been located and had partially assigned her rights to Cox. At the time the petition was filed, Deborah had passed away, leaving a trust that left her entire estate to her daughter, Deana Edwards (“Deana”).

Currently before the court is Petitioner’s motion to compel further responses from Cox to two of her requests for admission. Cox has opposed the motion and Petitioner has filed a reply.

DISCUSSION I. Legal Background Code of Civil Procedure section 2033.2202 provides, “(a) Each answer in a response to requests for admission shall be as complete and straightforward as the information reasonably available to the responding party permits. [¶] (b) Each answer shall: [¶] (1) Admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. [¶] (2) Deny so much of the matter involved in the request as is untrue. [¶] (3) Specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. [¶] (c) If a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”

Section 2033.290, subdivision (a) provides, “On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply: [¶] (1) An answer to a particular request is evasive or incomplete. [¶] (2) An objection to a particular request is without merit or too general.”

1 Because some individuals involved in this case share the same last name, the court will refer to them by their first names. No disrespect is intended. 2 Further undesignated statutory references are to the Code of Civil Procedure.

II. Merits of the Motion

Petitioner moves to compel further responses to her requests for admission 9 and 10. Request 9 states, “Admit that DEBORAH ANN EDWARDS is not a DNA relative of DECEDENT STEPHEN RAY FORTNEY.” Request 10 states, “Admit that DEANA EDWARDS is not a DNA relative of DECEDENT STEPHEN RAY FORTNEY.” Cox responded to both requests with only objections.

Petitioner is represented by counsel in her capacity as administrator as well as in her individual capacity, as an heir. Petitioner’s counsel in her individual capacity served Cox with her requests for admission, set one, on December 30, 2025. On February 5, 2026, Cox served responses on Petitioner’s administration counsel rather than her individual counsel. After an extension of time, Cox’s responses were due February 12, 2026. Cox did not serve responses on Petitioner’s individual counsel until March 23, 2026.

Petitioner contends that because Cox failed to timely serve the responses on propounding counsel, all objections are waived. Generally, when a party has failed to timely provide initial responses to the discovery requests at issue, she has waived any objection to them. (§ 2033.280, subd. (a) [A party who fails to serve timely responses to a request for admissions waives any objections to the requests, including those based on privilege or the work product doctrine.]; see also Scottsdale Ins. Co. v.

Super. Ct. (1997) 59 Cal.App.4th 263, 273 [waiver occurs where the responding party fails to timely raise an objection in its initial response]; Catalina Island Yacht Club v. Superior Court (2015) 242 Cal.App.4th 1116, 1125.) There are procedures to be followed to seek relief from the waiver including serving the responses and making a noticed motion for relief, (see § 2033.280, subd. (a)), but they have not been followed in this case. Accordingly, Cox has waived all objections.

Even assuming Cox’s objections had not been waived, the court would overrule them. Cox asserts that the requests call for information protected from disclosure by Evidence Code sections 1152 and 1154. It alleges that, as part of settlement negotiations, the parties agreed that Deana would undergo DNA testing through ancestry.com. Petitioner’s counsel represented that Decedent had previously submitted DNA to ancestry.com and, after Deana’s DNA was submitted, Cox’s counsel informed Petitioner’s counsel that ancestry.com concluded the DNA samples did not match.

Evidence Code section 1152 provides, “Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.” (Evid. Code, § 1152, subd. (a).)

Evidence Code section 1154 provides, “Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it.” (Evid. Code, § 1154.) This argument is not well taken because, as explained in Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1491, admissibility is not the test for discoverability and evidence of an offer to compromise may still be admissible under Evidence Code sections 1152 and 1154 on an issue other than liability.

For the same reason, Cox’s other arguments based on the admissibility of the DNA evidence under the Evidence Code also fail.3

Cox also argues that the DNA test results are irrelevant because a divorce decree established that Deborah was the child of Loren Fortney, Decedent’s father, the DNA testing did not occur during Decedent’s lifetime, and it is Deborah, not Deana, who is entitled to a portion of Decedent’s estate. Taking the latter argument first, it is clear that Cox’s theory is that Deborah is the half sister of Decedent and that Deborah post-deceased Decedent such that she was entitled to a share of Decedent’s estate.

Deana is entitled to that share, not in her own right as a relative of Decedent, but because she is the sole beneficiary of Deborah’s trust. Nonetheless, the court does not find the issue of whether Deana is related to Decedent by DNA to be irrelevant because, as Deborah’s daughter, Deana is likely to share DNA with Deborah and the results of the comparison between Deana’s DNA and Decedent’s DNA has some potential tendency in reason to establish a DNA relationship between Decedent and Deborah.4

As to the arguments that a divorce decree indicates that Deborah was the daughter of Decedent’s father and that the DNA test did not occur during Decedent’s lifetime, these contentions are based on Probate Code section 6453. That section provides, in pertinent part, For the purpose of determining whether a person is a “natural parent” as that term is used in this chapter: (a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code). (b) A natural parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be established by an action under subdivision (c) of Section 7630 of the Family Code unless any of the following conditions exist: (1) A court order was entered during the parent’s lifetime declaring parentage. (2) Parentage is established by clear and convincing evidence that the parent has openly held out the child as that parent’s own. (3) It was impossible for the parent to hold out the child as that parent’s own and parentage is established by clear and convincing evidence, which may include genetic DNA evidence acquired during the parent’s lifetime. (Prob.

Code, § 6453, subds. (a)&(b).) Probate Code section 6453 “ ‘provides the exclusive means’ ” for establishing paternity in intestacy proceedings. (Estate of Britel (2015) 236 Cal.App.4th 127, 136, fn. 4.)

3 The court also notes that the discovery requests at issue do not actually seek evidence of the DNA test, they merely ask Cox to admit that Deana and Deborah are not related to Decedent by DNA. Notably, Petitioner has not moved to compel a further response to form interrogatory 17.1, which would require Cox to provide facts in support of its denial of the facts stated in requests for admission 9 and 10 should it deny them. 4 The court notes the possibility that Deana and Deborah are not related by DNA but this speaks to the weight of the evidence, not its discoverability.

Cox contends that because a divorce decree establishes that Deborah was Loren Fortney’s daughter, DNA evidence is inadmissible to establish a contrary conclusion. The authorities Cox relies on do not support the position that DNA evidence is inadmissible and, as discussed above, admissibility is not the test of discoverability. (See § 2017.010 [“ . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action.”].)

Cox contends that the Court of Appeal held in Estate of Sanders (1992) 2 Cal.App.4th 462 (Sanders) that DNA evidence was inadmissible in heirship proceedings. In Sanders, the Court of Appeal upheld the trial court’s order denying requests for DNA testing on the grounds that no statute provided for same under the circumstances of the case before it and that the right to privacy counselled against compelled DNA testing. (See id. at pp. 468-469.) The Sanders court stated that under former Probate Code section 6408, a natural parent child relationship could only be established as stated in that section, which did not include establishing such a relationship via DNA testing. (Id. at p. 470.)

But, Probate Code section 6408 was repealed in 1993 and Probate Code section 6453 now allows a party to establish parentage pursuant to “other provisions the Uniform Parentage Act” when certain conditions are met, including where “[i]t was impossible for the parent to hold out the child as that parent’s own and parentage is established by clear and convincing evidence, which may include genetic DNA evidence acquired during the parent’s lifetime.” (Prob. Code, § 6453, subd. (b)(3).)

Cox argues that the DNA testing did not occur during the parent’s lifetime as Deana submitted her DNA sample after Decedent passed away.5 (See Prob. Code, § 6453, subd. (b)(3) [parentage may be proven under other provisions of the Uniform Parentage Act here “[i]t was impossible for the parent to hold out the child as that parent’s own and parentage is established by clear and convincing evidence, which may include genetic DNA evidence acquired during the parent’s lifetime.”], italics added.) Cox cites no authority indicating that this language renders DNA tests occurring after the parent’s death inadmissible.

The court does not read the statutory language as only permitting DNA evidence acquired during the parent’s lifetime to overcome the bar on proving parentage via other provisions of the Uniform Parentage Act. Instead, it appears that DNA evidence acquired during the parent’s lifetime is one possible way a person might prove parentage by clear and convincing evidence where it was impossible for the parent to hold out the child as his own.

Cox also contends that Petitioner is precluded from litigating whether Deborah was the daughter of Loren Fortney because an Arkansas court found that Deborah was Loren Fortney’s daughter and ordered him to pay child support during marital dissolution proceedings. Cox relies on Estate of Griswold (2001) 25 Cal. 4th 904, 924 (Griswold). In Griswold, the California Supreme Court determined that an Ohio bastardy judgment entered after proceedings wherein the father had admitted to paternity “was a court order ‘entered during the father’s lifetime declaring paternity’ ([Prob.

Code,] § 6453, subd. (b)(1))” that established the father as the natural parent of an heir for the purposes of intestate succession. (Ibid.; see also 5 Here, the person alleged to be a parent is Loren Fortney, not Decedent, but Cox provided Loren Fortney’s death certificate, indicating that he passed away in 1978, as Exhibit 5 to its heirship petition.

Weir v. Ferreira (1997) 59 Cal.App.4th 1509, 1522 [dissolution judgment wherein paternity was adjudicated binding on child of decedent].) While it is possible that the marital dissolution judgment will be binding on Petitioner, Cox cites no authority indicating that a litigant may not seek discovery regarding issues that might be the subject of issue preclusion. Notably, Petitioner makes several arguments in her objection to Cox’s petition to determine heirship that, if successful, could result in the court’s declining to find the Arkansas dissolution decree preclusive, including that there are discrepancies in the ages and dates of birth for Loren Fortney on the various documents Cox provided and that the Arkansas court did not actually determine the issue of parentage of Deborah. (See Objector Linda Roach’s Response and Objection to Petition to Determine Inheritance Rights, p. 2:4-10.)

Under these circumstances, the DNA relationship between Deborah and Decedent or Loren Fortney remains relevant.

The motion is GRANTED.

Petitioner also requests sanctions in the amount of $2,060, consisting of $2000 in attorney fees (four hours at $500 per hour) and a $60 filing fee. Section 2033.290, subdivision (d) provides, “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”

Here, Cox makes no argument that it acted with substantial justification or that the imposition of sanctions would be unjust. The court finds that time spent in working on the motion and counsel’s hourly rate reasonable. Accordingly, the court will GRANT Petitioner’s request for sanctions in the amount of $2,060. Cox is ordered to pay to Petitioner’s counsel $2,060 within 20 days of the court’s final order on this motion.

Cox also requests sanctions in an amount to be determined according to proof. But, because the motion is granted, the court denies that request.

CONCLUSION

The motion is GRANTED. Cox is ordered to provide code-compliant, objection-free responses to Petitioner’s requests for admission 9 and 10 within 20 days of the date of the final order on this matter. Petitioner’s request for sanctions is GRANTED. Cox is ordered to pay to Petitioner’s counsel $2,060 within 20 days of the court’s final order on this motion. Cox’s request for sanctions is DENIED.