In re the Estate of Anne Sorden

1 elder abuse against him. The complaint alleges that Petitioner aided and abetted in this 2 misconduct. It further alleges that Petitioner converted Respondent’s property, which was stored 3 in a home that Petitioner took possession of as trustee of the Anne M. Sorden Living Trust. 4 On July 9, 2024, the court (Hon. Evette Pennypacker) issued an order consolidating 5 dockets 22PR193370 and 23CV428384 only. Respondent moved to consolidate dockets 6 22PR192746, 22PR193370, and 23PR194757. The initial hearing was held on November 21, 7 2025 and the court requested and received supplemental briefing thereafter.

Via untitled written 8 order signed and filed January 21, 2026, the court (Hon. Lê Jacqueline Dương) ordered the 9 dockets consolidated for all purposes. Docket 22PR192746 was designated the lead case. The 10 clerk of the court served the order on the parties via mail on January 22, 2026. On January 30, 11 2026, Respondent filed and served a notice of entry order electronically. 12 On October 20, 2025, the court filed its order granting Petitioner’s motion for summary 13 judgment in docket 22PR193370, finding that the Sorden Family 2018 Revocable Trust was 14 validly revoked by Decedent.

The court made no orders regarding docket 23CV428384 because 15 Petitioner’s motion did not address the pleadings in that docket. On December 19, 2025, 16 Respondent filed a notice of appeal in docket 22PR193370 challenging the grant of summary 17 judgment as to a Probate Code section 850 petition filed in that docket. No judgment was entered 18 following the entry of that order. 19 On June 6, 2025 the court (Hon. Lê Jacqueline Dương) issued an order granting in part 20 and denying in part Respondent’s motion to quash a subpoena served by Petitioner on 21 Decedent’s and Respondent’s estate planning attorney, Stephen N.

Yungling, Esq., of the law 22 firm Mullen & Henzell. On October 16, 2025, the court (Hon. Lê Jacqueline Dương) signed an 23 order regarding Petitioner’s request that the court enforce its June 6, 2025 order. That order was 24 filed on October 17, 2025. 25 On February 4, 2026, the discovery referee issued a recommendation regarding a 26 subpoena served by Petitioner on M&H and motion to quash same filed by Respondent. 27 Respondent filed an objection on January 30, 2026 and Petitioner filed a response to that 28 objection.

The court will address the recommendation and objection below.

1 On February 13, 2026, Petitioner filed a motion for reconsideration of the order granting 2 consolidation of all cases. That motion is currently before the court. Concurrently, with that 3 motion, Petitioner filed a motion for relief of waiver because the motion for reconsideration was 4 filed after the 10-day deadline. Respondent opposed both motions and Petitioner has filed a 5 reply. 6 On March 11, 2026, Petitioner filed (1) a motion for monetary and issue or evidentiary 7 sanctions against Respondent and (2) a motion for monetary sanctions against Mullen & Henzell 8 LLP (“M&H”), that employed Steven N.

Yungling, Esq. who was the estate planning attorney 9 for Anne and James Sorden and drafted the 2018 Sorden Family Trust. Both motions are 10 opposed and Petitioner has filed replies. 11 On March 24, 2026, Petitioner filed a motion for a protective order. Respondent has 12 opposed the motion and Petitioner has filed a reply. 13 On April 30, 2026, the court (Hon. Charles Adams) issued an order formally appointing 14 Hon. Peter Kirwan (Ret.) as the discovery referee for all purposes and ordered that all currently 15 pending and future discovery disputes must be submitted to the referee save for Petitioner’s 16 motion for protective order and Petitioner’s two motions for sanctions identified above. 17 DISCUSSION 18 I.

Motion for Reconsideration of Order Granting Consolidation and Associated 19 Motion for Relief of Waiver 20 Petitioner sought reconsideration of the court’s order granting consolidation because, 21 after the motion for consolidation was submitted but before the court issued its final order, 22 Respondent filed a notice of appeal in docket 22PR193370 challenging the grant of Petitioner’s 23 motion for summary judgment in that case. Petitioner contends that the appeal of the order 24 granting summary judgment in docket 22PR193370 triggers an automatic stay 1 and the trial in 25 1 Probate Code section 1310, subdivision (a) provides, “Except as provided in 26 subdivisions (b), (c), (d), and (e), an appeal pursuant to Chapter 1 (commencing with Section 27 1300) stays the operation and effect of the judgment or order.”

Similarly, Code of Civil Procedure section 916, subdivision (a) provides, “Except as provided in Sections 917.1 to 28 917.10, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or

1 docket 22PR192746 will be delayed while the appeal is ongoing. Recognizing that the motion 2 for reconsideration was filed more than 10 days from service of the notice of entry of the order 3 granting consolidation served by Respondent, Petitioner has filed a separate motion for relief 4 from the Code of Civil Procedure section 1008 deadline. (See Code Civ. Proc., § 1008, subd. 5 (a).) 2 6 On April 16, 2026, the court posted its tentative ruling indicating that there is no need for 7 de-consolidation of the cases because the case in docket 22PR192746 will not be stayed pending 8 the appeal in docket 22PR193370.

Integral to that determination was the fact that the Sixth 9 District Court of Appeal had issued an order to show cause why Respondent’s appeal should not 10 be dismissed as an appeal from a non-appealable order. (See H054004; Wilkin v. Community 11 Hospital of Monterey Peninsula (2021) 71 Cal.App.5th 806, 820 [An order granting summary 12 judgment is not an appealable order. [Citation.] An appeal must be taken from a judgment 13 entered based on an order granting summary judgment. [Citation.]”].)

The court noted that 14 dockets 22PR193370 and 23CV428384 had been consolidated but the motion for summary 15 judgment had only addressed the petition in docket 22PR193370. Thus, the court could not enter 16 judgment despite granting the summary judgment motion. (Villa Zinfandel, LLC v. Bearman 17 (2025) 116 Cal.App.5th 848, 862 [Where, as here, “two actions are consolidated ‘for all 18 purposes,’ ‘the two actions are merged into a single proceeding under one case number and result 19 in only one verdict or set of findings and one judgment.’ [Citation.]”].) 20 21 22 affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” 23 In Varian Medical Systems, Inc. v.

Delfino (2005) 35 Cal.4th 180, the California Supreme Court explained, when a notice of appeal is filed, “‘the trial court is divested of’ subject matter 24 jurisdiction over any matter embraced in or affected by the appeal during the pendency of that 25 appeal. [Citation.] ‘The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court ... .’ [Citation.] Thus, ‘that court is without power to proceed 26 further as to any matter embraced therein until the appeal is determined.’ [Citations.]” (Id. at pp. 27 196-197 [discussing stay in civil cases under Code of Civil Procedure section 916, et seq.]; Dowling v.

Zimmerman (2001) 85 Cal.App.4th 1400, 1427-1428 [same]; In re Marriage of 28 Varner (1998) 68 Cal.App.4th 932, 935 [same].) 2 All further undesignated statutory references are to the Code of Civil Procedure.

1 Petitioner pointed out that an order finally adjudicating a Probate Code section 850 2 petition is appealable. She relied on Estate of Redfield (2011) 193 Cal.App.4th 1526, 1534, in 3 which the Court of Appeal stated, “Orders of the probate court adjudicating the merits of a 4 section 850 claim and authorizing a compromise of a contest are appealable. ([Prob. Code,] § 5 1300; Estate of Green (1955) 138 Cal.App.2d 211, 214-215.) Although the probate court’s 6 jurisdiction under section 850 is not exclusive, a final judgment from the probate court is 7 conclusive against ‘ “the whole world” and not just the parties to the litigation.’ [Citation.]” (Fn. 8 omitted.)

Probate Code section 1300, subdivision (k) also provides, “In all proceedings governed 9 by this code, an appeal may be taken from the making of, or the refusal to make, any of the 10 following orders: . . . Adjudicating the merits of a claim made under Part 19 (commencing with 11 Section 850) of Division 2.” 12 While the Court of Appeal has seemingly treated the notice of appeal as one governed by 13 Code of Civil Procedure section 916, this court recognized that the decision of whether the order 14 granting summary judgment is appealable is determined by the Court of Appeal and not this 15 court.

Accordingly, the court continued the motions pending the outcome of the Court of 16 Appeal’s decision regarding whether to dismiss the appeal in docket H054004. Unfortunately, at 17 this time, the Court of Appeal has not yet determined whether to dismiss the appeal. Thus, the 18 court must against CONTINUE its ruling on the motion to dismiss and associated motion for 19 relief. 20 II. Motion for Protective Order 21 Petitioner moves for a protective order interpreting the court’s order, signed October 16, 22 2025 and filed October 17, 2025, granting Respondent’s ex parte application to continue trial as 23 only allowing discovery then pending at the time the order was made. 3 In that order, the court 24 continued the trial and extended the discovery cutoff and expert witness disclosure deadlines to 25 3 Petitioner also initially argued that discovery is stayed in docket 23CV428384 pending 26 the appeal in docket 22PR193370.

She seems to have abandoned that argument on reply but to 27 the extent it is necessary to address it, that argument is rejected for the reasons discussed above. Nonetheless, if the Court of Appeal does decide to allow Respondent’s appeal to proceed, the 28 court will need to revisit these issues.

1 correspond with the new trial date. Petitioner also argued in the motion that the discovery 2 referee’s role should be limited and that she did not agree to the referee or his appointment for all 3 purposes. 4 In his ex parte application to continue trial, Respondent represented that he still needed to 5 conduct approximately 14 depositions to be ready for trial. At the time, Petitioner had also been 6 unable to take Respondent’s deposition and M&H had not produced documents Petitioner 7 asserted were required to allow her to proceed to trial.

At the October 16, 2025 hearing on the ex 8 parte applications, Respondent suggested that the court should appoint a discovery referee and 9 Petitioner agreed. 4 The court’s order on the ex parte application to continue trial indicated that 10 the discovery referee would be in the best position to determine if any particular item of 11 discovery should be allowed. It made no order that discovery must be limited to those items then 12 pending before the court. Instead, it held that the discovery referee should be the one to 13 determine if any particular item should be allowed.

It did not, as Petitioner seems to contend, 14 require additional court orders to pursue any particular item of discovery. 5 Accordingly, to the 15 extent the motion seeks an order limiting discovery to those items pending on October 16, 2025, 16 that request is DENIED. 17 4 18 At the October 16, 2025 hearing, Petitioner’s counsel stated, “Turning to the issue of the discovery referee, we would be agreeable to a discovery referee appointment as to both cases and 19 all matters. We think that would be a much more efficient way to handle discovery in this case.

We’d be more than willing to nominate three names, have Mr. Sorden nominate three names, and 20 either try to come up with one or have the Court appoint one of those. I think that would be a 21 very effective way to move this case along. I think we’ve mentioned it before, but it hasn’t gone anywhere.” (See Carol E. Sordenstone’s Opposition to James Sorden’s Objection to Discovery 22 Referee’s Recommended Interim Order, Ex. 8 [transcript of October 16, 2025 hearing], pp. 23:23-24:5.) Further, when asked by the discovery referee about the scope of his appointment at 23 the January 20, 2026 hearing, Petitioner’s counsel agreed that the appointment was for all 24 purposes. (Id., Ex. 13 [transcript of January 20, 2026 hearing], p. 67:10-22.)

Thus, to the extent Petitioner argues that the court appointed the referee sua sponte with no notice, that argument is 25 without merit and to the extent Petitioner contends that the scope of the referee’s authority should be limited, that argument is rejected. Further, on April 30, 2026, the court (Hon. Charles 26 Adams) issued an order appointing a discovery referee pursuant to section 639 for all purposes. 27 5 In the court’s view such an order would be contrary to Petitioner’s expressed desire to avoid 28 additional costs.

If the parties had to litigate in court whether any particular item of discovery would be allowed, the costs could easily become astronomical.

1 Petitioner asks for an order that the motion to compel responses and documents at the 2 deposition of Yael Rakib was not pending before the court at the time the October 16, 2025 order 3 regarding Respondent’s ex parte application to continue trial was issued. That is correct. 4 Respondent did not file the motion until January 2026. However, the court did not limit the 5 discovery that could be pursued to that which was currently pending. In fact, the court expressly 6 indicated that the trial should be continued due to discovery issues, including the fact that 7 Respondent asserted that he needed to take the depositions of 14 additional persons.

Notably, the 8 court did not indicate that any particular item of discovery was allowed or disallowed. Instead, as 9 discussed above, it ordered that the discovery referee should address this issue. Thus, the 10 discovery referee may consider any arguments that any particular item of discovery is 11 unnecessary or irrelevant to the pleadings in the consolidated cases. 12 The April 30, 2026 order expressly stated that the instant motion and Petitioner’s motion 13 sanctions were to remain on calendar but all “currently pending and future discovery motions 14 and disputes relevant to discovery” must be submitted to the discovery referee.

Accordingly, the 15 hearing date for Respondent’s motion to compel further responses to requests for production of 16 documents and motion to compel further responses to special interrogatories, set two, both 17 scheduled for July 29, 2026, is hereby VACATED. Respondent must raise these issues with the 18 discovery referee in the first instance and follow the statutory procedure for objecting to the 19 discovery referee’s objection if necessary. 6 20 The motion for protective order is DENIED except to the extent the motion asks for an 21 order that the motion to compel responses and documents at the deposition of Yael Rakib was 22 not pending at the time the court made its October 16, 2025 order on Respondent’s motion to 23 continue trial. 24 Respondent request sanctions against Petitioner in the amount of $17,017.50 under 25 sections 2030.090, subdivision (d) and 2031.060, subdivision (h).

Although these sections apply 26 to protective orders in the context of interrogatories and requests for production, as Respondent 27 6 28 Respondent asserts that the motion relating to Yael Rakib has also been briefed before the discovery referee and the hearing on that matter is set to be heard by the referee on June 4, 2026.

1 points out, these are the authorities relied on by Petitioner in the instant motion. Both sections 2 provide for monetary sanctions “against any party, person, or attorney who unsuccessfully makes 3 or opposes a motion for a protective order . . ., unless it finds that the one subject to the sanction 4 acted with substantial justification or that other circumstances make the imposition of the 5 sanction unjust.” Although the court takes Respondent’s point that the motion was brought under 6 the wrong statutes and that Petitioner failed to meet and confer before bringing the motion, the 7 court also notes that Petitioner brought the instant motion seeking clarity regarding the court’s 8 October 16, 2025 order granting the ex parte application to continue trial.

The court previously 9 provided clarification regarding its discovery orders at Respondent’s request. The court finds that 10 Petitioner acted with substantial justification and declines to award sanctions in connection with 11 the motion for protective order. Both parties are ordered to meet and confer on all motions for 12 which meet and confer is statutorily required and encouraged to meet and confer even if not 13 required. 14 III. The Discovery Referee’s Recommendation 15 A. Legal Background 16 Where the reference is ordered pursuant to Code of Civil Procedure section 639, “the 17 decision of the referee or commissioner is only advisory.

The court may adopt the referee’s 18 recommendations, in whole or in part, after independently considering the referee’s findings and 19 any objections and responses thereto filed with the court.” (Code Civ. Proc., § 644, subd. (b).) 20 A hearing is not required before the court accepts or rejects the referee’s 21 recommendation. (Marathon Nat. Bank v. Superior Court (1993) 19 Cal.App.4th 1256, 1260.) 22 “[A] discovery referee’s report is advisory, not determinative, and that the trial court must 23 independently consider the referee’s findings before acting upon the referee’s recommendations. 24 One way to do this is to hold a hearing but a hearing is not required as a matter of law.

In an 25 exercise of its discretion, the trial court may consider the matter as the circumstances dictate. It 26 follows that where, as here, the trial court’s orders demonstrate a considered and careful review 27 not only of the referee's report but also of the transcript of the proceedings held before the 28 referee, and of the stacks of objections, responses, replies and other papers filed after the

1 referee’s report was submitted, we are able to say with confidence that the trial court did not 2 abdicate its judicial responsibilities.” (Id. at p. 1261.) 3 B. Merits 4 On February 4, 2026, the discovery referee issued a recommendation regarding the 5 subpoena Petitioner served on M&H. He recommended that items 1 through 11 on M&H’s 6 privilege log be produced and that M&H produce a more detailed privilege log so that the referee 7 could evaluate whether items were protected by any relevant privilege.

Respondent filed an 8 objection to the referee’s recommendation and Petitioner filed a response. Here, the court notes 9 that it has before it the recommendation, the transcript of the hearing before the reference, 10 Respondent’s objection, and Petitioner’s response to the objection, as well as declarations in 11 support of both the objection and the response. 12 Respondent asserts that the recommendation does not account for two points previously 13 briefed in court before the referee was appointed, namely: “(1) that the Production Order found 14 Carol Sordenstone to be Anne’s successor in interest only for the limited purposes of Evidence 15 Code section 962, which contains inherent ‘matter of common interest’ limitations; and (2) that 16 Judge Dương’s application of Evidence Code sections 960 and 961 was expressly restricted to 17 documents concerning ‘Decedent’s intent as to the transmutation clause in the 2018 Trust,’ 18 consistent with the holding in DP Pham LLC v.

Cheadle (2016) 246 Cal.App.4th 653 [(DP 19 Pham)].” (James L. Sorden’s Objection to Discovery Referee’s Recommended Interim Order 20 (“Objection to Recommendation”), p. 2:18-27.) 21 As to the first point, Respondent contends that Judge Dương’s June 6, 2025 Order 22 recognized that Petitioner is the successor in interest for Decedent in her capacity as trustee of 23 Decedent’s trust and that Evidence Code section 962 has “common interest limitations.” As 24 Respondent correctly points out, Judge Dương ordered that Petitioner was Decedent’s successor 25 in interest as the trustee of Decedent’s trust.

She also ordered that M&H was required to produce 26 all documents that Petitioner would be entitled to pursuant to Evidence Code section 962. 27 Evidence Code section 962 provides, “Where two or more clients have retained or 28 consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest

1 of any of them, may claim a privilege under this article as to a communication made in the 2 course of that relationship when such communication is offered in a civil proceeding between 3 one of such clients (or his successor in interest) and another of such clients (or his successor in 4 interest).” 5 In its October 16, 2025 Order, the court stated, “At the outset, the court clarifies its intent 6 as stated in the June 6, 2025 order. In their briefing regarding Respondent’s motion to quash the 7 subpoena directed to Mr.

Yungling, the parties addressed several different bases by which 8 Petitioner might be able to obtain the documents in Mr. Yungling’s file despite Respondent’s 9 attorney-client privilege objection, including Evidence Code sections 957, 960, and 962 and the 10 presence of a third party during the communications. The court found that the presence of a third 11 party did not destroy the privilege and that Evidence Code section 957 did not provide a basis for 12 Petitioner to receive any documents in the file.

Accordingly, the court granted the motion to 13 quash in part to the extent Petitioner may be entitled to documents in the file solely based on 14 those theories and denied it in part to the extent Petitioner may be entitled to documents in the 15 file based on Evidence Code sections 960 and 962. In other words, if Petitioner is entitled to 16 specific documents under Evidence Code section 960 or 962, they must be produced. If she 17 would only be entitled specific documents under Evidence Code section 957 or the theory that 18 the presence of a third party destroyed the privilege, those documents would not need to be 19 produced.

Finally, if the documents fell under the category of documents Respondent agreed to 20 produce, the court ordered those documents produced as well.” (October 16, 2025 Order, pp. 21 3:21-4:10.) 22 At the time the court issued its prior orders, it was not aware of whether M&H 23 represented Respondent separately or whether the entire representation was a joint representation 24 with Decedent and it did not (and still does not) know what was present in M&H’s file or files. 25 And, as mentioned above, the parties made several arguments regarding the potential bases under 26 which Petitioner might be entitled to the documents in the file.

The court determined that 27 Petitioner is entitled to any documents for which the joint representation exception to the 28 attorney-client privilege (Evid. Code, § 962) would apply but it held that, to the extent the sole

1 basis for Petitioner’s entitlement to documents in the file was Evidence Code section 957, 2 Petitioner was not entitled to those documents. At this time, as Petitioner points out, M&H has 3 informed the court that its representation of Respondent and Decedent was a joint representation. 4 (See Carol E. Sordenstone’s Opposition to James Sorden’s Objection to Discovery Referee’s 5 Recommended Interim Order (“Petitioner’s Opposition to Referee Objection”), Ex. 8 [transcript 6 of October 16, 2025 hearing], p. 29:8-16 [counsel for M&H confirming “that there is no separate 7 representation of James L.

Sorden. Mr. Yungling’s representation of James and Anne Sorden 8 was a joint representation. It primarily related to estate planning, but there were other issues that 9 came up in connection with the estate planning that he assisted with.”].) Thus, it is unclear how 10 any invoices could be unrelated to the joint representation. 11 Respondent also contends that the court limited the production of documents to specific 12 categories of documents. It did not. The court explained that “Respondent agreed to produce the 13 following categories of documents: “(1) Anne and James’ understanding and intentions 14 regarding the characterization of their property as community or separate; (2) The purpose, 15 negotiation, drafting, and understood effect of the transmutation clause in the 2018 Trust; and (3) 16 Communications between Anne, James, and Mr.

Yungling regarding the treatment of separate 17 versus community property in their estate plan.” (October 16, 2025 Order, p. 4:12-17.) It did not 18 limit production of documents to those Respondent already agreed to produce. Instead, it held 19 that Petitioner was entitled to the documents Respondent agreed to produce (i.e., those falling 20 within the above three categories), as well as those to which she would be entitled under 21 Evidence Code section 962 and those to which she would be entitled under Evidence Code 22 section 960, as interpreted by DP Pham. 7 These latter two categories were not limited by subject 23 24 7 Evidence Code section 960 provides, “There is no privilege under this article as to a 25 communication relevant to an issue concerning the intention of a client, now deceased, with respect to a deed of conveyance, will, or other writing, executed by the client, purporting to 26 affect an interest in property.”

As explained in the court’s October 16, 2025 order, “In DP Pham 27 LLC v. Cheadle, supra, 246 Cal.App.4th at p. 673, the Court of Appeal stated, ‘the purpose of these exceptions [in Evidence Code sections 960 and 961] is to allow an attorney to provide 28 testimony about a client’s intention regarding any instrument affecting an interest in property in the same way the exception codified in section 959 allows an attorney to testify about a client’s

1 matter except to the extent the Evidence Code sections and DP Pham limit them. Thus, 2 Petitioner is entitled to all documents to which a joint client would be entitled under Evidence 3 Code section 962, all documents to which she would be entitled under Evidence Code section 4 960, as it has been interpreted by DP Pham, and all documents that Respondent had already 5 agreed to produce. 6 Respondent contends that the referee did not impose the limitations regarding Evidence 7 Code sections 960 and 961 as Judge Dương had ordered.

However, the referee clearly found that 8 the invoices at issue were available to Petitioner via Evidence Code section 962. The referee 9 stated in his recommendation, “It is the Discovery Referee’s opinion that the invoices identified 10 as item numbers 1 – 11 of the privilege log prepared by MH are not protected by the attorney- 11 client privilege and come within the exception identified at Evidence Code section 962, as ruled 12 by Judge Dương. Further, it is the Discovery Referee’s opinion that item numbers 1 – 11 of the 13 privilege log prepared by MH are not protected by the attorney work product doctrine.” 14 (Discovery Referee’s Recommended Interim Order Following Hearing on Jan. 20, 2026, filed 15 February 4, 2026, p. 2:5-9.)

As discussed above, if Petitioner is entitled to the documents under 16 Evidence Code section 962, there is no need for the documents to also fall under the purview of 17 Evidence Code section 960 or 961 for them to be produced. 18 Respondent argues that Evidence Code section 962 is limited to matters of common 19 interest. Thus, he contends that some of the items that would appear on the invoices may not 20 relate to joint representation. Evidence Code section 962 is limited as Respondent contends. (See 21 Glacier Gen.

Assurance Co. v. Superior Court (1979) 95 Cal.App.3d 836, 842 [“There is a 22 limitation to be found in the statute itself. The limiting phrase is ‘a matter of common 23 interest.’”].) But, M&H has admitted that the representation was a joint representation and it is 24 unclear how or why invoices created in connection with that joint representation would not 25 constitute matters of common interest. Notably, the court is persuaded by Petitioner’s argument 26 that the characterization of property is relevant to the issues raised in the consolidated cases. 27 28 intention about an attested document on which the attorney served as an attesting witness[.]’ ” (October 16, 2025 Order, p. 5:3-8.)

1 Accordingly, the court adopts the referee’s recommendation regarding production of items 1 2 through 11. 3 Respondent also argues that, should the court order production of items 1 through 11, it 4 should allow M&H to redact them to remove any billing entries that “(a) do not fall within the 5 three categories specified in the [October 16, 2025] Production Order; (b) do not constitute 6 ‘matters of common interest’ under Evidence Code section 962; (c) do not express Decedent’s 7 intent as to the transmutation clause; or (d) contain attorney work product or attorney-client 8 privileged communications not subject to the exceptions found applicable by this Court.”

Again, 9 because M&H has represented that the entire representation was a joint representation, the court 10 rejects the first three arguments. As to the work product privilege, the referee found that the work 11 product privilege does not apply to invoices as a general rule. 12 “California courts have generally presumed that invoices for legal services are not 13 categorically privileged.” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2 14 Cal.5th 282, 299, italics in original.)

The California Supreme Court has recognized that “[w]hile 15 invoices may convey some very general information about the process through which a client 16 obtains legal advice, their purpose is to ensure proper payment for services rendered, not to seek 17 or deliver the attorney’s legal advice or representation.” (Id. at p. 295.) Thus, it has held that “the 18 contents of an invoice are privileged only if they either communicate information for the purpose 19 of legal consultation or risk exposing information that was communicated for such a purpose.” 20 (Id. at p. 300.)

The court stated, “To the extent that billing information is conveyed ‘for the 21 purpose of ... legal representation’—perhaps to inform the client of the nature or amount of 22 work occurring in connection with a pending legal issue—such information lies in the heartland 23 of the attorney-client privilege.” (Id. at p. 297.) Here, however, because the purpose of 24 representation was joint, the attorney-client privilege may not be asserted to bar Petitioner from 25 receiving the invoices. 26 As to the work product privilege, Code of Civil Procedure section 2018.030, subdivision 27 (a), governing absolute work product privilege, states, “A writing that reflects an attorney’s 28 impressions, conclusions, opinions, or legal research or theories is not discoverable under any

1 circumstances.” Section 2018.030, subdivision (b), which governs qualified work product 2 privilege, provides, “The work product of an attorney, other than a writing described in 3 subdivision (a), is not discoverable unless the court determines that denial of discovery will 4 unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will 5 result in an injustice.” 6 The court disagrees with the referee that invoices can never be covered by the work 7 product privilege.

Accordingly, to the extent that the invoices to be produced contain core work 8 product, specifically and attorney’s impressions, conclusions, opinions, or legal research or 9 theories under section 2018.030, subdivision (a), M&H may redact the invoices to prevent 10 disclosure of that core work product at this time. To the extent the invoices contain work product 11 falling under 2018.030, subdivision (b), the court finds that failure to produce same will 12 prejudice Petitioner’s case and any such work product cannot be redacted. 13 Respondent also objects to the portion of the referee’s recommendation indicating that 14 M&H must provide an updated privilege log that includes documents going back to the initiation 15 of the representation rather than from 2018 onward.

Respondent contends that the June 6, 2025 16 Order only required him to produce documents “concerning the three enumerated categories 17 relating to the 2018 Trust and the transmutation clause.” (Objection to Recommendation, p. 18 10:16-19.) As discussed above, the court did not limit the document production to the three 19 enumerated categories. It ordered that Petitioner is entitled to documents related to the joint 20 representation under Evidence Code section 962. Here, the joint representation began in 2017 21 based on both Respondent’s declaration in support of the motion to quash the subpoena and the 22 representations of M&H’s counsel to the discovery referee. (See Petitioner’s Opposition to 23 Referee Objection, Ex. 6 [Declaration of James L.

Sorden], ¶ 2 [“Stephen N. Yungling, Esq. . . 24 of the law firm Mullen & Henzell LLP previously represented my wife Anne M. Sorden and me 25 in connection with our estate planning. The representation was limited in scope to providing 26 estate planning advice, assisting in the creation of the Sorden Family 2018 Revocable Trust, 27 exchanging asset and property information, fixing title and transfer of real property, and 28 discussing considerations related to lifetime gifts. The representation began in 2017 and

1 concluded in early 2019.”]; Ex. 13 [transcript of January 20, 2026 hearing before referee], p. 2 41:7-11.) 3 While Respondent filed a declaration in support of his objection to the referee’s 4 recommendation indicating that he was mistaken previously and the work on the 2018 trust did 5 not occur in 2017, the court finds that it is reasonable that a privilege log be provided that 6 includes documents from 2017 if the joint representation occurred in 2017. Respondent’s 7 changing recollection of what actual work was conducted in 2017 does not alter this conclusion. 8 Accordingly, the court adopts the discovery referee’s recommendation that M&H be ordered to 9 provide a further privilege log both identifying documents from the beginning of the joint 10 representation onward and providing further information to allow the referee to make a 11 recommendation as to whether the documents listed on the privilege log are privileged. 12 The discovery referee’s recommendation filed February 4, 2026 is adopted in full save 13 for the order that M&H may not redact core work product privileged material as described in 14 section 2018.030, subdivision (a) from the 11 invoices the discovery referee has ordered 15 produced.

M&H may redact only core work product, consisting of an attorney’s impressions, 16 conclusions, opinions, or legal research or theories from the 11 invoices. 17 Petitioner contends that monetary sanctions and issue sanctions are appropriate but she 18 does not specify an amount and she indicates that she will make a separate motion for same. 19 Accordingly, the court makes no ruling on Petitioner’s sanctions in connection with the 20 discovery referee’s February 4, 2026 recommendation and Respondent’s objection to same. 21 IV.

Motions for Sanctions 22 Petitioner requests monetary sanctions in the amount of $211,426.21 against Respondent 23 and M&H. Petitioner also requests that M&H be ordered to pay $5,000 in sanctions for every 24 day they continue to fail to provide outstanding documents. Finally, she requests issue or 25 evidentiary sanctions against Respondent. 26 Both motions are based on similar authority and involve similar discovery-related 27 conduct. Accordingly, the court will discuss the motions together. 28 A.

Petitioner’s Request for Judicial Notice

1 Petitioner requests judicial notice of (1) the court’s July 3, 2024 Order Granting Motion 2 to Consolidate and Denying Motion to Quash, filed on July 9, 2024 in docket 23CV428384 and 3 (2) the court’s October 20, 2025, Order on Matter Taken Under Submission re: Summary 4 Judgment, filed in docket 22PR193370. The request for judicial notice is GRANTED pursuant to 5 Evidence Code section 452, subdivision (d) with the caveat that while the court is free to take 6 judicial notice of the existence of a document in a court file, it may not take judicial notice of the 7 truth of hearsay statements contained therein. (Lockley v.

Law Office of Cantrell, Green, Pekich, 8 Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) 9 B. Supplemental Declaration of Petitioner’s Counsel 10 On April 23, 2026, Petitioner filed the supplemental declaration of her counsel in support 11 of the motions for sanctions. Respondent objects to the declaration as late-filed. The court notes 12 that these motions previously came on for hearing on May 8, 2026, at which time they were 13 continued to the instant hearing date of May 29, 2026. Thus, the supplemental declaration is late 14 when the original hearing date is considered.

Nonetheless, it was filed before Respondent filed 15 his opposition and he was able to substantively respond to it. Accordingly, the court will exercise 16 its discretion to consider the supplemental declaration. (Cal. Rules Ct., rule 3.1300(d) [court has 17 discretion to consider late-filed papers]; Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 18 765 [same].) 19 C. Legal Background 20 To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected 21 party, person, or attorney, and after opportunity for hearing, may impose the 22 following sanctions against anyone engaging in conduct that is a misuse of the discovery process: 23 (a) The court may impose a monetary sanction ordering that one engaging in the 24 misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a 25 result of that conduct.

The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery 26 process, or on any attorney who advised that assertion, or on both. If a monetary 27 sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial 28

justification or that other circumstances make the imposition of the sanction 1 unjust. 2 (b) The court may impose an issue sanction ordering that designated facts shall be 3 taken as established in the action in accordance with the claim of the party adversely affected by the misuse of the discovery process. The court may also 4 impose an issue sanction by an order prohibiting any party engaging in the misuse of the discovery process from supporting or opposing designated claims or 5 defenses. 6 (c) The court may impose an evidence sanction by an order prohibiting any party engaging in the misuse of the discovery process from introducing designated 7 matters in evidence. 8 (Code Civ.

Proc., § 2023.030, subds. (a)-(c).) 9 “The trial court has broad discretion in selecting discovery sanctions, subject to reversal 10 only for abuse. [Citations.] The trial court should consider both the conduct being sanctioned and 11 its effect on the party seeking discovery and, in choosing a sanction, should ‘ “attempt[] to tailor 12 the sanction to the harm caused by the withheld discovery.” ’ [Citations.] The trial court cannot 13 impose sanctions for misuse of the discovery process as a punishment. [Citations.]” (Doppes v. 14 Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992 (Doppes).) 15 “The discovery statutes evince an incremental approach to discovery sanctions, starting 16 with monetary sanctions and ending with the ultimate sanction of termination. ‘Discovery 17 sanctions “should be appropriate to the dereliction, and should not exceed that which is required 18 to protect the interests of the party entitled to but denied discovery.” ’ [Citation.]

If a lesser 19 sanction fails to curb misuse, a greater sanction is warranted: continuing misuses of the 20 discovery process warrant incrementally harsher sanctions until the sanction is reached that will 21 curb the abuse. ‘A decision to order terminating sanctions should not be made lightly. But where 22 a violation is willful, preceded by a history of abuse, and the evidence shows that less severe 23 sanctions would not produce compliance with the discovery rules, the trial court is justified in 24 imposing the ultimate sanction.’ [Citation.]” (Doppes, supra, 174 Cal.App.4th at p. 992; 25 Mileikowsky v.

Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.) 26 The sanction imposed “should not exceed that which is required to protect the interests of 27 the party entitled to but denied discovery. Where a motion to compel has previously been 28 granted, the sanction should not operate in such a fashion as to put the prevailing party in a better

1 position than he would have had if he had obtained the discovery sought and it had been 2 completely favorable to his cause.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.) 3 Non-monetary sanctions are considered a drastic remedy, only appropriate when a party 4 repeatedly and willfully fails to provide evidence to the opposing party. (Juarez v. Boy Scouts of 5 America, Inc. (2000) 81 Cal.App.4th 377, 390, disapproved on another ground by Brown v. USA 6 Taekwondo (2021) 11 Cal.5th 204, 222, fn. 9.)

The rationale underlying the imposition of an 7 issue sanction is “ ‘that a persistent refusal to comply with an order for the production of 8 evidence is tantamount to an admission that the disobedient party really has no meritorious 9 claim....’ [Citation.]” (Id. at p. 390.) 10 “ ‘ “Only two facts are absolutely prerequisite to imposition of [a non-monetary] 11 sanction: (1) there must be a failure to comply ... and (2) the failure must be wilful [citation].” 12 [Citation.]’ [Citation.]” (Vallbona v.

Springer (1996) 43 Cal.App.4th 1525, 1545.) To prevail on 13 a request for non-monetary sanctions, the moving party must establish that there has been a 14 willful failure to comply with the court’s discovery order. (Liberty Mutual Fire Ins. Co. v. LcL 15 Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1102.) If the moving party makes such a 16 showing, then the burden of proof shifts to the party seeking to avoid sanctions to establish a 17 suitable justification for his or her conduct. (Corns v.

Miller (1986) 181 Cal.App.3d 195, 201.) 18 D. Procedural Background 19 In July 2023, Petitioner served a deposition notice on Respondent in docket 22PR192746. 20 On November 29, 2023, the court entered the parties’ stipulation and order for Respondent to 21 appear at his deposition on April 1, 2024 and to produce non-privileged documents. In April 22 2024, Petitioner filed a motion for monetary and evidentiary sanctions because Respondent 23 failed to appear for his deposition. Respondent filed a competing motion for a protective order. 24 Via written order filed May 15, 2024, the court (Hon.

Dương) denied Petitioner’s requests for 25 sanctions and denied Respondent’s motion for protective order as moot. It ordered Petitioner to 26 serve a new deposition notice on Respondent for a mutually agreeable date and time. 27 On October 20, 2023, Petitioner served a deposition subpoena for the production of 28 business records on Decedent’s and Respondent’s estate planning attorney, Stephen N. Yungling,

1 Esq., an attorney with M&H, listing only docket number 22PR193370. Mr. Yungling asserted 2 the attorney-client privilege on behalf of Respondent. Petitioner filed a motion to compel 3 compliance with the subpoena, which the court (Hon. Lori Pegg) denied via written order filed 4 February 20, 2024. At that time, the dockets had not yet been consolidated and the court found 5 that Petitioner had failed to show relevance for the items sought. 6 Respondent was deposed on July 16, 18, 19 and 29, 2024.

He produced some 3,800 7 documents in connection with the deposition. 8 8 On September 18, 2024, Petitioner served her subpoena on M&H and, in October 2024, 9 Respondent filed his motion to quash that subpoena. As mentioned above, on June 6, 2025 the 10 court issued an order granting in part and denying in part Respondent’s motion to quash a 11 subpoena served by Petitioner on Mr. Yungling and ordering Mr. Yungling to produce the 12 documents Respondent agreed to produce, documents to which Petitioner would be entitled as a 13 successor in interest to a joint client under Evidence Code section 962, and documents to which 14 Petitioner would be entitled under Evidence Code section 960, as limited by case law.

In its June 15 6, 2025 order, faced with Respondent’s alleged inability to sit for further deposition, the court 16 also directed that Respondent be deposed via written deposition questions under section 17 2028.010. The court also directed Respondent to respond to certain specific questions regarding 18 his representation by Mr. Yungling. Petitioner represents that Respondent still has not completed 19 his deposition. 20 On October 16, 2025, the court signed an order regarding Petitioner’s request that the 21 court enforce its June 6, 2025 order.

That order was filed on October 17, 2025. 22 E. Merits 23 Petitioner’s main argument for sanctions is that both Respondent and M&H failed to 24 provide requested discovery despite the June 6, 2025 Order, the October 16, 2025 Order, and the 25 discovery referee’s recommendation filed February 4, 2026 following the hearing on January 20, 26 2026. As discussed above, the June 6, 2025 Order and the October 16, 2025 Order both found 27 8 Petitioner contends that Respondent made the initial 3,400 page production 21 minutes before 28 the start of the deposition and out of order and he made the second production of 436 documents on June 29, 2024 when the deposition had been ongoing.

1 that Petitioner was entitled to documents in M&H’s file for Respondent and Decedent to the 2 extent they fell under the exceptions to the attorney-client privilege contained in Evidence Code 3 section 962 and Evidence Code section 960, as interpreted by case law and the three categories 4 of items Respondent had already agreed to produce. The discovery referee ordered M&H to 5 produce 11 invoices related to the representation of Respondent and Decedent and also ordered a 6 more robust privilege log covering documents from the beginning of the representation in 2017 7 and providing more information for the discovery referee to make his determination regarding 8 whether any privilege could apply to the documents listed on the log.

Petitioner contends that 9 Respondent and M&H have violated these orders and refused to provide responsive documents, 10 which are in the possession of M&H. 11 Petitioner maintains that both M&H and Respondent have misused the discovery process. 12 (Code Civ. Proc., § 2023.010, subds. (d) [“Failing to respond or to submit to an authorized 13 method of discovery” is a misuse of the discovery process.], (g) [“Disobeying a court order to 14 provide discovery” is a misuse of the discovery process].)

Accordingly, the requests sanctions in 15 the amount of $211,426.21 against M&H, Mr. Yungling, and/or M&H’s counsel and against 16 Respondent for her efforts over the course of more than a year to obtain the requested discovery. 17 She also requests that M&H pay sanctions of $5,000 per day until the full file is produced. (See 18 Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605 19 [“[T]he court could have imposed a significant monetary penalty for every day Watchtower did 20 not search for the documents or for each day the responsive documents were not produced.”].) 21 Respondent asserts that the court declined to order monetary and issue sanctions in favor 22 of Petitioner in connection with either the June 6, 2025 Order or the October 16, 2025 Order.

In 23 its October 16, 2025 Order, the court expressly found that M&H and Mr. Yungling acted with 24 substantial justification in failing to turn over the documents as ordered by the court because 25 Respondent, the surviving client, had objected to their production. (See October 16, 2025 Order, 26 p. 8:20-24.) It further found that the language of the June 6, 2025 Order was not the clearest and 27 that M&H should not be faulted for its narrow interpretation of that order. (See id. at p. 8:24-26.) 28 The court further held that Respondent himself acted with substantial justification in asserting

1 the attorney-client privilege given the dearth of authority regarding the workings of the attorney- 2 client privilege when one joint client is alive and the other is deceased. (See id. at pp. 7:18-8:3.) 3 Accordingly, the court denied Petitioner’s request for issue sanctions against Respondent. The 4 court also denied Petitioner’s request for sanctions in the June 6, 2025 Order. 5 In her supplemental declaration, Petitioner’s counsel declares that two emails from 6 Respondent and Jim Sorden to certified public accountant Geoffrey L.

Lamb, were produced to 7 her on April 22, 2026. (Supplemental Declaration of Jaime B. Herren in Support of [Motion for 8 Sanctions] (“Supplemental Herren Decl.”), ¶¶ 9-33.) Petitioner contends that one email, dated 9 October 1, 2018, consists of Jim Sorden forwarding correspondence from Mr. Youngling to Mr. 10 Lamb. (Id. at ¶ 11.) She asserts that the second, dated May 1, 2019, is sent from Respondent to 11 Mr. Lamb and discusses Respondent and Decedent’s gifting. (Id. at ¶ 12.) Petitioner contends 12 that these emails are directly responsive to her subpoena and that the fact that they were not 13 previously produced establishes that Respondent and M&H intentionally concealed documents 14 that they were ordered to produce.

In response, Respondent has provided his own declaration in 15 which he asserts that he used key words to search his email account but they did not return the 16 email from himself to Mr. Lamb. (Declaration of James L. Sorden in Opposition to [Motion for 17 Sanctions], ¶ 5.) The court has reviewed the emails and it appears that both emails were from Jim 18 Sorden to Mr. Lamb. (Supplemental Herren Decl., Exs. P&Q.) Based on the emails themselves, 19 it does not appear that Respondent was included in the recipient or sender lines.

Thus, it is not 20 clear that Respondent had access to these emails to be able to produce them. Similarly, the court 21 is not aware of any affiliation between Mr. Lamb and M&H and it does not appear that M&H 22 would have been able to produce the emails either. Accordingly, the supplemental declaration 23 does not assist Petitioner in establishing that Respondent or M&H knowingly withheld 24 documents. 25 Ultimately, the court finds Respondent’s argument that the court previously found that he 26 and M&H acted with substantial justification in failing to produce the documents prior to the 27 October 16, 2025 Order persuasive.

Respondent and M&H also argue that the discovery 28 referee’s February 4, 2026 interim order is not binding and it must be approved by the court.

1 Because Respondent has raised an objection to the interim order and the court had not yet 2 adopted it at the time the parties filed their briefs on these motions, neither M&H nor 3 Respondent has been ordered by the court to produce documents at this time. 4 While the court agrees that the referee’s order is not binding until the court adopts it, it is 5 nonetheless troubled by Respondent’s apparent position that the October 16, 2025 Order was 6 limited by the three categories of documents the court ordered Petitioner was entitled to on the 7 basis of Respondent’s agreement to produce them.

As discussed above, the October 16, 2025 8 order indicated that Petitioner was also entitled to documents to which a successor in interest of a 9 joint client would be entitled under Evidence Code 962 and those to which she would be entitled 10 under Evidence Code section 960, as limited by case law. Thus, to the extent documents in the 11 file fall under Evidence Code sections 962 and 960, which are exceptions to the attorney client 12 privilege, Petitioner is entitled to them. Because the court did not know what documents were in 13 the file or whether there was any representation by M&H or Mr.

Yungling that was not joint 14 representation, the court delegated the task of determining which specific documents would be 15 produced to the discovery referee. The court finds that the October 16, 2025 Order was clear in 16 that regard. Accordingly, the court finds that some amount of monetary sanctions is appropriate. 17 Specifically, the court orders Respondent to pay $11,068.21, the amount Petitioner incurred in 18 attending the January 20, 2026 hearing with the referee and the $3,150 incurred in making the 19 instant motion for sanctions against Respondent (half of the $6,300 Petitioner incurred for both 20 sanctions motions), for a total of $14,218.21.

The court finds that Respondent’s conduct in 21 persisting in his argument, in his objection to the referee’s recommendation, that the October 16, 22 2025 Order was limited solely to the three categories of items he agreed to produce is without 23 substantial justification and tantamount to making an improper objection. (See § 2023.010, subd. 24 (e).) Because M&H is acting at Respondent’s direction, the court finds that M&H should not be 25 sanctioned. Petitioner’s motion for monetary sanctions against M&H is DENIED.

The motion 26 for monetary sanctions against Respondent is GRANTED IN PART in the amount of 27 $14,218.21. The court DENIES Respondent’s request for sanctions in connection with the 28 motion for sanctions against him.

1 The court declines to sanctions M&H $5,000 per day until it produces the full file. 2 Notably, as discussed above, the court did not adopt the discovery referee’s recommendation 3 until now and the issue of production of the remaining documents listed on the privilege log 4 remains to be decided by the discovery referee. At this time, the issue of whether the work 5 product privilege covers the remaining documents has yet to be decided. Under these 6 circumstances, the court will not sanction M&H until it produces the full file. 7 As to the issue or evidentiary sanctions, the court finds such sanctions premature as it has 8 not yet imposed monetary sanctions and, in fact, found that Respondent acted with substantial 9 justification in opposing the production of documents prior to the court’s October 16, 2025 10 Order.

Further, the discovery referee has not yet decided whether the remaining items listed on 11 M&H’s privilege log (other than the 11 invoices) should be produced. Accordingly, it remains 12 unclear whether Petitioner will receive the documents before trial, which has not yet been re-set. 13 Accordingly, the request for issue or evidentiary sanctions is DENIED. 14 CONCLUSION 15 The motion for reconsideration and motion for relief will be CONTINUED to a date to be 16 determined at the hearing on these matters.

Respondent is ordered to inform the court as to the 17 outcome of the order to show cause re dismissal in docket H054004. 18 Petitioner’s motion for protective order is DENIED except to the extent the motion asks 19 for an order that the motion to compel responses and documents at the deposition of Yael Rakib 20 was not pending at the time the court made its October 16, 2025 order on Respondent’s motion 21 to continue trial. Respondent’s request for sanctions in connection with the motion for protective 22 order is DENIED.

The hearing date for Respondent’s motion to compel further responses to 23 requests for production of documents and motion to compel further responses to special 24 interrogatories, set two, both scheduled for July 29, 2026, is hereby VACATED. 25 The discovery referee’s recommendation filed February 4, 2026 is adopted in full save 26 for the order that M&H may not redact core work product privileged material as described in 27 section 2018.030, subdivision (a) from the 11 invoices the discovery referee has ordered 28

1 produced. M&H may redact only core work product, consisting of an attorney’s impressions, 2 conclusions, opinions, or legal research or theories from the 11 invoices. 3 Petitioner’s motion for monetary sanctions against M&H is DENIED. The motion for 4 monetary sanctions against Respondent is GRANTED IN PART in the amount of $14,218.21. 5 the request for issue or evidentiary sanctions is DENIED. The request that M&H be sanctioned 6 $5,000 per day until the entire file is produced is DENIED. The court DENIES Respondent’s 7 request for sanctions in connection with the motion for sanctions against him. 8 The parties are ordered to provide a copy of this order to the discovery referee. 9 IT IS SO ORDERED. 10 Dated: ___________, 2026 ________________________________ 11 Hon. Theodore C. Zayner 12 Judge of the Superior Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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