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1 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
2 Including Professional Corporations ELECTRONICALLY
STEVEN P. BRACCINI, Cal. Bar No. 230708
3 KENDAL E. FLETCHER, Cal. Bar No. 281817 F I L E D
Superior Court of California,
379 Lytton Avenue County of San Francisco
4 Palo Alto, California 94301
Telephone: 650.815.2618 05/19/2020
Clerk of the Court
5 Facsimile: 650.815.4677 BY: MADONNA CARANTO
E mail: sbraccini@sheppardmullin.com Deputy Clerk
6 kfletcher@sheppardmullin.com
7 Attorneys for Defendant Patricia Brotman
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF SAN FRANCISCO, CIVIL DISTRICT
10
11
CAYLEY KUTLER, an individual, Case No. CGC-19-575730
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Plaintiff, DEFENDANT PATRICIA
13 BROTMAN’S OBJECTION TO
v. PLAINTIFF CAYLEY KUTLER’S
14 NOTICE OF RELATED CASE
PATRICIA BROTMAN, an individual;
15 JAMES KUTLER, an individual; and
16 DOES 1-20, inclusive,
17 Defendants.
18
19 I. INTRODUCTION
20 Defendant Patricia Brotman (“Pat”) hereby objects to Plaintiff Cayley Kutler’s
21 (“Cayley”) Notice of Related Case (“Notice”) filed on June 14, 2020, purporting to notify
22 the Court that the action entitled In the Matter of: The Harold Bernard Kutler and
23 Kathleen Alice Kutler Family trust, dtd 5/12/2017, Case No. 37-2018-00037554-PR-TR-
24 CTL (the “San Diego Action”), pending in the Superior Court of California, County of
25 San Diego, is related to the instant action (the “San Francisco Action,” together with the
26 San Diego Action, the “Actions”).
27 Respectfully, the Actions have nothing to do with one another. In fact, the only
28 relationship between the Actions is that they both involve Cayley and her brother, James
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
1 Kutler (“Jim”). Otherwise, the Actions involve efforts by Cayley to invalidate changes
2 made to two completely different trusts (in the San Diego Action, her late parents’ trust; in
3 the San Francisco Action, her late aunt’s trust). Pat is not even a party to the San Diego
4 Action, nor has Cayley alleged Pat was involved in the changes made to the trust in that
5 action. As such, the Actions do not meet the criteria for related cases under California
6 Rule of Court, Rule 3.300 because they are not “based on the same or similar claims”, do
7 not “arise from substantially identical transactions, incidents, or events”, and do not
8 “involve claims against, title to, possession of, or damages to the same property.” The
9 Notice is nothing more than the first step in an improper attempt by Cayley to transfer
10 venue of the San Francisco Action to the San Diego County Superior Court.
11 Accordingly, Pat respectfully requests that the Court decline to order that the
12 Actions be related.
13 I. FACTUAL BACKGROUND
14 A. The San Diego Action
15 On June 27, 2018, Cayley filed the Petition for Determination of Invalidity of
16 Second, Third, and Fourth Amendments to the Trust; for Determination of Invalidity of
17 Second Codicil to the Will of Harold Bernard Kutler; and for All Other Orders the Court
18 Deems Property (the “Petition”) in the San Diego Action. (Declaration of Kendal E.
19 Fletcher in Support of Defendant Patricia Brotman’s Objection to Plaintiff Cayley Kutler’s
20 Notice of Related Case [“Fletcher Declaration”] at ¶ 4, Ex. A.) The Petition seeks to
21 invalidate various amendments and restatements to the trust established by Cayley and
22 Jim’s parents, Harold Cutler (“Harold”) and Kathleen Kutler (“Kathleen”), titled the
23 Harold Bernard Kutler and Kathleen Alice Kutler Family Trust, dated May 12, 1987, as
24 restated and amended (the “Kutler Trust”). Specifically, Cayley seeks to invalidate: (1)
25 the Second Amendment to the Kutler Trust, executed by Harold and Kathleen on
26 December 29, 2008, alleging Kathleen lacked capacity at the time of its execution; (2) the
27 Third Amendment to the Kutler Trust, executed by Harold and Kathleen on July 22, 2010,
28 alleging Kathleen lacked capacity at the time of its execution and was pressured into
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
1 executing the document by Jim and Harold; and (4) the Fourth Amendment to the Kutler
2 Trust, executed by Harold on March 14, 2016 after Kathleen’s death, alleging it was
3 procured through undue influence by Jim even though it did not increase his beneficial
4 interest in the Kutler Trust or benefit him in any way, and that Harold lacked capacity at
5 the time of its execution. Pat is not a party to the San Diego Action, is not a beneficiary of
6 the Kutler Trust, and the Petition does not allege Pat was in any way involved in the
7 changes made to the Kutler Trust. (Fletcher Decl. at ¶ 4.)
8 B. The San Francisco Action
9 On May 6, 2019, Cayley filed her Complaint for: 1. Lack of Capacity, 2. Undue
10 Influence, 3. Financial Elder Abuse, 4. Intentional Interference With Expected Inheritance,
11 5. Rescission & Restitution (the “Complaint”) in the San Francisco Action. (Fletcher
12 Decl. at ¶ 5, Ex. B.) The Complaint alleges that Pat, who is Cayley’s aunt, and Jim
13 worked together to procure changes to the Bentley Living Trust dated June 13, 1992 (the
14 “Bentley Trust”), which was established by Cayley’s late aunt (and Pat’s sister), June
15 Bentley (“June”). Specifically, Cayley alleges Jim and Pat unduly influnced June to
16 execute a restatement of the Bentley Trust on October 4, 2016 (the “Restatement”) that
17 disinherited Cayley and left the bulk of the Bentley Trust to Pat, even though Pat was
18 already the primary beneficiary under the prior iteration of the Bentley Trust, and Jim was
19 also disinherited by the Restatement. Cayley further alleges the Restatement is invalid
20 because June lacked capacity at the time of its execution and that Pat and Jim engaged in
21 financial elder abuse when they procured the Restatement. The Bentley Trust is totally
22 unrelated to the Kutler Trust.
23 II. THE ACTIONS ARE NOT “RELATED CASES”
24 Cases are “related” if they: “(1) Involve the same parties and are based on the same
25 or similar claims; (2) Arise from the same or substantially identical transactions, incidents,
26 or events requiring the determination of the same or substantially identical questions of
27 law or fact; (3) Involve claims against, title to, possession of, or damages to the same
28 property; or (4) Are likely for other reasons to require substantial duplication of judicial
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
1 resources if heard by different judges.” Cal. R. Ct. 3.300(a). The Actions do not satisfy
2 any of these requirements.
3 A. The Actions Do Not Involve the Same Parties, and Are Not Based on
Similar Claims.
4
5 Pat is not a party to the San Diego Action, so the Actions do not involve the same
6 parties.
7 The Actions also do not involve similar claims. In the San Diego Action, Cayley
8 alleges various amendments to the Kutler Trust were the result of lack of capacity of the
9 settlors, Kathleen and Harold, and undue influence by Jim. In the San Francisco Action,
10 Cayley alleges that the Restatement of a completely different trust – the Bentley Trust –
11 was the result of lack of capacity of a completely different settlor – June – and undue
12 influence by a completely different defendant – Pat.
13 B. The Actions Do Not Require the Determination of the Same or
Substantially Identical Question of Law or Fact.
14
15 The Actions involve completely different questions of law and fact. Specifically,
16 the San Diego Action will require the Court to decide whether Kathleen and Harold lacked
17 capacity at the time they executed the subject amendments to the Kutler Trust, and whether
18 Harold was unduly influenced by Jim. On the other hand, the San Francisco Action will
19 require the Court to decide whether June lacked capacity at the time she executed the
20 Restatement, whether June was unduly influenced by Pat and Jim, and whether Pat and Jim
21 are liable for financial elder abuse. Cayley also claims in the San Francisco Action that
22 she is entitled to a jury trial based on her cause of action for financial elder abuse, but has
23 not alleged financial elder abuse in the San Diego Action and, as such, has no basis to
24 demand a jury trial.
25 C. The Actions Do Not Involve Claims Related to the Same Property.
26 The San Diego Action concerns the assets of Harold and Kathleen, which are held
27 in the Kutler Trust. The San Francisco Action concerns the assets of June, which are held
28 in the Bentley Trust. Thus, the Action do not involve claims related to the same property.
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
1 D. The Actions Are Not Likely to Require Substantial Duplication of
Judicial Resources if Heard by Different Judges.
2
3 The Actions are not likely to require substantial duplication of the judicial resources
4 if heard by different judges because Pat is not a party to the San Diego Action and
5 presently has no intention of appearing or filing any pleadings or motions in that action.
6 As to Jim, the claims made against him in the San Francisco Action are completely
7 different than the claims made in the San Diego Action, and these disparate factual
8 landscapes will drive the various motions and legal issues to be decided by the Court.
9 Thus, judicial resources will not be duplicated if the Actions are heard by different
10 judges.
11
12 Dated: May 19, 2020
13 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
14
15 By
STEVEN P. BRACCINI
16
KENDAL E. FLETCHER
17 Attorneys for Defendant PATRICIA BROTMAN
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
1 DECLARATION OF KENDAL E. FLETCHER
2 I, Kendal Fletcher, declare as follows:
3 1. I am an attorney duly admitted to practice before this Court. I am an
4 associate with Sheppard, Mullin, Richter & Hampton LLP, attorneys of record for
5 Defendant Patricia Brotman (“Pat”).
6 2. If called as a witness, I could and would competently testify to all
7 facts within my personal knowledge except where stated upon information and belief.
8 3. This declaration is submitted in support of Defendant Patricia
9 Brotman's Objection to Plaintiff Cayley Kutler's Notice of Related Case.
10 4. Attached hereto as EXHIBIT A is the Petition for Determination of
11 Invalidity of Second, Third, and Fourth Amendments to the Trust; for Determination of
12 Invalidity of Second Codicil to the Will of Harold Bernard Kutler; and for All Other
13 Orders the Court Deems Property filed by Cayley Kutler in the action entitled In the
14 Matter of: The Harold Bernard Kutler and Kathleen Alice Kutler Family trust, dtd
15 5/12/2017, Case No. 37-2018-00037554-PR-TR-CTL, pending in the Superior Court of
16 California, County of San Diego. Pat is not a party to that action and presently has no
17 intention of appearing or filing any pleadings or motions in that action.
18 5. Attached hereto as EXHIBIT B is the Complaint for: 1. Lack of
19 Capacity, 2. Undue Influence, 3. Financial Elder Abuse, 4. Intentional Interference With
20 Expected Inheritance, 5. Rescission & Restitution filed by Cayley Kutler in the instant
21 action.
22 I declare under penalty of perjury under the laws of the State of California
23 that the foregoing is true and correct.
24 Executed on this 19th day of May, 2020, at San Francisco, California.
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26
Kendal E. Fletcher
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SMRH:4837-3405-4076.1 DEFENDANT PATRICIA BROTMAN’S OBJECTION TO PLAINTIFF CAYLEY
KUTLER’S NOTICE OF RELATED CASE
Exhibit A
1 Richard S. Van Dyke, Esq. (SBN 196753)
Geoffrey J. Farwell, Esq. (SBN 293277)
2
3
VAN DYKE & ASSOCIATES, APLC
1230 Columbia Street, Suite 540
San Diego, California 92101
F I L E D
Clerk of the Superior Court
4 Telephone: (619) 344-0977 JUL 2 7 2018 \bi
Facsimile: (619) 599-0716
5
6 Attorneys for CAYLEY ANN KUTLER,
Trust Beneficiary
7
8
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SAN DIEGO
11
CENTRAL DIVISION, PROBATE DEPARTMENT
12
eRt9 Pr
13 In the Matter of: Case No. 37-2018-00037554-PR-TR-CTL
14
THE HAROLD BERNARD KUTLER AND PETTTION FOR DETERMINATION OF
15 KATHLEEN ALICE KUTLER FAMILY INVALIDITY OF SECOND, THIRD, AND
TRUST, dated May 12, 1987, as restated and FOURTH AMENDMENTS TO THE
16 amended TRUST; FOR DETERMINATION OF
17 INVALIDITY OF SECOND CODICIL TO
THE WILL OF HAROLD BERNARD
18 KUTLER; AND FOR ALL OTHER
IMAGED FILE] ORDERS THE COURT DEEMS PROPER
19
20 [Probate Code § 17200]
21
22
23 Comes now Cayley Ann Kutler ("Petitioner" or "Cayley"), beneficiary of the Harold Bernard
24 Kutler and Kathleen Mice Kutler Family Trust, dated May 12, 1987, as restated and amended
25 ("Trust"), who for her Petition for Determination of Invalidity of Second, Third, and Fourth
26 Amendments to the Trust; For Determination of Invalidity of Second Codicil to the Will of Harold
27 Bernard Kutler, and for all Other Orders the Court Deems Proper, alleges as follows:
28 ///
PETITION
Page! of 12
e5
1 I.
2 THE TRUST, JURISDICTION AND VENUE
3 1. On or about May 12, 1987, Harold B. Kutler and Kathleen A. Kutler (hereinafter also
4 referred to collectively as "Seniors"), executed a revocable living trust agreement, known as the
5 Harold Bernard Kutler and Kathleen Alice Kutler Family Trust (the "Trust").
6 2. Petitioner is informed and believes, and thereon alleges, that after executing the Trust
7 in 1987, Seniors, or either of them, restated the Trust, namely the Restated Revocable Inter-Vivos
8 Trust Agreement of Harold Bernard Kutler and Kathleen Mice Kutler on February 18, 1995 (the
9 "Restatement"). The Restatement revoked all prior trusts and restated the terms of the Trust. A true
10 and correct copy of the Restatement is attached hereto as Exhibit A.
11 3. Petitioner is informed and believes, and thereon alleges, that after executing the
12 Restatement in 1995, on at least three separate occasions, the Settlors amended the Restatement,
13 namely the First Amendment dated November 12, 2004 (referred to hereafter as "First Amendment"),
14 the Second Amendment dated December 29, 2008 (referred to hereafter as "Second Amendment"),
15 and the Third Amendment dated July 22, 2010 (referred to hereafter as "Third Amendment"). True
16 and correct copies of the First Amendment, Second Amendment, and Third Amendment are attached
17 hereto as Exhibit B, Exhibit C, and Exhibit D.
18 4. Kathleen Mice Kutler died on February 15, 2012.
19 5. Approximately four years after Kathleen's death, Harold executed the Fourth
20 Amendment dated March 14, 2016 (referred to hereafter as "Fourth Amendment"). A true and correct
21 copy of the Fourth Amendment is attached hereto as Exhibit E. On that same date, Harold signed the
22 Second Codicil to the Will of Harold Bernard Kutler (referred to hereafter as "Second Codicil"). A
23 true and correct copy of the Second Codicil is attached hereto as Exhibit F.
24 6. Harold Kutler died on March 6, 2018. Petitioner is informed and believes, and thereon
25 alleges, that senior's son James P. Kutler accepted the position of co-trustee with settlor prior to
26 senior's death and has agreed to serve as successor trustee of the Trust following Harold Kutler's
27 death. A true and correct copy of the Notification by Trustee is attached hereto as Exhibit G.
28 According to the Notification, the principal place of the primini station of the Trust is located at 1200
PETMON
Page 2 of 12
1 Harbor Drive North, Apt. 8D, Oceanside, CA 92054. (See Id.)
2 7. The Trust is not under the continuing jurisdiction of the court. Petitioner voluntarily
3 elects to submit this petition to the court.
4 8. The Superior Court of California has jurisdiction to hear this matter pursuant to
5 Section 17003 of the California Probate Code. The principal place of administration of the trust
6 determines venue. Because the principal place of administration of the Trust is Oceanside, California,
• 7 this Court is the proper venue for this proceeding pursuant to Probate Code Section 17005.
8 9. Upon the death of the surviving settlor, certain assets of the trust were to be distributed
9 among the trust beneficiaries. As set forth herein, petitioner Cayley Kutler, a surviving child of both
10 settlors, is entitled to an equal share of the trust residue and remainder under Article 3, Section 3.1,
11 paragraph D3. As such, Petitioner is a vested beneficiary under the trust, and therefore has standing
‘C
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9 12 to bring this action.
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,
2 13 H.
CC
14 FACTUAL BACKGROUND
A
' 7,2•
•••4
S trZ 15 A. Seftlors' Personal History
16 10. Harold Kutler was born on September 21, 1926, in Long Beach, California. During his
<
S 17
Z lifetime, he owned and operated a successful vitamin business in Oceanside, California. In 1979, he
18 and Kathleen turned their attention to philanthropy by founding a soup kitchen which later became
19 Brother Benno's Foundation. The first meal was served on October 21, 1983. In 1991, the Brother
20 Benno's Foundation moved to its present location, a 12,000 square foot warehouse at 3260 Production
21 Avenue in Oceanside, which has been divided into a dinner room, full kitchen, children's reading
22 room, administrative office, shower room, clothing room, computer lab, chapel, restroom and
23 warehouse space. In addition, the foundation maintains several sober living homes in the Oceanside
24 area.
25 11. Harold and Kathleen Kutler are the parents of James Kutler, Kevin Kutler and Cayley
26 Kutler, and grandparents of Brandon Beveridge and Blake Beveridge (issue of Cayley Kutler).
27 12. Kathleen Kutler died of Parkinson's disease on February 15, 2012, after many years
28 of suffering the debilitating effects of that disease including bouts of hallucinations and delusions.
PETITION
Page 3 of 12
1 13. Settlor's son, James Kutler, suffers from mental illness, and his relationship with his
2 parents was fraught with acrimony and animosity. Petitioner is informed and believes, and thereon
3 alleges that he James Kutler has never been employed, and has either lived with his parents, or has
4 been homeless living out of his car. However, Petitioner is informed and believes, and thereon alleges
5 that in or around 2012, James Kutler re-engaged his father, and since that time he has operated as the
6 caretaker for Harold Kutler.
7 14. During that time, Harold Kutler suffered from the effects of James Kutler's mental
8 illness and received treatment for mental health issues of his own. For example, Harold was treated
9 for hallucinations, believing incorrectly that he lived with four other people in his home.
10 15. Petitioner is informed and believes, and thereon alleges, that Harold was treated by his
11 psychiatric physician, Robert Neborsky, M.D., in Del Mar, California for his hallucinations, that he
12 was prescribed medications to alleviate his symptoms, and that he was referred to see an eye specialist
13 for diagnosis regarding possible eye degeneration. However, Petitioner is informed and believes, and
14 thereon alleges, that James Kutler never filled Harold's prescription from Dr. Neborsky, and never
15 followed up on the referral for Harold to see the eye specialist.
16 16. Despite his wealth, Harold was relegated to living like a "hoarder" with James. His
17 mental health issues together with the deplorable living conditions, loss of a spouse, advanced age
18 and physical illness, rendered Harold Kutler vulnerable to the undue influence and/or elder abuse by
19 James.
20 17. In early-2018, while at his home and under James Kutler's care, Harold Kutler fell and
21 fractured both of his hips. Petitioner is informed and believes, and thereon alleges, that, on March 6,
22 2018, Harold Kutler died of complications resulting from that fall.
23 B. Kathleen Kutler's Age and Declining Health, Resulting in Diminished Capacity, and
24 Subsequent Deception at the Hands of Her Husband and Son
25 18. Petitioner is informed and believes, and thereon alleges, that Kathleen's advanced-
26 stage (and largely untreated) Parkinson's disease caused her to suffer from significant hallucinations
27 and delusions in the later years of her life. Petitioner is informed and believes, and thereon alleges,
28 that these mental deficits had a direct correlation with Kathleen's execution of the Second
PETITION
Page 4 of 12
1 Amendment and the Third Amendment.
2 19. Petitioner is informed and believes, and thereon alleges, that, in July 2010, Kathleen
3 had been admitted to the hospital for treatment of symptoms arising from her Parkinson's disease.
4 Petitioner is informed and believes, and thereon alleges, that, on or about July 22, 2010, Harold and
5 James Kutler appeared at the room where Kathleen was admitted, and coerced Kathleen to sign both
6 the Third Amendment (Exhibit D) and a Resignation of Trustee document (Exhibit H). Petitioner is
7 informed and believes, and thereon alleges, that Kathleen was unaware of the nature and effect of the
8 Third Amendment or Resignation of Trustee but signed the documents because of excessive pressure
9 exerted upon her by Harold and/or James Kutler. Kathleen resigned as trustee precisely because of
10 her incapacity and it is therefore highly likely that she was in a "daze" at the time, and did not
11 understand the documents, or even know what they were.
12 20. Petitioner is informed and believes, and thereon alleges, that the advanced stage of the
13 disease, among other of Kathleen's illnesses, caused significant impairments to her cognitive
14 functioning. As a result, Petitioner is informed and believes, and thereon alleges, that Kathleen lacked
15 the legal mental capacity prior to and during the execution of the Second Amendment and the Third
16 Amendment, and did not understand the effect of those instruments.
17 HI.
18 PETITION FOR DETERMINATION OF INVALIDITY OF THE SECOND AND THIRD
19 AMENDMENTS DUE TO KATHLEEN KUTLER'S LACK OF LEGAL MENTAL
20 CAPACITY
21 21. Petitioner is challenging the Second and Third Amendments to the Trust, dated
22 December 29, 2008, and July 20, 2010, respectively, based upon the incapacity of settlor Kathleen
23 Kutler.
24 22. As set forth herein, supra, Petitioner is informed and believes, and thereon alleges,
25 that Kathleen lacked the requisite legal mental capacity to execute any amendments to her trust since
26 at least 2007, and possibly prior, including but not limited to the Second Amendment and the Third
27 Amendment.
28 23. Probate Code sections 810 to 812 set forth a mental capacity standard related to certain
PETITION
Page 5 of 12
1 legal acts and decisions, including, inter alia, the creation of a trust. Section 811, subdivision (a)
2 provides that a person lacks capacity when there is a deficit in at least one identified mental function
3 and "a correlation [exists] between the deficit or deficits and the decision or acts in question...."
4 Section 812 provides:
5 Except where otherwise provided by law, including, but not limited to ...
the statutory and decisional law of testamentary capacity, a person lacks the
•6 capacity to make a decision unless the person has the ability to communicate
... the decision, and to understand and appreciate, to the extent relevant ...
7
(a) The rights, duties, and responsibilities created by, or affected by the
8 decision[;] (b) The probable consequences for the decisionmaker and,
where appropriate, the persons affected by the decision [; and] (c) The
9 significant risks, benefits, and reasonable alternatives involved in the
10 decision. (Probate Code, § 812, subds. (a)—(c).)
11 24. The Second Amendment was a substantial and complex change to the Kutler Family
12 Trust and included complex provisions (Article 3, Section 3.1, paragraph D2) changing a prior trust
13 provision granting a lease of the trust's commercial real property asset to the Brother Benno
14 Charitable Foundation, to an outright distribution of that asset free from trust.
15 25. The Third Amendment was a substantial and complex change to the Kutler Family
16 Trust because that amendment (Article 3, Section 3.1, paragraph D3), created Lifetime Trusts for
17 Children in specified amounts, in addition to Article 3, Section 3.1, paragraph D4's residue
18 provisions. The Lifetime Trust for petitioner Cayley Kutler, was further divided into generation
19 skipping subtrusts, including a Special Needs Trust for Brandon Kutler Beveridge dated December
20 22, 2008.
21 26. Petitioner is informed and believes, and thereon alleges, that Kathleen Kutler, who
22 died of causes related to her progressive Parkinson's disease, (i) could not understand the rights,
23 duties, and responsibilities created and/or affected by the Second or Third Amendments, (ii) did not
24 understand the probable consequences arising out of her execution of the Second or Third
25 Amendment, and (ifi) did not understand the risks, benefits, and reasonable alternatives to the Second
26 or Third Amendments. In the years prior, Kathleen had numerous adverse health events, including,
27 but not limited to, symptoms arising as a result of advanced Parkinson's disease, including
28 hallucinations and delusions. These factors caused, and/or contributed to, deficits in Kathleen's
PETITION
Page 6 of 12
1 mental functions, and those deficits were directly correlated with her execution of the Second and
2 Third Amendments.
3 27. Petitioner is informed and believes, and thereon alleges, that the late stage of
4 Kathleen's Parkinson's disease, combined with Kathleen's advanced age and other illnesses, caused
5 significant impairments to her cognitive functioning, severe fluctuations in her lucidity and mental
6 clarity, and rendered her unable to comprehend the rights, duties, and responsibilities created by, or
7 affected by the Second or Third Amendments, nor the probable consequences of the execution of
8 those documents, nor that she had any alternative to signing the Second or Third Amendments. The
9 Court should therefore determine each of those documents invalid.
10 IV.
11 PETITION FOR DETERMINATION OF INVALIDITY OF THE THIRD AND FOURTH
12 AMENDMENTS, AND THE SECOND CODICIL TO THE WILL OF HAROLD BERNARD
13 KUTLER, AS THE PRODUCT OF UNDUE INFLUENCE UPON HAROLD !CUTLER
14 28. Welfare and Institutions Code Section 15610.70(a) (made applicable here through
15 Probate Code Section 86) defines undue influence as "excessive persuasion that causes another person
16 to act or refrain from acting by overcoming that person's free will and results in inequity." Under that
17 section, undue influence consists of the following four factors: the vulnerability of the victim, the
18 influencer's apparent authority, the actions or tactics used by the influencer, and the equity of the
19 result.
20 29. Under Welfare and Institutions Code Section 15610.70(a)(1), "vulnerability" includes
21 "mental incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional
22 distress, isolation, or dependency, and whether the influencer knew or should have known of the
23 alleged victim's vulnerability." At the time that he signed the Third Amendment, Harold was 83 years
24 old. At the time that he signed the Fourth Amendment, Harold was 89 years old. Based upon the
25 foregoing facts and others, Petitioner is informed and believes, and thereon alleges, that from at least
26 2008, and thereafter, Harold was suffering from diminished mental capacity due to mental illness,
27 and/or as a result of drugs prescribed to him to address his mental illness. These factors, combined
28 with his advanced age, rendered him particularly vulnerable to deceptive actions and representations
PETITION
Page 7 of 12
1 of his son James Kutler. James Kutler was clearly aware of Harold's precarious cognitive functioning,
2 as he served as Harold's live-in caretaker since at least 2008. James reasonably should have known
3 that his father lacked the mental capacity to understand the changes set forth in the Third and Fourth
4 Amendments and the Second Codicil, and that Harold was vulnerable to undue influence at the time
5 that he signed the Third and Fourth Amendments and his Second Codicil.
6 30. Welfare and Institutions Code Section 15610.70(a)(1) identifies various evidence
7 indicating apparent authority of the influencer: "Status as a fiduciary, family member, care provider,
8 healthcare professional, legal professional, spiritual advisor, expert, or other qualification." As
9 Harold's son and caretaker, James wielded considerable influence over Harold.
10 31. Welfare and Institutions Code Section 15610.70(a)(3) states that "The actions or
11 tactics used by the influencer shall be considered in determining undue influence, evidenced by "(a)
12 Controlling necessaries of life, medication, the victim's interactions with others, access to
13 information, or sleep; (b) Use of affection, intimidation, or coercion; (c) Initiation of changes in
14 personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at
15 inappropriate times and places, and claims of expertise in effecting changes." On at least one
16 occasion, James initiated changes to Harold and Kathleen's estate plan at an inappropriate time and
17 place — as set forth herein, when he appeared unannounced at Kathleen's hospital room in 2010, in
18 order to procure his and her execution of the Third Amendment. Despite the fact that Kathleen was
19 unable to comprehend the nature of the documents, James still obtained her signature. Petitioner is
20 informed and believes, and thereon alleges, that James employed similar actions and tactics to procure
21 the execution of the Fourth Amendment and the Second Codicil.
22 32. Welfare and Institutions Code Section 15610.70(a)(4) concludes that undue influence
23 may be reflected in the equity of the challenged result, evidence of which may include "the economic
24 consequences to the victim, any divergence from the victim's prior intent or course of conduct or
25 dealing, the relationship of the value conveyed to the value of any services or consideration received,
26 or the appropriateness of the change in light of the length and nature of the relationship." As stated
27 herein, the Third and Fourth Amendments reduced Petitioner's interest in the Trust from a 113rd share
28 of the trust estate, to a 119 th share of the trust estate. Further, the Second Amendment changed the
PETITION
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1 nature of the bequest to Brother Benno Charitable Foundation from a favorable lease arrangement for
2 their facility (owned by the Trust), to an outright distribution of that property. This deviation from
3 Harold and Kathleen's prior statements of testamentary intent, as set forth in the 1995 restatement of
4 trust (Exhibit A), is striking.
5 33. Petitioner is informed and believes, and thereon alleges, that the actions and omissions
6 set forth above demonstrate James Kutler's undue influence over Harold Kutler, resulting in the
7 execution of the Third and Fourth Amendments and the Second Codicil. This, coupled with
8 Kathleen's lack of mental capacity to understand the Third Amendment, requires that the Third and
9 Fourth Amendments and the Second Codicil be determined invalid.
10 V.
11 NOTICE
12 34. The individuals/entities entitled to notice in this matter are as follows:
13 James P. Kutler Successor Trustee/Beneficiary
1200 Harbor Drive North, Apt. 8D
14 Oceanside, CA 92054
15
Office of the Attorney General Attorney General
16 California Attorney General
1300 `I" Street
17 Sacramento, CA 95814
18
Steven S. Allcema, Esq. Attorney for Successor Trustee
19 380 South Melrose Drive, Suite 404
Vista, CA 92081
20
21 Kevin M. Kutler Beneficiary
P.O. Box 261
22 Oceanside, CA 92049
23
Cayley A. Kutler