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  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • CAYLEY KUTLER VS. PATRICIA BROTMAN ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
						
                                

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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 12 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 -1- 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 -2- 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 -3- 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. -4- 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 18 19 20 21 22 23 24 25 26 27 28 -5- 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. 25 26 Kendal E. Fletcher 27 28 -6- 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 .c,?. t-. 9 12 to bring this action. - a; , 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 Page 8 of 12 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