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‘| individual capacity; and DOES 1 - 10,
. served and filed herewith), and despite having not joined the Trustee as a party, even though she admits
FILED
AUDREY J. GERARD, ESQ., (SBN 209959) ee
CONNER,LAWRENCE,RODNEY : W019 SEP 12 py 4 3g
OLHISER & BARRETT LLP : ROSA:
829 Sonoma Avenue OSA:JUNQUEIRO, clern &
Santa Rosa, CA 95404
Telephone: oR 523-0480 - a A Se
Facsimile: (707) 523-2937 Poty
Attomeys for Defendant
FRANK ZIMMERMANN
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN
DORIS BERGMAN,
) _No.: STK-CV-UNPI-2019-0001084
Plaintiff OPPOSITION TO MOTION FOR
APPOINTMENT OF RECEIVER:
" See
FRANK ZIMMERMANN, in his FILE BY FAX
Date: September 25, 2019
Time: 9:00 a.m.
Defendants. Dept: 10C
INTRODUCTION
- Plaintiff Doris Bergman (hereinafter “Plaintiff? or “Ms, Bergman”) here séecks an Order
appointing a receiver or referee to conduct the sale of a property in which she has not even established
a present ownership interest. She does so despite the Petition pending in the Probate Department of
this Court to determine whether her mother’s Trust owns all or only part of the property (see Request
for Judicial Notice of San Joaquin County Superior Court case number STK-PR-TR-2019-000491
both in this Motion and in her First Amended Complaint that the Trust is a one-third owner of the
property. The pleadings are not yet settled in this case, and it is clearly premature to appoint a receiver
or referee to sell the property at this stage if for no other reason that there has not even been an order
for partition by sale.
In seeking the immediate sale of the property, Plaintiff ignores the significantly onerous tax
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consequences to her and the other Trust beneficiary if the property is treated as though Mrs.
Zimmermann conveyed a present interest to her children in 1993, rather than, as Defendant contends,
having provided for them to inherit the property as beneficiaries of her Revocable Living Trust, The
“certificate” on which Plaintiff predicates her claim of ownership is not “clear” as Plaintiff avers - it is
not even signed by Mrs. Zimmermann, and other than the ambiguous description of the “owners” that
was apparently typed on the certificate by an unknown lay person, there is absolutely no evidence that
Irmengard Zimmermann intended to or did convey a present ownership to Ms. Bergman in 1993. :
__ TfMs. Bergman is allowed to compel asale of the property at this time, outside of the Trust, the
owners of the two-thirds interest in the property - the Trust and Frank Zimmermann - will suffer
significant damages, including an unnecessary tax burden of approximately 30-percent on the increase
in the value of the property from 1993 to the present by Frank Zimmermann and unnecessary fees of a
receiver or referee, , . :
Contrary to Plaintiff's assertions in the Motion, Defendant Frank Zimmermann did not
“renege” on an agreement to Sell the property. When he agreed that the property would be sold, he
understood that Plaintiff agreed that it would be sold as an asset of the Trust and the proceeds
distributed pursuant to the Trust. When he learned that Plaintiff expected to treat the sale otherwise,
and her counsel accused him of “tax fraud” in treating the property as a trust asset, he refused to move
forward without either an agreement that the property is properly treated as a Trust asset, or a judicial
determination whether it is or isn’t. Defendant’s counsel confirmed this proposal in a letter sent to Ms. |
Bergman’s counsel on June 3, 2019.
Given the tax ramifications of the determination of ownership, it is inexplicable that Plaintiff is
unwilling to agree that the property be properly treated and sold as a Trust assct. It appears that
Plaintiff’s rancor toward her brother, the Trustee and her equal co-beneficiary, is Plaintiff's preeminent
consideration, and that cannot justify the appointment of a receiver or referee and a forced sale. Itisin |
everyone’s financial best interest to wait to do anything with regard to selling the property until the
Probate Court makes a determination as to whether the property is a Trust asset.
Mt
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RELE FACTS
On July 30, 2012 IRMENGARD ZIMMERMANN (sometimes referred to as .
“Decedent”) executed the IRMENGARD ZIMMERMANN: 2012 TRUST. The real property
subject to this motion is specifically identified as being held by the settlor in trust. Defendant
Frank Zimmermann (sometimes hereinafter referred to as “the Trustee” or “Defendant”) is
designated as the Successor Trustee of the Trust.
Prior to her execution of the Trust instrument described above, which was prepared by
the Decedent’s attorney, Ronald Leachman, Mrs.Zimmermann had executed at least one
previous Trust instrument designating the subject real property as being held in Trust.
Defendant is also designated the Successor Trustee in the September 19, 2008 instrument
Defendant is also informed and believes that Decedent executed an “Intervivos Trust” in 1993
that also included the above-referenced real property as a Trust asset.
Ina series of unfortunate events commencing on or about May 1, 2015, Decedent’s
daughter, Plaintiff Doris Bergman, took Decedent to at least two attorneys to have revisions
done to the 2012 Trust, the effect of which was to replace Defendant with Plaintiff and a
private fiduciary chosen by Plaintiff as the Successor Trustee and Agent under Powers of
Attorney for healthcare and finances, and then to replace Plaintiff and her chosen private
fiduciary with the Institute on Aging and their Director of Fiduciary Services as Trustee. In /
each of the above-referenced Trust instruments, Mrs. Zimmermann identified the real property
at issue as an asset of the Trust. , ,
Defendant asserts that at the time the 2015 changes to Mrs. Zimmermann’s estate plans
were made, those amendments and designations were all the product of the undue influence
and other wrongful conduct by Ms. Bergman, and that Decedent’s capacity was significantly
impaired, as confirmed by two of her treating physicians. On September 2, 2015, with the - -
assistance of the Decedent’s private counsel and pursuant to the agreement of the Institute on
Aging and their Director of Fiduciary Services, who was the then-acting Trustee, Irmengard
again appointed and confirmed Defendant as the Successor Trustee. While Defendant does not
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believe the two amendments and restatements purportedly signed by the Decedent in that four
month period are valid, it really does not make a practical difference now: Plaintiff and
Defendant are the remainder beneficiaries under all versions of the Trust, and Defendant is the
duly acting Trustee pursuant to both the original Trust and the final amendment. All of the
parties signed a comprehensive settlement agreement, with a Civil Code section 1542 waiver,
in the early Spring of 2017. Ms. Bergman is clearly violating that settlement by initiating this
action. . : .
What is significant about those amendments is that in each one Irmengard - and her
various lawyers chosen by Plaintiff - identifies the real property at issue here as an asset of her
Trust. Plaintiff never made a contribution to the purchase price or expenses incident to
ownership of the property, nor did she assert any ownership interest in the property until her _
| mother became so cognitively, impaired that she could no longer respond to inquiries
concerning her intentions with regard to the unsigned, ambiguous ownership certificate. It was
only after Mrs.- Zimmermann moved from her home to an elder care facility near her son that
Plaintiff, with no notice, had the locks changed and moved in to the property. She refused to
provide any access, or even a key, to Defendant, who is the undisputed Trustee and the duly
appointed Agent under their mother’s Power of Attorney.
, As noted below, there is no evidence to support Plaintiff's claim of a present ownership interest
in the property such that she can or should force a sale at this time. The unsigned, ambiguous :
“ownership certificate” simply is not sufficient to establish that Mrs. Zimmermann conveyed a present
interest to her children when it was “issued” in 1993, Her subsequent actions in holding out the
property as her own and identifying it as an asset of the operative Trust readily establishes a contrary
intent and understanding as to the ownership of the property. :
LEGAL ARGUME!
1. Plaintiff Has Failed To Join A Necessary Party.
It is well settled law that when a Trust’s interests are at stake in litigation, the Trustee must be
named, not the Trust or its beneficiaries. Portico Management Group v. Harrison (2011) 202 Cal.App.
4 ’
OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER4th 464, Here, Plaintiff admits that the Irmengard Zimmermann 2012 Trust owns a one-third interest
in the property, yet she has. failed to join Frank Zimmerann, in his capacity as a Trustee, as a party to
the action. In fact, she specifically indicates that she is suing Frank Zimmermann in his “individual”
capacity.
California Code of Civil Procedure section 872.510 requires the plaintiff to join as defendants
“all persons having or claiming interests of record or actually known to the plaintiff or reasonably
apparent from an inspection of the property, in the estate as to which partition is sought.” In her
motion Plaintiff admits that the Trust holds a one-third ownership interest in the property, and the
Trustee has filed a Probate Code section 850 Petition to establish that the Trust owns the 100% interest
in the subject property (see accompanying Request for Judicial Notice). It is clear that the Plaintiff has
not complied with this Statute, and it is therefore clearly premature to order the partition of the property
or the appointment of a receiver or referee to sell the property.
California Code of Civil Procedure sections 872.520 and 872.530 also address proper and
necessary parties to a partition action, as follows:
§ 872.520, Where defendant is unknown or interest uncertain(a) If the name of a person
described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the
complaint and shall name as parties all persons unknown in the manner provided in Section
872.550.(b) If the ownership or the share or quantity of the interest of a person described in
Section 872.510 is unknown, uncertain, or contingent, the plaintiff shall so state in the
complaint, If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an
unborn or unascertained person or class member, or by a transfer in the form of a contingent
remainder, vested remainder subject to defeasance, executory interest, or similar disposition,
the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age,
and legal disability (if any) of the person in being who would be entitled to ownership of the
interest had the contingency upon which the right of such person depends occurred prior to the
commencement of the action.(c) The court shall upon its own motion or upon motion of any
party make such orders for joinder of additional parties and for appointment of guardians ad
em Pursuant to Sections 372, 373, and 373.5 as are necessary or proper.Cal Code Civ Proc §
72.5: .
§ 872.530. Where defendant is deceased(a) If a person described in Section 872.510 is dead and
the plaintiff knows of a personal representative, the plaintiff shall join such personal
representative as a defendant.(b) If a person described in Section 872.510 is dead, or is believed
by the plaintiff to be dead, and the plaintiff knows of no personal representative:(1) The
plaintiff shall state these facts in an affidavit filed with the complaint.(2) Where it is stated in
the affidavit that such person is dead, the plaintiff may join as defendants “the testate and
intestate successors of (naming such deceased person), deceased, and all persons claiming by,
through, or under said decedent,” naming them in that manner.(3) Where it is stated in the
affidavit that such person is believed to be dead, the plaintiff may join such person as a
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defendant, and he may also join “the testate and intestate successors of (naming such person)
believed to be deceased, and all persons claiming by, through, or under such person,” naming
them in that manner. Cal Code Civ Proc § 872.530
The above-referenced statutes require Plaintiff to join all those holding an ownership interest
or a claim to ownership, and it is clear that she has failed to join one such owner: tthe Trustee. While
her counsel has mentioned that he is named as a Defendant and therefore this oversight is insignificant,
Plaintiff has specified as a Defendant only in his individual capacity, and that is clearly insufficient
when she seeks to force the sale of the Trust’s interest in the property.
2. Plaintiffs Interest In the Property is Neither Established Nor At Risk.
“The power of a court to appoint a receiver is a delicate one, and is to be exercised with caution
lest injury be done to the parties and their properties. (citations) The remedy is an extraordinary and
harsh one, to be allowed cautiously and only where less onerous remedies would be inadequate or
unavailable.” Cohen v. Herbert (1960) 186 Cal. App. 2d 488, 495.
California Code of Civil Procedure section 564(b) provides:
”A receiver may be appointed by the court in which an action or proceeding is pending, or by a
judge thereof, in the following cases:
(1) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to
subject any property or fund to the creditor's claim, or between.partners or others jointly
owning or interested in any property or furid, on the application of the plaintiff, or of any party
whose right to or interest in the property or fund, or the proceeds thereof, is probable, and
where it is shown that the property or fund is in danger of being lost, removed, or materially
injured, \d., emphasis added.
laintiff's Right or Interest In the as is Not Probable.
Plaintiff's assertion that her ownership interest in the subject property is “clear” is erroneous.
The ownership certificate is, at best, ambiguous, and as mentioned above there is currently an action.
pending in the Probate Court to determine whether Plaintiff does have a current ownership interest in
the property.
It cannot be reasonably disputed that the real property at issue was purchased by Irmengard
Zimmermann and her late husband, and that Plaintiff made no contribution toward the purchase price.
There is no evidence that Irmengard Zimmermann intended to or did convey to Plaintiff. present
interest in the real property at issue when the ownership certificate was issued in 1993. The certificate
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is not signed by Mrs. Zimmermann, instead it is signed by the Secretary and President of the co-op,
who Defendant is informed and believes were untrained lay people, fellow owners of units at the
property. There is no evidence that Inrmengard’ Zimmermann, whose first language was German, not
English, reviewed the certificate or realized that it might be ambiguous. Plaintiff also did not
contribute to the costs of ownership of the property, including property taxes, insurance, maintenance,
or improvements, nor did she reside in the property, If she were to have any present interest in the
property, it could only have come’ by way of gift, and Irmengard Zimmermann did not file an IRS form
709 Gift Tax Return, which clearly would have been required had she conveyed a present ownership
interest of one-third each to her children in 1993; ‘There apears to be no writing signed by Mrs.
Zimmermann conveying a present interest in the property to Plaintiff as would be required by the -
Statute of Frauds.
It is telling that Plaintiff did not assert a present ownership interest in the property until her
mother became so cognitively impaired that she could no longer remain in her home or respond to
inquiries concerning het intentions with regard to the unsigned, ambiguous ownership certificate. It
was only after Mrs. Zimmermann moved from her home to an elder care facility near her son that
Plaintiff, with no notice, had the locks changed and moved in to the property. She refused to provide
any access, or even a key, to Defendant, who is the undisputed Trustee and Agent under their mother’s
Power of Attorney.
B. Plaintiff's Interest In the Property is Not At Risk of Being Lost or Materially Injured,
Defendant Frank Zimmermann is the Trustee of the Iremengard Zimmermann 2012 Trust,
although he is not named as a defendant in his capacity as such. As Trustee, Mr. Zimmermann does
not dispute that Plaintiff is a designated fifty percent beneficiary of the Irmengard Zimmermann 2012
Trust, nor does he dispute that the real property at issue here is an asset of the Trust. Defendant is
highly cognizant of his fiduciary duties as a Trustee, including his duty to take control of and preserve
Trust property (California Probate Code section 16006), and he is acting ina mannet that is best for the
Trust, and it’s beneficiaries, by seeking to establish the Trust’s ownership of the asset and selling it as
such,
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The tax consequences of not doing so are profound: the beneficiaries will pay approximately
thirty percent in combined federal and state capital gains taxes on the difference between the 1993
value of the property and the current value if the property is treated as though their mother conveyed
current interests to them in 1993. In contrast, if Mrs. Zimmermann did not convey a present interest at
that time, and the property was owned wholly by the Trust at the time of her death, the beneficiaries
will receive the step-up in basis to the value of the property on the date of her death, resulting in little
or no taxable gain whatsoever. As Trustee, Frank Zimmermann is appropriately seeking a judicial
determination as to the Trust’s ownership interest in the Probate Division of this Court in order to
préserve, not injure, Plaintiff's interest in the Trust property, together with his own.
‘CONCLUSION
_ Plaintiff has failed to establish that she has a present ownership interest in the property, and that
fact alone precludes the granting of this’ motion. Moreover, she has failed to joint the Trust, which
undisputedly owns at least a one-third interest in the property, as a party to he action as required by
statute. The forced sale of the property at this time, prior to a determination whether it is entirely a -
Trust asset or only partially a Trust asset, will cause significant harm to the Trust beneficiaries,
including the Plaintiff herself. It simply makes no legal or pfactical sense for the property to be
ordered sold by a referee at this time.
The Motion should be denied.
DATED: September _47 , 2019 CONNER, LAWRENCE, RODNEY,
OHLISTER & BARRETT LLP
By:
LLP}
ttorney for
Defendant FRANK ZIMMERMANN
8
OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER,PROOF OF SERVICE
I am over the age of eighteen years 18), employed in Sonoma County and I am
nota Rarty to the within entitled action. business address is 829 Sononia Avenue,
Santa Rosa, CA 95404. On September 12, 2019, 1 served the within:
OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER OR,
IN THE ALTERNATIVE PARTITION REFEREE;
REQUEST FOR JUDICIAL NOTICE
Q (BY FACSIMILE) placing a true copy thereof into a facsimile machine
addressed to the person and address shown below, which transmission receipt is attached |
ereto.
Q (BY EMAIL) scanning and electronically transmitting a true copy thereof via
computer, addressed to the person and email address shown below.
. O (BY PERSONAL SERVICE) delivering by hand and leaving a true copy with
the person at the address shown below. .
XO (BY OVERNIGHT DELIVERY) on the following party(ies) in said action,
by placing. a true copy thereof enclosed in a sealed envelope with delivery fees paid or
rovided for, in a designated area for outgoing overnight mail, addressed as set forth
below. In the ordinary course of business of Tillem, Nichol & Brown, mail placed
in that designated area is picked up that same day for delivery the following business
day. .
QO (BY MAIL) placing a true copy thereof enclosed in a sealed envelope with
posta e thereon fully prepaid in the United States mail at Sonoma, California addressed
as follows:
Thomas F. Cam)
LAW OFFICES OF THOMAS F. CAMP
3297 Mt. Diablo Blvd.
Lafayette, CA 94549
Phone: 510-851-8822
Fax: 925-284-1775
Email: tomeareplaw i emallcom
Attorney for Plainti ERGMAN
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this Declaration was executed at Santa Rosa,
Califoria on September 12, 2019. lje-——
tof
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ole A A HW aw YPN YY PW NN YN Be Be ew Be oe ee Re eB Re eo a AHS YD NHN = F Oe AA WE DH TS ‘| individual capacity; and DOES 1 - 10, . served and filed herewith), and despite having not joined the Trustee as a party, even though she admits FILED AUDREY J. GERARD, ESQ., (SBN 209959) ee CONNER,LAWRENCE,RODNEY : W019 SEP 12 py 4 3g OLHISER & BARRETT LLP : ROSA: 829 Sonoma Avenue OSA:JUNQUEIRO, clern & Santa Rosa, CA 95404 Telephone: oR 523-0480 - a A Se Facsimile: (707) 523-2937 Poty Attomeys for Defendant FRANK ZIMMERMANN SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN JOAQUIN DORIS BERGMAN, ) _No.: STK-CV-UNPI-2019-0001084 Plaintiff OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER: " See FRANK ZIMMERMANN, in his FILE BY FAX Date: September 25, 2019 Time: 9:00 a.m. Defendants. Dept: 10C INTRODUCTION - Plaintiff Doris Bergman (hereinafter “Plaintiff? or “Ms, Bergman”) here séecks an Order appointing a receiver or referee to conduct the sale of a property in which she has not even established a present ownership interest. She does so despite the Petition pending in the Probate Department of this Court to determine whether her mother’s Trust owns all or only part of the property (see Request for Judicial Notice of San Joaquin County Superior Court case number STK-PR-TR-2019-000491 both in this Motion and in her First Amended Complaint that the Trust is a one-third owner of the property. The pleadings are not yet settled in this case, and it is clearly premature to appoint a receiver or referee to sell the property at this stage if for no other reason that there has not even been an order for partition by sale. In seeking the immediate sale of the property, Plaintiff ignores the significantly onerous tax 1 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVERwo momar DH Bw PW = N N NN NY NY YQ ND Ne ek ey A HW SF BN = FGoO wm IA HW BDO PY YH SF consequences to her and the other Trust beneficiary if the property is treated as though Mrs. Zimmermann conveyed a present interest to her children in 1993, rather than, as Defendant contends, having provided for them to inherit the property as beneficiaries of her Revocable Living Trust, The “certificate” on which Plaintiff predicates her claim of ownership is not “clear” as Plaintiff avers - it is not even signed by Mrs. Zimmermann, and other than the ambiguous description of the “owners” that was apparently typed on the certificate by an unknown lay person, there is absolutely no evidence that Irmengard Zimmermann intended to or did convey a present ownership to Ms. Bergman in 1993. : __ TfMs. Bergman is allowed to compel asale of the property at this time, outside of the Trust, the owners of the two-thirds interest in the property - the Trust and Frank Zimmermann - will suffer significant damages, including an unnecessary tax burden of approximately 30-percent on the increase in the value of the property from 1993 to the present by Frank Zimmermann and unnecessary fees of a receiver or referee, , . : Contrary to Plaintiff's assertions in the Motion, Defendant Frank Zimmermann did not “renege” on an agreement to Sell the property. When he agreed that the property would be sold, he understood that Plaintiff agreed that it would be sold as an asset of the Trust and the proceeds distributed pursuant to the Trust. When he learned that Plaintiff expected to treat the sale otherwise, and her counsel accused him of “tax fraud” in treating the property as a trust asset, he refused to move forward without either an agreement that the property is properly treated as a Trust asset, or a judicial determination whether it is or isn’t. Defendant’s counsel confirmed this proposal in a letter sent to Ms. | Bergman’s counsel on June 3, 2019. Given the tax ramifications of the determination of ownership, it is inexplicable that Plaintiff is unwilling to agree that the property be properly treated and sold as a Trust assct. It appears that Plaintiff’s rancor toward her brother, the Trustee and her equal co-beneficiary, is Plaintiff's preeminent consideration, and that cannot justify the appointment of a receiver or referee and a forced sale. Itisin | everyone’s financial best interest to wait to do anything with regard to selling the property until the Probate Court makes a determination as to whether the property is a Trust asset. Mt 2 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVERXI DA WW BF YW WN RELE FACTS On July 30, 2012 IRMENGARD ZIMMERMANN (sometimes referred to as . “Decedent”) executed the IRMENGARD ZIMMERMANN: 2012 TRUST. The real property subject to this motion is specifically identified as being held by the settlor in trust. Defendant Frank Zimmermann (sometimes hereinafter referred to as “the Trustee” or “Defendant”) is designated as the Successor Trustee of the Trust. Prior to her execution of the Trust instrument described above, which was prepared by the Decedent’s attorney, Ronald Leachman, Mrs.Zimmermann had executed at least one previous Trust instrument designating the subject real property as being held in Trust. Defendant is also designated the Successor Trustee in the September 19, 2008 instrument Defendant is also informed and believes that Decedent executed an “Intervivos Trust” in 1993 that also included the above-referenced real property as a Trust asset. Ina series of unfortunate events commencing on or about May 1, 2015, Decedent’s daughter, Plaintiff Doris Bergman, took Decedent to at least two attorneys to have revisions done to the 2012 Trust, the effect of which was to replace Defendant with Plaintiff and a private fiduciary chosen by Plaintiff as the Successor Trustee and Agent under Powers of Attorney for healthcare and finances, and then to replace Plaintiff and her chosen private fiduciary with the Institute on Aging and their Director of Fiduciary Services as Trustee. In / each of the above-referenced Trust instruments, Mrs. Zimmermann identified the real property at issue as an asset of the Trust. , , Defendant asserts that at the time the 2015 changes to Mrs. Zimmermann’s estate plans were made, those amendments and designations were all the product of the undue influence and other wrongful conduct by Ms. Bergman, and that Decedent’s capacity was significantly impaired, as confirmed by two of her treating physicians. On September 2, 2015, with the - - assistance of the Decedent’s private counsel and pursuant to the agreement of the Institute on Aging and their Director of Fiduciary Services, who was the then-acting Trustee, Irmengard again appointed and confirmed Defendant as the Successor Trustee. While Defendant does not 3 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER |wo em DY DH PF ww HY Yb N NY N NY N N ND Ne ee eee e2 YO AA FON FSF De AK AHA BEBONH AS - believe the two amendments and restatements purportedly signed by the Decedent in that four month period are valid, it really does not make a practical difference now: Plaintiff and Defendant are the remainder beneficiaries under all versions of the Trust, and Defendant is the duly acting Trustee pursuant to both the original Trust and the final amendment. All of the parties signed a comprehensive settlement agreement, with a Civil Code section 1542 waiver, in the early Spring of 2017. Ms. Bergman is clearly violating that settlement by initiating this action. . : . What is significant about those amendments is that in each one Irmengard - and her various lawyers chosen by Plaintiff - identifies the real property at issue here as an asset of her Trust. Plaintiff never made a contribution to the purchase price or expenses incident to ownership of the property, nor did she assert any ownership interest in the property until her _ | mother became so cognitively, impaired that she could no longer respond to inquiries concerning her intentions with regard to the unsigned, ambiguous ownership certificate. It was only after Mrs.- Zimmermann moved from her home to an elder care facility near her son that Plaintiff, with no notice, had the locks changed and moved in to the property. She refused to provide any access, or even a key, to Defendant, who is the undisputed Trustee and the duly appointed Agent under their mother’s Power of Attorney. , As noted below, there is no evidence to support Plaintiff's claim of a present ownership interest in the property such that she can or should force a sale at this time. The unsigned, ambiguous : “ownership certificate” simply is not sufficient to establish that Mrs. Zimmermann conveyed a present interest to her children when it was “issued” in 1993, Her subsequent actions in holding out the property as her own and identifying it as an asset of the operative Trust readily establishes a contrary intent and understanding as to the ownership of the property. : LEGAL ARGUME! 1. Plaintiff Has Failed To Join A Necessary Party. It is well settled law that when a Trust’s interests are at stake in litigation, the Trustee must be named, not the Trust or its beneficiaries. Portico Management Group v. Harrison (2011) 202 Cal.App. 4 ’ OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER4th 464, Here, Plaintiff admits that the Irmengard Zimmermann 2012 Trust owns a one-third interest in the property, yet she has. failed to join Frank Zimmerann, in his capacity as a Trustee, as a party to the action. In fact, she specifically indicates that she is suing Frank Zimmermann in his “individual” capacity. California Code of Civil Procedure section 872.510 requires the plaintiff to join as defendants “all persons having or claiming interests of record or actually known to the plaintiff or reasonably apparent from an inspection of the property, in the estate as to which partition is sought.” In her motion Plaintiff admits that the Trust holds a one-third ownership interest in the property, and the Trustee has filed a Probate Code section 850 Petition to establish that the Trust owns the 100% interest in the subject property (see accompanying Request for Judicial Notice). It is clear that the Plaintiff has not complied with this Statute, and it is therefore clearly premature to order the partition of the property or the appointment of a receiver or referee to sell the property. California Code of Civil Procedure sections 872.520 and 872.530 also address proper and necessary parties to a partition action, as follows: § 872.520, Where defendant is unknown or interest uncertain(a) If the name of a person described in Section 872.510 is not known to the plaintiff, the plaintiff shall so state in the complaint and shall name as parties all persons unknown in the manner provided in Section 872.550.(b) If the ownership or the share or quantity of the interest of a person described in Section 872.510 is unknown, uncertain, or contingent, the plaintiff shall so state in the complaint, If the lack of knowledge, uncertainty, or contingency is caused by a transfer to an unborn or unascertained person or class member, or by a transfer in the form of a contingent remainder, vested remainder subject to defeasance, executory interest, or similar disposition, the plaintiff shall also state in the complaint, so far as is known to the plaintiff, the name, age, and legal disability (if any) of the person in being who would be entitled to ownership of the interest had the contingency upon which the right of such person depends occurred prior to the commencement of the action.(c) The court shall upon its own motion or upon motion of any party make such orders for joinder of additional parties and for appointment of guardians ad em Pursuant to Sections 372, 373, and 373.5 as are necessary or proper.Cal Code Civ Proc § 72.5: . § 872.530. Where defendant is deceased(a) If a person described in Section 872.510 is dead and the plaintiff knows of a personal representative, the plaintiff shall join such personal representative as a defendant.(b) If a person described in Section 872.510 is dead, or is believed by the plaintiff to be dead, and the plaintiff knows of no personal representative:(1) The plaintiff shall state these facts in an affidavit filed with the complaint.(2) Where it is stated in the affidavit that such person is dead, the plaintiff may join as defendants “the testate and intestate successors of (naming such deceased person), deceased, and all persons claiming by, through, or under said decedent,” naming them in that manner.(3) Where it is stated in the affidavit that such person is believed to be dead, the plaintiff may join such person as a 5 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVERoOo YN DH BF YW HY Soe Be we Be eB es I.A DRE DH KH SS 18 19 | 20 21 22 23 24 25 26 27} 28 ||. defendant, and he may also join “the testate and intestate successors of (naming such person) believed to be deceased, and all persons claiming by, through, or under such person,” naming them in that manner. Cal Code Civ Proc § 872.530 The above-referenced statutes require Plaintiff to join all those holding an ownership interest or a claim to ownership, and it is clear that she has failed to join one such owner: tthe Trustee. While her counsel has mentioned that he is named as a Defendant and therefore this oversight is insignificant, Plaintiff has specified as a Defendant only in his individual capacity, and that is clearly insufficient when she seeks to force the sale of the Trust’s interest in the property. 2. Plaintiffs Interest In the Property is Neither Established Nor At Risk. “The power of a court to appoint a receiver is a delicate one, and is to be exercised with caution lest injury be done to the parties and their properties. (citations) The remedy is an extraordinary and harsh one, to be allowed cautiously and only where less onerous remedies would be inadequate or unavailable.” Cohen v. Herbert (1960) 186 Cal. App. 2d 488, 495. California Code of Civil Procedure section 564(b) provides: ”A receiver may be appointed by the court in which an action or proceeding is pending, or by a judge thereof, in the following cases: (1) In an action by a vendor to vacate a fraudulent purchase of property, or by a creditor to subject any property or fund to the creditor's claim, or between.partners or others jointly owning or interested in any property or furid, on the application of the plaintiff, or of any party whose right to or interest in the property or fund, or the proceeds thereof, is probable, and where it is shown that the property or fund is in danger of being lost, removed, or materially injured, \d., emphasis added. laintiff's Right or Interest In the as is Not Probable. Plaintiff's assertion that her ownership interest in the subject property is “clear” is erroneous. The ownership certificate is, at best, ambiguous, and as mentioned above there is currently an action. pending in the Probate Court to determine whether Plaintiff does have a current ownership interest in the property. It cannot be reasonably disputed that the real property at issue was purchased by Irmengard Zimmermann and her late husband, and that Plaintiff made no contribution toward the purchase price. There is no evidence that Irmengard Zimmermann intended to or did convey to Plaintiff. present interest in the real property at issue when the ownership certificate was issued in 1993. The certificate 6 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVERoe YN KA HW BF WwW DY YN NM N NN KN ND RD mm me ea ea a eo IA A BY NH | SF CHO AA HD RDP BS is not signed by Mrs. Zimmermann, instead it is signed by the Secretary and President of the co-op, who Defendant is informed and believes were untrained lay people, fellow owners of units at the property. There is no evidence that Inrmengard’ Zimmermann, whose first language was German, not English, reviewed the certificate or realized that it might be ambiguous. Plaintiff also did not contribute to the costs of ownership of the property, including property taxes, insurance, maintenance, or improvements, nor did she reside in the property, If she were to have any present interest in the property, it could only have come’ by way of gift, and Irmengard Zimmermann did not file an IRS form 709 Gift Tax Return, which clearly would have been required had she conveyed a present ownership interest of one-third each to her children in 1993; ‘There apears to be no writing signed by Mrs. Zimmermann conveying a present interest in the property to Plaintiff as would be required by the - Statute of Frauds. It is telling that Plaintiff did not assert a present ownership interest in the property until her mother became so cognitively impaired that she could no longer remain in her home or respond to inquiries concerning het intentions with regard to the unsigned, ambiguous ownership certificate. It was only after Mrs. Zimmermann moved from her home to an elder care facility near her son that Plaintiff, with no notice, had the locks changed and moved in to the property. She refused to provide any access, or even a key, to Defendant, who is the undisputed Trustee and Agent under their mother’s Power of Attorney. B. Plaintiff's Interest In the Property is Not At Risk of Being Lost or Materially Injured, Defendant Frank Zimmermann is the Trustee of the Iremengard Zimmermann 2012 Trust, although he is not named as a defendant in his capacity as such. As Trustee, Mr. Zimmermann does not dispute that Plaintiff is a designated fifty percent beneficiary of the Irmengard Zimmermann 2012 Trust, nor does he dispute that the real property at issue here is an asset of the Trust. Defendant is highly cognizant of his fiduciary duties as a Trustee, including his duty to take control of and preserve Trust property (California Probate Code section 16006), and he is acting ina mannet that is best for the Trust, and it’s beneficiaries, by seeking to establish the Trust’s ownership of the asset and selling it as such, 7 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVERDo Oo NIN DH WH RB Ww NY NHN N NHN NM NY NY DB NN a ie eA A FF ob HS HF SBD we IA A FB NY | SG: The tax consequences of not doing so are profound: the beneficiaries will pay approximately thirty percent in combined federal and state capital gains taxes on the difference between the 1993 value of the property and the current value if the property is treated as though their mother conveyed current interests to them in 1993. In contrast, if Mrs. Zimmermann did not convey a present interest at that time, and the property was owned wholly by the Trust at the time of her death, the beneficiaries will receive the step-up in basis to the value of the property on the date of her death, resulting in little or no taxable gain whatsoever. As Trustee, Frank Zimmermann is appropriately seeking a judicial determination as to the Trust’s ownership interest in the Probate Division of this Court in order to préserve, not injure, Plaintiff's interest in the Trust property, together with his own. ‘CONCLUSION _ Plaintiff has failed to establish that she has a present ownership interest in the property, and that fact alone precludes the granting of this’ motion. Moreover, she has failed to joint the Trust, which undisputedly owns at least a one-third interest in the property, as a party to he action as required by statute. The forced sale of the property at this time, prior to a determination whether it is entirely a - Trust asset or only partially a Trust asset, will cause significant harm to the Trust beneficiaries, including the Plaintiff herself. It simply makes no legal or pfactical sense for the property to be ordered sold by a referee at this time. The Motion should be denied. DATED: September _47 , 2019 CONNER, LAWRENCE, RODNEY, OHLISTER & BARRETT LLP By: LLP} ttorney for Defendant FRANK ZIMMERMANN 8 OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER,PROOF OF SERVICE I am over the age of eighteen years 18), employed in Sonoma County and I am nota Rarty to the within entitled action. business address is 829 Sononia Avenue, Santa Rosa, CA 95404. On September 12, 2019, 1 served the within: OPPOSITION TO MOTION FOR APPOINTMENT OF RECEIVER OR, IN THE ALTERNATIVE PARTITION REFEREE; REQUEST FOR JUDICIAL NOTICE Q (BY FACSIMILE) placing a true copy thereof into a facsimile machine addressed to the person and address shown below, which transmission receipt is attached | ereto. Q (BY EMAIL) scanning and electronically transmitting a true copy thereof via computer, addressed to the person and email address shown below. . O (BY PERSONAL SERVICE) delivering by hand and leaving a true copy with the person at the address shown below. . XO (BY OVERNIGHT DELIVERY) on the following party(ies) in said action, by placing. a true copy thereof enclosed in a sealed envelope with delivery fees paid or rovided for, in a designated area for outgoing overnight mail, addressed as set forth below. In the ordinary course of business of Tillem, Nichol & Brown, mail placed in that designated area is picked up that same day for delivery the following business day. . QO (BY MAIL) placing a true copy thereof enclosed in a sealed envelope with posta e thereon fully prepaid in the United States mail at Sonoma, California addressed as follows: Thomas F. Cam) LAW OFFICES OF THOMAS F. CAMP 3297 Mt. Diablo Blvd. Lafayette, CA 94549 Phone: 510-851-8822 Fax: 925-284-1775 Email: tomeareplaw i emallcom Attorney for Plainti ERGMAN I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed at Santa Rosa, Califoria on September 12, 2019. lje-—— tof