Motion,Ex Parte: IN RE: MARILYN SILVERMAN-BALLONOFF REVOCABLE TRUST

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                Coe ND nH FF YW NY

RNNYN YN NNN eee Be eB eB eB Be ew
oN ADA UW FB Ww NHK OD OBO ens DUH F&F WN KF S&S

Selene Ballonoff

2230 Dwight Way, Apt.308
Berkeley, CA 94704
Telephone: 510-549-3709

Pro Per

Petitioner/Objector

San Francisco County Superior Court

SEP 2 42020

CLERK OF BF COURT
BY:

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

IN RE: THE MARILYN SILVERMAN-
BALLONOFF REVOCABLE TRUST

Notice of this ex parte and its prayer was provided to Sheila Robello and

Charles Jonas by email at srobello@solanpark.com and charles@charlesjonas.com at 9:57 a.m.

CASE NO. PTR-17-301171

SELENE BALLONOFF'S EX
PARTE APPLICATION FOR
ORDER CONTINUING TRIAL
DATE AND PRE-TRIAL
DEADLINES

September 24, 2020
Department 206 at 11:00 a.m.
The Honorable Garrett L. Wong

On September 23, 2020.

Selene Ballonoff makes this Ex Parte application for a continuance of the
September 28 trial dates and pre-trial deadlines that pertain to her for the First Trust Account,

Third Conservatorship Account and Petition to Limit Authority of six months in order to

propound discovery and prepare for trial because:

Selene Ballonoff's Ex Parte Application for Continuance of Trial Date Page 1 of 10wom NIN DH FF WN

1. The very week after the Trial date was set, Selene Ballonoff discovered her mother had
COVID and Mr. Lucas had signed a Do Not Resuscitate order and enrolled her mother in
Hospice in violation of her mother's Advance Health Care Directive (AHCD) and Probate Code
2355. It took Selene over six weeks to get the Do Not Resuscitate Order changed to an Attempt
Resuscitation order and recover from working around the clock and the extreme stress of
witnessing over Zoom her non-responsive mother being left to die by nursing home staff at the
direction of Mr. Lucas.

2. Mr. Lucas filed and persisted with a frivolous petition asking the Court for authority to sign a
Do Not Resuscitate Order he had no reasonable expectation of winning. Because Mr. Lucas's
petition was heard on short notice, and because Selene Ballonoff's request for discovery on short
notice was denied, Selene Ballonoff had no way of knowing just how lacking Mr. Lucas's
evidence and argument were until the actual hearing, at which point she had already exhausted
herself with legal work in an attempt to protect her mother's life.

3. Discovery has been attempted but Mr. Lucas's abuse of the discovery process and
withholding of essential documents prevent the matters from being resolved on the basis of their
merits on September 28.

4. A Civil Complaint related to the same facts as the Petition to Limit Authority, Third
Conservatorship Account and First Trust Account is pending and Selene Ballonoff has provided
the First Amended Complaint and a letter of instructions for service of process to the San
Francisco Sherriff. Equity, Comity and Judicial Economy require a continuance.

5. The Americans with Disabilities Act obligates the Court to continue the matter in order to
protect the rights and interests of the Trustor who is disabled within the meaning of the law.

6. Yom Kippur (which is a fasting holiday) is the day of the trial-- September 28. The weather
prediction os 96 degrees Fahrenheit and Shelter in Place means most heat escapes are closed.

These reasons are explained in greater detail below.

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 2 of 10Com IN A WwW BF WN

10

I. Trustors Life Threatened by Trustee One Week After Trial Date Set

Selene's trial preparations were interrupted the week after the trial date was set,
and more than six weeks of her time was monopolized responding to the life or death crisis
occasioned by Mr. Lucas unlawfully ordering the withholding of life-sustaining treatment from
the COVID-afflicted, non-responsive Trustor.

Selene Ballonoff had no way of predicting that the week after the trial date was
set, her mother would contract COVID-19 and be on hospice because Mr. Lucas had signed a
Physician's Orders for Life-Sustaining Treatment (POLST) form with a Do Not Resuscitate
Order (DNR), a prohibition against even a trial of artificial nutrition and prohibition against IV
fluids and IV antibiotics (the cornerstone of conventional medical treatment of sepsis-- the most
common way people die of infection). Mr. Lucas signed the DNR way back in March but
waited until the Trustor's life was threatened to seek Court approval for the DNR. The DNR
violated Probate Code 2355 as the Trustor's Advance Health Care Directive (AHCD) indicated:
"Choice to Prolong Life."

For weeks, all of Selene's resources went into providing copies of her mother's
notarized Advance Health Care Directive to her mother's Skilled Nursing Facility (SNF) and
Hospice and attempting to persuade the staff that a POLST form that defies the known wishes of
a patient exposes anyone who follows the defiant POLST to criminal and civil prosecution.
Selene got nothing but runaround from hospice. The SNF staff said they would follow the
POLST even though it was inconsistent with Marilyn's notarized Advance Health Care
Directive. And they did. Window visits were forbidden on the COVID ward where Selene's
mother was moved to. During one Zoom visit, the SNF Director of Social Services sitting next
to Marilyn's bed made no attempt to get help for Marilyn who was non-responsive. Instead he

repeatedly told Selene: "The great thing about being an elder is you get to take a nap whenever

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 3 of 10Cm NY DAH BF WY

NN YN NY N NNN SB Be ee ee ew we ee
oN AA BR HoNH KF SO we DH BW NS SS

you want." This was no nap. Marilyn was not responding even to her name being called and her
shoulder being shaken.

When non-court strategies failed, Selene put all of her resources into filing an
opposition and an alternative proposed order for the Conservator's Ex Parte hearing to
ShortenTime; drafting an Emergency Protective Order and a request for permission to file it and
then filing a Request for Accommodation of Disability on behalf of her mother asking that the
DNR be suspended pending resolution of the Petition. None of these strategies succeeded. It
was not until August 6, 2020 that Selene Ballonoff was able to retain an attorney for limited
scope representation. Once represented by counsel Selene did more legal work than she had on
her own. Her limited scope attorney asked her to scan and send numerous pleadings, write and
edit multiple documents, and ultimately to assist him in preparing for evidentiary hearing as
there was no way to know who or what Mr. Lucas would produce at the short-notice hearing on

which Selene Ballonoff's mother's life depended.

IL. Trustee Persisted with Frivolous Petition in Bad Faith

Mr. Lucas signed an unlawful DNR on behalf of Marilyn in 2017 which came
to light in 2018 when the Trustor nearly died of complications of Depakote and Seroquel
overdose. At that time Mr. Lucas and his counsel were fully notified of the Trustor's AHCD,
Probate Code 2355 and Conservatorship of Wendland 26 Cal.4th 519, 547 | 28 P.3d 151 | 110
Cal. Rptr. 2d 412 | 2001 Cal. LEXIS 4948 | 2001 Daily Journal DAR 8425 | 2001 Cal. Daily Op.
Service 6867 which requires clear and convincing evidence that a Conservatee would have
wanted life-sustaining treatment withheld in order to withhold life-sustaining treatment from a
conscious conservatee. Wendland is the only caselaw relevant to California conservatees who

are not comatose or in a persistent vegetative state.

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 4 of 10om NY DHA FF WY

RN NN WN Bee Se Be Re ee ee
RBNRRERRRBBRBSGeFWIRADPEBHReS

On July 31, 2020, The Honorable Ross Moody issued an Order to Show Cause
for Mr. Lucas to show how the Do Not Resuscitate Order was consistent with Probate Code
2355 in light of Trustor's AHCD in which she indicated "Choice to Prolong Life." At the
hearing, The Honorable Ross Moody repeated his Order to Show Cause regarding Probate Code
2355: "Will you address Probate Code Section 2355. You saw that I issued an Order to Show
Cause in this case, because I didn't believe that the actions taken were replacing the April 2018
POLST with the one for March of this year. I didn't see how that was consistent with 2355."
(Reporter's Transcript Page 6 lines 17-22). Despite having had two full weeks of notice of the
Order to Show Cause as to Probate Code 2355, Ms. Callejo's only response was: "Let me look
through my notes, Your Honor. If you could give me a few minutes, Your Honor. Perhaps you
might wish to hear from court-appointed counsel while I review my notes on that." (Transcript

Page 6 Line 23 to Page 7 Line 2).

Il. Comity, Equity, Judicial Economy and Resolution on the Merits Require Continuance

The Probate Court has not reined in Mr. Lucas's abuse of the discovery process.
Exhibit A is the one and only (statutorily deficient) privilege log Mr. Lucas provided only after
a motion to compel was filed. Because of Mr. Lucas's abuse of the discovery process, Selene
Ballonoff will need to get the documents necessary to prove her objections and substantiate her
petition in the Civil Complaint filed in San Francisco Superior Court which alleges many
matters identical to those alleged in Selene Ballonoff's Petition to Limit Authority of
Conservator and her objections to the Third Conservatorship Account and First Trust Account
(which are all being heard together as they involve many of the same issues). (See Exhibit B,
Selene's Instructions for Service Provided to the San Francisco Sheriff)

The Trustor will pay for the cost of discovery in the civil case no matter what.

The question is: will the Trustor benefit from the discovery once (in the civil case) or multiple

Selene Ballonoff's Ex Parte Application for Continuance of Trial Date Page 5 of 10wo oN DW FF WN

RYN YN YN NN YN SF Bee Be ee eB Be eB
orXQ an KR oBNH fF SO MARI AA BF wBHNH FE SO

times (in the Petition to Limit Authority, the First Trust Account and Third Conservatorship
Account)?

If proven, Objector’s well-founded allegations against Mr. Lucas constitute
Breach of Fiduciary Duty, Negligence and Financial Elder Abuse as well as Physical Elder
Abuse and Neglect according to Knox v. Dean 205 Cal. App. 4th 417 | 140 Cal. Rptr. 3d 569 |
2012 Cal. App. LEXIS 468. In Knox, the probate accounting was stayed for five years until the
civil litigation was finalized.

Estate of Nazro (1971) 15 Cal.App.3d 218, 93 Cal. Rptr. 116 is cited directly in
the San Francisco Superior Court’s Local Rule 14.81 for “Compensation of Trustees, Guardians
and Conservators.” The criteria given in Estate of Nazro are the backbone of the criteria for
Compensation of Conservators and Guardians in California Rules of Court 7.756(a). Both the
Local Rules and California Rules of Court list “skill” as a criterion for compensation of
conservators. The Local Rules also list “fidelity or disloyalty,” and CRC also lists “the benefit
to the conservatee.. or her estate, of the conservator’s... services,” and “the necessity for the
services performed” as criteria for compensation of conservators.

Mr. Lucas’s Third Account and Report asks for compensation for himself and
his attorney and implicitly, the ratification of his acts. CEB California Conservatorship Practice
Guide Section 20.2 states: “Compensation for services rendered by the conservator and any
attorney in a conservatorship proceeding or otherwise, is payable only as the court determines
such compensation ‘just and reasonable’ (Probate Code 2623(a)(2), 2640(c), 2641(b).” It would
be neither “just” nor “reasonable” to compensate Mr. Lucas and Ms. Callejo at their usual and
customary rates of pay for acts and failures to act that nearly killed the Conservatee three times
and which, if proven, constitute Elder Financial Abuse, Elder Physical Abuse, Breach of
Fiduciary Duty and Negligence and demonstrate “disloyalty” and/or lack of “skill” on the part

of the Conservator as well as the lack of “benefit” and lack of “necessity for the services

Selene Ballonoff's Ex Parte Application for Continuance of Trial Date Page 6 of 10om NIN DW BF BN

wR RN Re Boe ee eee
RBRRRRBBRBSSCeFWIRATDESHES

performed.” It would be an abuse of discretion to ratify the acts in the Third Account without
allowing discovery on the Third Account to be completed or staying the Third Account until the
Elder Abuse Claim and Petition to Limit Authority are finalized.

California law favors disposing of matters on the basis of their merits-- not
procedural issues. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal. 3d 342, 347 [228 Cal. Rptr.
504, 721 P.2d 590].) If the Accountings and Petition to Limit Authority are decided before the
discovery in the civil case has been completed, the former will be decided based on trickery,
abuse of process and procedural issues.

Comity, Equity and Judicial Economy require the Accountings and Petition to
Limit Authority be stayed while the Civil Complaint is pending.

IV. ADA Obligates the Court to Act Sua Sponte to Protect Trustor's Interests

No amount of procedural default on the part of Selene Ballonoff diminish in
any way the rights of the Trustor to be protected by the Court.

The Americans with Disabilities Act obligates the Court to act sua sponte to
ensure the Trustor has equal protection under the law and equal access to justice. Though there
is considerable dispute about the accuracy of the Trustor's diagnoses and about how treatable
and reversible her condition is, it is undisputed that the Trustor is disabled within the meaning of
state and federal law. A public entity must offer accommodations for known physical or
mental limitations." (Title II Technical Assistance Manual of DOJ). Even without a request, an
entity has an obligation to provide an accommodation when it knows or reasonably should know
that a person has a disability and needs a modification. (DOJ Guidance Memo to Criminal
Justice Agencies, January 2017). Some people (like the Trustor) are not able to make an ADA
accommodation request. A public entity's duty to look into and provide accommodations is
triggered when the need for accommodation is obvious. (Updike v. Multnoma County (9th Cir

2017) 930 F.3d 939). It is the knowledge of a disability and the need for accommodation that

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 7 of 10CON AH BF WN

10

gives rise to a legal duty, not a request. (Pierce v. District of Columbia (D.D.C. 2015) 128 F.
Supp.3d250). The import of the ADA is that a covered entity should provide an accommodation
for known disabilities. A request is one way, but not the only way, an entity gains such
knowledge. To require a request from those who are unable to make a request would eliminate
an entire class of disabled persons from the protection of the ADA. (Brady v. Walmart (2nd Cir.
2008) 531 F.3d 127).

Probate Code 1051 empowers the Court to hear and act upon ex parte
communications made without notice that involve a conservatee or a fiduciary.

In theory, the appointment of a court-appointed attorney to represent the
Trustor could, hypothetically, fulfill the Court's obligation to ensure equal protection and equal
access to justice for disabled trustors and/or conservatees. However, the San Francisco Superior
Court Local Rules effective July 1, 2020 state in section 14.Q.5: “Court-appointed attorneys are
expected to inform the Court of the wishes, desires, concerns, and objections, of the (proposed)
conservatee. If asked by the Court, the attorney may give his or her opinion as to the best
interests of the (proposed) conservatee and whether a conservatorship is necessary. No written
report is required or necessary unless requested by the Court.” The Local Rules have no
requirement whatsoever that the Court-appointed counsel inform the conservatee of his or her
rights, and no requirement whatsoever that the Court-appointed counsel take any action to assert
the conservatee's rights. While in theory the Court might delegate to Court-appointed counsel
the responsibility of ensuring conservatees have equal access to justice and equal protection
under the law, the Local Rules indicate that the Court has not done so.

Selene Ballonoff has been a party in the related conservatorship since 2012 and
is unable to recall a single incident of any of the (now four) attorneys appointed to represent the
Conservatee asserting any of her rights or taking any action to ensure she had equal access to

justice or equal protection under the law. Two of the Conservatee's former Court-appointed

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 8 of 10Co en Anu FF YY =

oN — -
BRRFERRERBRHKBSCRSBTADEBSHEAS

attorneys are accused of Elder Financial Abuse of the Conservatee in a Complaint currently
pending in federal court. Marilyn's current court-appointed attorney did not meet with her and
filed a declaration in support of the Conservator's unmeritorious petition for authority to
withhold life-sustaining treatment.

The CEB California Conservatorship Practice Guide says in Section 12.2: "The
conservatee is solely dependent on ... the court in its oversight role to protect that conservatee's
interests and welfare / against abuse and neglect from the conservator/." The July 13, 2020 San
Francisco Superior Court Statement on Equity and Justice says in part: "to strive constantly to
improve the Superior Court to offer access to justice for all.... is our moral and ethical duty."
The Court has yet to delegate the role of ensuring the Conservatee/Trustor has equal access to
justice and equal protection under the law and must itself act to protect the Conservatee/Trustor.

If the Court will not continue the Trial Dates and pre-trial deadlines that pertain
to Selene Ballonoff, Selene Ballonoff respectfully requests that the Court bifurcate the Petition
to Limit Authority of Conservator such that issues that transpired during the Third
Conservatorship Account are heard with the Third Conservatorship Account and the remainder
of the issues are heard at a later date or with the Fourth Conservatorship Account.

The allegations against Mr. Lucas in the Petition to Limit Authority and
Objections to the Third Conservatorship Account and First Trust Account are serious. In order
to protect the Trustor/Conservatee, the Court must allow Selene Ballonoff an opportunity to
discover documents and testimony that support the allegations.

V. Yom Kippur (a holy day of fasting) is September 28; Difficult to Escape Heat Expected

Yom Kippur is September 28 this year. The weather prediciton is 96 degrees
Fahrenheit. The libraries Selene normally escapes to in extreme heat are closed because of
Shelter in Place. Selene Ballonoff respectfully requests a continuance of three days to October

1, 2020 if the Court will not grant a continuance for discovery.

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 9 of 10Co em NY DAH FF BW N

NN NN WYNN KN BS Bee ew ee RB HR
oN AA BON KF SO MI DWH FF wWNH FS

VI. The Interest of Justice

Probate Code 1045 states: "The court may continue or postpone any hearing,
from time to time, in the interest of justice." If the trial goes forward without Selene Ballonoff
being able to obtain essential documents to prove her petition and adequately object to the
Conservator/Trustee's Accountings, with the Civil Complaint (which includes many issues
identical to the issues in the Third Conservatorship Account, First Trust Account and Petition to
Limit Authority of Conservator) still pending, the Trustor/Conservator will be rewarded for his
abuse of process and abuse of the Trustor.

If the trial goes forward without the essential documents, Mr. Lucas's further
flouting of the law this summer that nearly cost Marilyn her life will have served to prevent

accurate judicial review of his earlier violations of law.

WHEREFORE SELENE BALLONOFF PRAYS FOR AN ORDER. continuing the
September 28 trial date in the Trust and related Conservatorship and all pre-trial deadlines that
pertain to her for six months; or in the alternative, a continuance of at least one week to allow
Selene Ballonoff to observe Yom Kippur and be present for the first day of trial; or in the
alternative bifurcating the Petition to Limit Authority of Conservator such that issues that
transpired during the Third Conservatorship Account are heard with the Third Conservatorship
Account and the remainder of the issues are heard at a later date or with the Fourth
Conservatorship Account.

I certify under penalty of perjury the foregoing is true and correct except for those matters stated
on information and belief and as to those matters I believe them to be true.

Sioned Ate Fal Berkeley, California September 23, 2020
Selen

allonoff

Selene Ballonoffs Ex Parte Application for Continuance of Trial Date Page 10 of 10Inve the Marilyn Silverman-Ballonoff Revocable Trust
Case No.: PTR-17-301171

PRIVILEGE LOG
FOR
REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE

Document Date Author(s) Recipient(s) Subject
August 17,2017- | Thomas Thomas Lucas and Attorney Work-
August 16, 2018 Lucas and Franchesca product; attorney-

Franchesca_ | Callejo client privilege
Callejo
August 17, 2017- | Thomas Thomas Lucas and Attorney Work-
August 16, 2018 Lucas and Solan, Park, and product; attorney-
Solan, Park, | Robello client privilege
and Robello | (Sheila Robello)
(Sheila :
Robello)
August 17, 2017— | Thomas Thomas Lucas and Attorney Work-
August 16, 2018 Lucas and Daniel Conrad product; attorney-
Daniel client privilege
Conrad

Attorney-client privilege is claimed for all communications, including letters, documents, and

records, between Mr. Lucas and his counsel for the time period of the First Account from August 17, 2017

to August 16, 2018. These documents will not be produced.

PRIVILEGE LOG FOR REQUESTS FOR PRODUCTION OF DOCUMENTS, SET
PTR-17-301171 EXHIBIT
1e Exmiletr &
. Qlaz]O@0 " 5!28 on
1 BB¢2t/ 201d OST SIFT

SER.#  U63536B4F 252799

DATE, TIME . 5/21 95:24PM
FAX NO. /NAME 14155547868
DURATION 99: 88: 83

PAGE(S)
RESULT ok.
MODE. : STANDARD

SAN FRANCISCO SHERIFF'S DEPARTMENT
CIVIL SECTION i

INSTRUCTIONS FOR SERVICE

‘The Sheriffmust have written and signed instructions by the Plaintiff or the Plaintiff's Attorney for court documents in
accordance with California Civil Code of Procedure 262.

Selene [Eu tlonotf we Torn tvcas, etal.
| Plaineiif Defendant
DOCUMENTS SERVED MONDAY — FRIDAY 9:00 — 5:00

Early Service starts at 7:00 a.m. on Tuesday/Thursday ONLY
Late Service ends at 7:00 p.m. on Mondays/Thursday ONLY

TXRE OFSERVICE REQUESTED i
a Cini Detendanted C1 Claim of Plaintiff and Order
. Order
OQ Order After Hearing (1 Order of Examinatiqn
Os Order'to Show Cause LJ —- Request for Order’ |"
O) Subpoena Civil/Criminal 1s Sumpaons and Complaint/S&C Unlawful detainer
CO Summons and Petition Cl) Other:

ASE PROVIDE TWO (2) COMPLETE SETS OF SERVICE ‘DOCUMENTS

CorWi, ZAR — (SM Set

Besttime forservice: <

[@ PERSON OR BUSINESS TO BE SERVED: CTZeeMne lr

algziowe " S!28 ern
BPR 201d WS: SPM

FAX:
SER.# | U63536B4F 250793

DATE, TIME @5/21_ 85: 24PM
. /NAME. 14155547868
QB: 88: 83

13
- K
STANDARD

¢ INSTRUCTIONS FOR SERVICE
‘The Sheri aust have written and signed instructions by the Plaintiffor Plaintiff's Attorney for court documents in
accordance California Civil Code of Procedure 202.

Selene eatlonott w mM Lucas et al.
Plaintitt Defendant

DOCUMENTS SERVED MONDAY — FRIDAY 9:00 - 5:00

Early Service starts at 7:00 a.m. on Tuesdoy/Thersday ONLY
Late Service ends at 7:00 p.m. on Mondays/Thursday ONLY

TPE GESERVICE REQUEST?

C1 Ciaimlof Defendantand C1 Claim of Plaintiff and Order

. Order

 Order,AfterHearing a antennae

(1 Onder{to Show Cause i —s- Request for Order |’

C1  Sunpoena Civil/Criminal FE] Summons and ComplaintS&C Unlawiul detainex
o ons and Petition (1 Other:

Sun
: PLEASE PROVIDE TWO (2) COMPLE: TESETS pF SERVICE DOCUMENTS

Torn Lucas | _
=- (eM Srart SANFRANCISCO,CA 941.11

[@ PERSO! OR BUSINESS TO BE SERVED: