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Case Number: PTR-05-287341
Filing Date: Feb-21-2007 11:36
Juke Box: 001 Image: 01687907
MEMORANDUM OF POINTS AND AUTHORITIES
RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED Wr
001P01687S07
Instructions: .
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SPELLMAN & MITCHELL
DEAN M. SPELLMAN, #060042
ROBERT B. MITCHELL, #074795
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attomey for CAROL MITCHELL
San Francisco Ci /E I Court
FEE/2 1 2007
GORDO PARICU, Clerk
i fepaty Clerk
'N THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND WILL
DATED NOVEMBER 2, 2004
CAROL MITCHELL,
Petitioner,
vs.
EVA V. KNOTT, Trustee and Beneficia
under the REVOCABLE LIVING TRUS
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
wil and trust beneficiary,
Respondents.
Case Number PTR-05-287341
MEMORANDUM OF POINTS AND
AUTHORITIES IN REPLY TO
OPPOSITION TO ORDER DIRECTING
COMPLIANCE WITH SUBPOENA,
ALTERNATIVELY EXCLUDING THE
TESTIMONY OF CHANTAY ALLMOND
AND FOR EXPENSES OF THE MOTION
Date: March 1, 2007
Time: 10:30 a.m.
Room No: 612
Filing Date: June 2, 2005
Judge: Commissioner Everett A. Hewlett
Trial Date: April 9, 2007
1. CHANTAY ALLMOND FILED NO OPPOSITION TO THIS MOTION
| It should first be noted that the non-party witness to whom this motion is
directed, Chantay Allmond, filed no opposition to the relief requested.
office in connection with this motion, but as of the writing of this memorandum, Ms.
MEMORANDUM OF POINTS AND AUTHORITIES IN
REPLY TO OPPOSITION TO ORDER DIRECTING
(COMPLIANCE WITH SURPOENA, ALTERNATIVELY
EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND
Petitioner also advises this court that Ms. Allmond has attempted to contact this
AND FOR EXPENSES OF THE MOTIONwo ODA DH HO FF WD
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Allmond has yet to speak with Petitioner's counsel. Itis hoped that an arrangement
may be made with Ms. Allmond as to her deposition and should such arrangement be
made, Petitioner's counsel will so advise this court. Itis hoped that the court will
accommodate a request for continuance of this motion until a date after Ms. Allmond’s
deposition.
Il, RESPONDENT HAS FILED ONLY LIMITED OPPOSITION
The single substantive objection asserted by Respondent is that the court should
not exclude Ms. Allmond's testimony at time of trial should she not submit to Petitioner's
deposition..
Respondent fails to appreciate the fact that Petitioner will be unduly prejudiced in
the event Ms. Allmond does not submit to her deposition but appears at the trial in this
matter. It is a basic principle of avoiding surprise that Petitioner be permitted to depose
those witnesses Respondent intends to call at trial. Should Respondent's witnesses fail
to submit to deposition, the only practical solution to that refusal is to exclude their
evidence at time of trial.
Petitioner has attempted to extend to Ms. Allmond every courtesy in connection
with her deposition, including, but not limited to, delaying the deposition in order for her
to meet the medical needs of her mother and acceding to her request that Petitioners
counsel deal directly with a representative of Kaiser Permanente." Alll that Petitioner
received in meeting Ms. Allmond's requests is a delay in her deposition and the
burdens caused by a representative of Kaiser who did not accomplish the task of
arranging the subject deposition.
As to Respondent's “secondary” complaints, inquiry was made of Respondent's
first attorney for cooperation and assistance in deposing various witnesses. Petitioner's
It should be noted that Kaiser Permanente is not exempt from the Code of Civil Procedure. It cannot
restrict the location of any deposition and it has no right to demand witness fees beyond that provided for in the
Code of Civil Procedure.
MEMORANDUM OF POINTS AND AUTHORITIES IN
REPLY TO OPPOSITION TO ORDER DIRECTING
COMPLIANCE WITH SURPOENA, ALTERNATIVELY
EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND:
AND FOR EXPENSES OF THE MOTIONec Ot Dn HN F&F WN
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counsel was specifically informed by Respondent's counsel that Ms, Knott was not in
any way going to cooperate with Petitioner's counsel in connection with this matter and
would not assist in any way in the prosecution of this action, including Respondent's
witnesses. The history of this case demonstrates well that Respondent has followed
this philosophy.
Secondly, Respondent's urging that other remedies should be pursued, such as
contempt and civil damages, does not solve the problem. Neither of these remedies
prepare Petitioner for cross-examination of Ms. Allmond and does not in any way
address the issue of “surprise” as to Ms. Allmond’s trial testimony.
Also in this regard, it is somewhat disingenuous for Respondent to claim that
Respondent has no control over her witnesses. Five of the other six “lay” witnesses of
Respondent deposed by Petitioner, each of them have discussed Mr. Actis with Ms.
Knott and in fact on at least one occasion, Ms. Knott drove one such witness to that
witness’ deposition. If history is any indication, Ms. Knott is in contact with Ms. Allmond.
I. CONCLUSION
White it is hoped that Ms. Allmond’s deposition will be taken, either voluntarily or
by court corder, witness exclusion must be an option available to this court in order to
avoid irreparable prejudice to this Petitioner.
Dated: February 16, 2007.
ROBERT B. MITCHELL, Attomey for
Petitioner
MEMORANDUM OF POINTS AND AUTHORITIES IN
REPLY YO OPPOSITION TO ORDER DIRECTING
COMPLIANCE WITH SUSPOENA, ALTERNATIVELY
EXCLUDING THE TESTIMONY OF CHANTAY ALLMONOD
AND FOR EXPENSES OF THE MOTIONc C
PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
' declare that | am employed in the County of Contra Costa, California. | am over
the age of eighteen years and not a party to the within cause. My business address is
1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407.
On February 16, 2007, | served the within MEMORANDUM OF POINTS AND
AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING COMPLIANCE
WITH SUBPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY
ALLMOND AND FOR EXPENSES OF THE MOTION on the hereinafter nemed
person(s) by placing a true copy thereof enclosed in a sealed envelope with postage
thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed
as follows:
KING, KING & FISHLEDER
Attn: George King
555 12” Street, Ste. 1440
Oakland, CA 94607
ERNEST F, DER
Attorney at Law
101 Howard Street, Suite 490
San Francisco, CA 94105
Caroline K. Hinshaw, Esq.
425 California Street, Suite 900
San Francisco, CA 94104
CHANTAY ALLMOND
21 Shelborne Avenue
Daly City, CA 94015
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 on February
16, 2007, at Walnut Creek, California,
i
Aiebe Aa d
MEMORANDUM OF POINTS AND AUTHORITIES IN
REPLY TO OPPOSITION TO ORDER DIRECTING
COMPLIANCE WITH SUBPOENA, ALTERNATIVELY
EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND:
AND FOR EXPENSES OF THE MOTION
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IATA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Feb-22-2007 11:38 am Case Number: PTR-05-287341 Filing Date: Feb-21-2007 11:36 Juke Box: 001 Image: 01687907 MEMORANDUM OF POINTS AND AUTHORITIES RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED Wr 001P01687S07 Instructions: . Please place this sheet on top of the document to be scanned.ow © DT Dn UV ® WH PP eB PP PP Be a nu & WN FP oO 17 € SPELLMAN & MITCHELL DEAN M. SPELLMAN, #060042 ROBERT B. MITCHELL, #074795 1850 Mt. Diablo Bivd., Ste. 670 Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attomey for CAROL MITCHELL San Francisco Ci /E I Court FEE/2 1 2007 GORDO PARICU, Clerk i fepaty Clerk 'N THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 CAROL MITCHELL, Petitioner, vs. EVA V. KNOTT, Trustee and Beneficia under the REVOCABLE LIVING TRUS AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor anda wil and trust beneficiary, Respondents. Case Number PTR-05-287341 MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING COMPLIANCE WITH SUBPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND AND FOR EXPENSES OF THE MOTION Date: March 1, 2007 Time: 10:30 a.m. Room No: 612 Filing Date: June 2, 2005 Judge: Commissioner Everett A. Hewlett Trial Date: April 9, 2007 1. CHANTAY ALLMOND FILED NO OPPOSITION TO THIS MOTION | It should first be noted that the non-party witness to whom this motion is directed, Chantay Allmond, filed no opposition to the relief requested. office in connection with this motion, but as of the writing of this memorandum, Ms. MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING (COMPLIANCE WITH SURPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND Petitioner also advises this court that Ms. Allmond has attempted to contact this AND FOR EXPENSES OF THE MOTIONwo ODA DH HO FF WD Poe BP Be ew a & WH FF Oo 16 € C Allmond has yet to speak with Petitioner's counsel. Itis hoped that an arrangement may be made with Ms. Allmond as to her deposition and should such arrangement be made, Petitioner's counsel will so advise this court. Itis hoped that the court will accommodate a request for continuance of this motion until a date after Ms. Allmond’s deposition. Il, RESPONDENT HAS FILED ONLY LIMITED OPPOSITION The single substantive objection asserted by Respondent is that the court should not exclude Ms. Allmond's testimony at time of trial should she not submit to Petitioner's deposition.. Respondent fails to appreciate the fact that Petitioner will be unduly prejudiced in the event Ms. Allmond does not submit to her deposition but appears at the trial in this matter. It is a basic principle of avoiding surprise that Petitioner be permitted to depose those witnesses Respondent intends to call at trial. Should Respondent's witnesses fail to submit to deposition, the only practical solution to that refusal is to exclude their evidence at time of trial. Petitioner has attempted to extend to Ms. Allmond every courtesy in connection with her deposition, including, but not limited to, delaying the deposition in order for her to meet the medical needs of her mother and acceding to her request that Petitioners counsel deal directly with a representative of Kaiser Permanente." Alll that Petitioner received in meeting Ms. Allmond's requests is a delay in her deposition and the burdens caused by a representative of Kaiser who did not accomplish the task of arranging the subject deposition. As to Respondent's “secondary” complaints, inquiry was made of Respondent's first attorney for cooperation and assistance in deposing various witnesses. Petitioner's It should be noted that Kaiser Permanente is not exempt from the Code of Civil Procedure. It cannot restrict the location of any deposition and it has no right to demand witness fees beyond that provided for in the Code of Civil Procedure. MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING COMPLIANCE WITH SURPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND: AND FOR EXPENSES OF THE MOTIONec Ot Dn HN F&F WN PoP PF Be BP Be Be BP BP eB eo ort ann &® WH FO 20 26 27 28 € C counsel was specifically informed by Respondent's counsel that Ms, Knott was not in any way going to cooperate with Petitioner's counsel in connection with this matter and would not assist in any way in the prosecution of this action, including Respondent's witnesses. The history of this case demonstrates well that Respondent has followed this philosophy. Secondly, Respondent's urging that other remedies should be pursued, such as contempt and civil damages, does not solve the problem. Neither of these remedies prepare Petitioner for cross-examination of Ms. Allmond and does not in any way address the issue of “surprise” as to Ms. Allmond’s trial testimony. Also in this regard, it is somewhat disingenuous for Respondent to claim that Respondent has no control over her witnesses. Five of the other six “lay” witnesses of Respondent deposed by Petitioner, each of them have discussed Mr. Actis with Ms. Knott and in fact on at least one occasion, Ms. Knott drove one such witness to that witness’ deposition. If history is any indication, Ms. Knott is in contact with Ms. Allmond. I. CONCLUSION White it is hoped that Ms. Allmond’s deposition will be taken, either voluntarily or by court corder, witness exclusion must be an option available to this court in order to avoid irreparable prejudice to this Petitioner. Dated: February 16, 2007. ROBERT B. MITCHELL, Attomey for Petitioner MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY YO OPPOSITION TO ORDER DIRECTING COMPLIANCE WITH SUSPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMONOD AND FOR EXPENSES OF THE MOTIONc C PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 ' declare that | am employed in the County of Contra Costa, California. | am over the age of eighteen years and not a party to the within cause. My business address is 1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407. On February 16, 2007, | served the within MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING COMPLIANCE WITH SUBPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND AND FOR EXPENSES OF THE MOTION on the hereinafter nemed person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: KING, KING & FISHLEDER Attn: George King 555 12” Street, Ste. 1440 Oakland, CA 94607 ERNEST F, DER Attorney at Law 101 Howard Street, Suite 490 San Francisco, CA 94105 Caroline K. Hinshaw, Esq. 425 California Street, Suite 900 San Francisco, CA 94104 CHANTAY ALLMOND 21 Shelborne Avenue Daly City, CA 94015 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 on February 16, 2007, at Walnut Creek, California, i Aiebe Aa d MEMORANDUM OF POINTS AND AUTHORITIES IN REPLY TO OPPOSITION TO ORDER DIRECTING COMPLIANCE WITH SUBPOENA, ALTERNATIVELY EXCLUDING THE TESTIMONY OF CHANTAY ALLMOND: AND FOR EXPENSES OF THE MOTION