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Case Number: PTR-05-287341
Filing Date: Nov-14-2006 2:18
Juke Box: 001 Image: 01597053
GENERIC PROBATE PLEADING
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC
001P01597053
Instructions:
Please place this sheet on top of the document to be scanned.iC. C
GEORGE KING (SBN 028951) F Fy
KING, KING & FISHLEDER San Frartico Ba, MCU
The 555 City Center Building my Superior Court
555 Twelfth Street, Suite 1440. Nov 14 2006
Oakland, California 94607
Telephone: (510) 844-3400 GORDON pagic,
Facsimile: (510) 444-3401 BY IU, Clerk
uty Clerk
Attomeys for Respondent EVA V. KNOTT
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST CASE NO.: PTR-05-287341
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, and WILL | EXHIBITS TO OPPOSITION TO
DATED NOVEMBER 2, 2004, SUMMARY ADJUDICATION MOTION
Date: November 28,2006
AND RELATED CROSS-ACTION. Time: 11:00 a.m.
Room No.: 204
Filing Date: June 2, 2005
Judge: The Hon. John Dearman
Trial Date: Not Assigned
EXHIBIT “A” Relevant portions of Petitioner/Contestant Carol Mitchell’s points
and authorities in opposition to Respondent Eva Knott’s motion for
summary judgment.
EXHIBITS “B” and “C” True and correct copies of the Will and Revocable Living Trust of
Charles Actis executed on November 2, 2004.
EXHIBIT “D* True and correct copy of the Declaration of Eva Knott.
EXHIBIT “E” True and correct copy of the Declaration of nurse Chantay
Allmond.
EXHIBIT “F” True and correct copy of the neuropsychological report of Charles
Actis written by Doctor Charles Vella of Kaiser Permanente,
previously attached as Exhibit 3 to Respondent’s Memorandum of
Points and Authorities in Response to Petition to Determine
Validity of Purported Will and Trust.
EXHIBIT “G” True and correct copy of the Supplemental Declaration of Harold
Vincent McCarthy.
EXHIBITS TO OPPOSITION 1EXHIBIT “H”
EXHIBIT “I”
EXHIBITS “J”
EXHIBIT “K”
EXHIBIT “L”
EXHIBIT “M”
EXHIBIT “N”
EXHIBIT “O”
EXHIBIT “P”
EXHIBIT “Q”
EXHIBIT “R”
EXHIBIT “S”
EXHIBIT “T”
EXHIBIT “U”
EXHIBIT “Vv”
EXHIBIT “W”
EXHIBIT “X”
EXHIBITS TO OPPOSITION
Cc
True and correct copy of the Report of Barbara Simon, a
professional fiduciary, previously attached as Exhibit 4 to
Respondent’s Memorandum of Points and Authorities in Response
to Petition to Determine Validity of Purported Will and Trust.
aru and correct copy of the Declaration of nurse’s assistant Maria
arillo.
True and correct redacted copies of the deposition of David J.
Friedenberg.
True and correct copy of the Declaration of David J. Friedenberg.
True and correct copy of the Declaration of Harold Vincent
McCarthy.
True and correct redacted copies of the deposition of Gregory P.
O'Keeffe.
True and correct copy of the will executed by Charles Actis on or
about August 10, 2004.
True and correct copy of the Certificate of Independent Review
executed by attorney Gregory O’Keeffe on April 7, 2005.
True and correct copy of the Registrar of Actions in San Francisco
County Case PCN-04-286737.
True and correct copy of Petitioner/Contestant Carol Mitchell’s
Petition to Determine Validity of Will and to Impose Constructive
Trust.
True and correct copy of Petitioner/Contestant Carol Mitchell’s
Objection to Probate of Will.
True and correct copy of Petitioner/Contestant Carol Mitchell’s
Will Contest.
True and correct copy of this court’s order denying Respondent’s
motion for summary judgment.
True and correct copy of Probate Code section 21351(b)’s sample
form for Certificate of Independent Review.
True and correct copy of the Declaration of Harold Vincent
McCarthy.
True and correct copy of a letter from Dr, Harry Lew of Kaiser
hospital San Francisco, previously marked as Exhibit 5 to
Respondent’s Memorandum of Points and Authorities in Response
to Petition to Determine Validity of Purported Will and Trust.
True and correct redacted copies of the deposition of Eva V. Knott.27
28
C C
EXHIBIT “Y” True and correct copy of the Supplemental Declaration of David J.
Friedenberg.
EXHIBIT “Z” True and correct redacted copies of the deposition Harold Vincent
McCarthy.
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SPELLMAN & MITCHELL
DEAN M. SPELLMAN, #060042
ROBERT B. MITCHELL, #074795
1850 Mt. Diablo Bivd., Ste. 670
Watnut Creek, Califomia 945964407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FORTHE COUNTY OF SAN FRANCISCO
ESTATE OF: Case Number: PES 05-287457
CHARLES ACTIS MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
Decedent RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT OR
ALTERNATIVELY, SUMMARY
ADJUDICATION OF ISSUES
CAROL MITCHELL
Date: March 8, 2006
Contestant Time: 11:00 a.m.
Room No: 204
vs. Filing Date: June 2, 2005
dudge: The Honorable John Dearman
EVA KNOTT, : Trial Date: Not Assigned
Respondent,
TABLE OF CONTENTS
VINTRODUCTION 2.0... cc ccecc cece cece ec ence sens ennseceneees seeeees :
i. BRIEF FACTUAL BACKGROUND
A. The August 2004 Will ...
1, Vid
MEMORANDUM OF POINTS AND AUTHORITIES It
OPPOSITION TO RESPONDENT'S MOTION FOR
SUMMARY JUDGMENT, etc,
NOUMOAONN =wo BPI nA HW BF Wn
NNN NN ND BM ee et ee eet
Ss®*SerasreSvueresseaenuaatranrrs
motion).
F,_The Certificate of Independent Review
Lastly, moving party argues that Contestant carries the burden of proof of undue
influence due to the fact that a Certificate of Independent Review was executed. Moving
party Is mistaken In that not onlyhas moving party failed to present evidence that the
conditions of such Probate Code Section have been met, there Is a triable issue of fact
as to the propriety of the offered Certificates of Independent Review (Exhibit 10 to
moving papers).
Probate Code §21351(b) provides that certain conditions be met to be an
effective Certificate of Independent Review. Included as a condition is that the
independent attorney attempt to determine if the intended consequences are the result
of fraud, menace, duress, or undue influence. Moving Party fails to show exactly what
facts the certifying attorney relied upon in executing the subject certificate,
Additionally, and as Is evidenced by the accompanying Declaration of Robert B.
Mitchell (Exhibit “C*, Section “Deposition of Attomey Gregory O'Keeffe") certain material
facts were not known to the certifying attorney at the time of his execution of the subject
Certificate including, but not limited to, the fact that decedent's August 2004 Will had
been videotaped, that David Friedenberg had prepared all Deeds of Trust In connection
with the $130,000.00 loan from decedent to Eva Knott and that such facts would have
been relevant in his determination of undue influence, etc. Contestantis entitled to
cross-examine attomey O'Keeffe at trial in order to show the Inadequacy of his efforts to
determine the existence of undue influence, etc. as well as his ignorance of material
facts relevant to the Issue of undue influence, a number of which were not to disclosed
to him by attorney Friedenberg. Should it be determined that such efforts were
insufficient, the court will invalidate such Certificate. Consequently, it Is too early in these
proceedings to determine the adequacy of the subject Certificate and to determine who
holds the burden of proof as to this issue.
MEMORANDUM OF POINTS AND AUTHORITIES I
OPPOSITION TO RESPONDENTS MOTION FOR
SUMMARY JUDGMENT, ete,yo owt nN eB wn
NNN NR Ye Pe Pe Pe Be Be ee oe
eBSagrvgesngF 8seueonotanaans &Bneres
consumes both this court's and this Contestant's time, Respondent's declaration along
with the declaration of her counsel were offered In bad faith and for the purpose of delay
and under Code Civ. Proc. §437c(/), this court should assess sanctions. In this regard,
Contestant requests that Respondent and her counsel be ordered to pay within ten (10) .
days of the hearing of this matter, the sum of $5,000.00. While such sum Is less than the
reasonable amount of attomey’s fees for the time expended by Contestant's attomey In
preparing opposition to this motion, such amount is sufficient to punish the Respondent
and her counsel for such wronglul conduct...
V, CONCLUSION
ttis respectfully submitted that triable issues of fact do exist as to all issues
sought to be adjudicated by Moving Party in this motion. Conflicting evidence exists as
to Mr. Actis’ mental state and the presence of undue influence (Moving Party's Issues 1,
2, 3, & 4), Funhermore, the status of Eva Knott as Mr Actis' caregiver and the validity of
& Certificate of Independent Review (Moving Party's Issues 5 & 6) are issues that must
be reserved for trial,
Consequently, this Contestant respectfully requests that all motions herein be
dented and that this court assess sanctions In the sum of $5,000.00 against both Moving
Party and her attomey David Friedenb:
Dated: February 1S 2008.
Yodo frectmncs Attomey for
Contestant CAROL MITCHELL
MEMORANDUM OF POINTS AND AUTHORITIES 1N-
OPPOSITION TO RESPONDENT'S MOTION FOR:
‘SUMMARY JUDGMENT, ete,
20EXHIBIT B fLAST WILL AND TESTAMENT
OF
CHARLES ACTIS
I, CHARLES ACTIS, a resident of the City of San Francisco, County of San
Francisco, State of California, being of: sound and disposing mind, memory and understanding, and
not acting under duress, menace, fraud or undue influence of any person whomsoever, do > hereby
make, publish and declare this to be my Last Will and Testament, in the following mennct:
FIRST: Thereby revoke all other and former Wills and Codicils to Wills by
me made, . /
SECOND: I hereby direct my Executor, as soonas sufficient funds are available,
and as soon after my demise as can lawfully and conveniently be done, to pay all of my just debts
and funeral expenses. .
THIRD: I declare that I am a single man, and that I have no children living or
deceased, My closest living relative is my half brother, MARCO D. FERRERO.
FOURTH: I give, devise and bequeath my estate of every kind and description
to the Trustee of my Revocable Living Trust dated November 2, 2004 to be distributed
pursuant to the provisions as set forth therein. Should the Trust, for any reason, be declared invalid,
my estate shall be distributed as follows:
A. ONE HUNDRED THOUSAND ($100,000) DOLLARS to my Trustee hereinafter
named for the benefit of the children of, my nephew, MARCO FERRERO, JR. or the
issue of any deceased child living at the time of. my death, to be held and distributed
as follows:Cc. . C
My “Trustee shal! divide said sum of One Hundred Thousand Dollars
_ ($100,000) into equal accounts for each of the children of my nephew,
MARCOFERRERO, JR., living at the time of ‘my death or any issue by right
of representation of any deceased child,
My Trustee shall pay to, or on account of each child’so much of the net
income as the Trustee in its absolute discretion, considers necessary for
educational purposes, faking into consideration the reasonable needs of sa
child and the availability of other funds for said purpose. " Educational
purposes is meant to include vocational, undergraduate, and graduate studies
if, in the Trustee’s discretion, they are pursued to the advantage of the
beneficiary and may include living expenses reasonably related to the
beneficiaries’ studies, Any undistributed net income shall be accumulated
and added to the principal.
Upon each child, or issue of a deceased child by right of representation,
attaining age twenty-one (21) years, the Trustee shall pay and distribute to
such child his or her then balance of their Trust Estate.
If any child shall die before attaining age twenty-one @1) years, without
leaving any issue surviving, then said child’s share shall be distributed to said
child’s brothers and/or sisters.
Itis expressly understood that the net income derived from this Trust estate
herein created, and the principal of this Trust Estate are intended for the sole
and individual use and enjoyment of the beneficiaries of this Trust, and saidC C
beneficiaries shall not in any event, either jointly or severally, assign, sell,
_ transfer, convey, pledge, hypothecate, impair, or otherwise encumber their
interest in this Trust, nor shall the principal of said Trust Estate, nor any part
thereof, be liable for: any debt or obligation.
B. Al the rest, residue and remainder of my estate of every: kind and description, and
wherever located, is to go to my friend, EVA KNOTT. ° ,
Il IfEVA KNOTT should predecesse me, then sai? remainder shal be ‘paid to
‘my Trustee hereinafter named to be held and distributed equally for the benefit of the children ofmy
nephew, MARCO FERRERO, JR., as hereinabove set forth.
FIFTH: I declare that except as provided herein, I have intentionally omitted
to provide herein for any of my heirs living at the time of my death, If any beneficiary under this
Will shall in any manner contest or attack this Will or any ofits provisions, then in such event any
share or interest in my estate given to such contesting beneficiary under this Will is hereby revoked,
and to such persons so contesting or objecting, I give the sum of ONE DOLLAR ($1.00) and no
more.
SIXTH: Thereby nominate and appoint EVA KNOTT, or if she is unable or
unwilling to act, the BANK OF AMERICA, as the Trustee to administer any Trust created herein, .
both to serve without bond.
SEVENTH: [hereby nominate my friend, EVA KN! OTT, as Executor of this my
Last Will and Testament, to serve without bond. If she is unwilling or unable to serve, I hereby
nominate BANK OF AMERICA., also to serve without bond,~ EIGHTH: _ Itis my request that DAVID J. FRIEDENBERG, ESQ. be appointed
attorney for the probate of my estate.
IN WITNESS WHEREOF, I sign, seal, publish and declare this as my Last Will and
Testament in the presence of the persons witnessing it at my request, this ant day of November,
2004 at Daly City, California.
" Onthe date written below, CHARLES ACTIS declared tous, the undersigned,
that this instrument, consisting of four (4) pages, including this page signed by us as witnesses,
after said Will was read to him in our presence, that this was his Last Will and Testament and
requested us to act as witnesses to it. He thereupon signed this Will in our presence, all of us
‘being present at the same time. We now, at his request, in his presence and inthe presence of
"each other, subscribe our names as witnesses. “
We declare under penalty of perjury that the foregoing is true and correct.
Executed on fn 2 2004 at Daly City, California. :
“ole, J hes, 2171 Junipero Serra Blvd. #620
Daly City CA 94014
Cal evedhn, Junipero Serra Blvd. #620
Daly City CA 94014EXHIBIT C /REVOCABLE LIVING TRUST AGREEMENT
OF
CHARLES ACTIS
This agreement made and entered at Daly City, California this a ay of
November, 2004, by CHARLES ACTIS, hereinafter referred to as "Trustor" and "Trustee".
1. TRUST PROPERTY
Property subject to this Trust instrument is listed in Schedule A attached hereto and
is referred to as the "Trust Estate" and shall be held, administered and distributed in accordance with
this instrument.
2. AMENDMENT
Trustor may at any time during his lifetime amend any of the terms of this instrument
by an instrument in writing signed by him and delivered to the Trustee. No Amendment shall
substantially increase the duties or liabilities of the Trustee or change the Trustee compensation
without the Trustee's consent, nor shall the Trustee be obligated to act under an Amendment unless
the Trustee accepts it.
3. REVOCATION
The Trustor may at any time revoke this instrument in whole or in part by an
instrument in writing delivered to the Trustee. If the Trustor revokes this instrument, the Trusteeshall deliver promptly to the Trustor, or the designees of all of the designated portion of the Trust
assets as set forth in said instrument, with an accounting of the Trustee's acts since the preceding
accounting,
4. PAYMENTS TO TRUSTOR DURING HIS LIFETIME
Commencing as of the date of this Agreement, the Trustee shall pay to, or shall apply
for the benefit of the Trustor during his lifetime, in monthly or other periodic installments, so much
of the net income of the Trust Estate as the Trustee shall determine necessary, for the care, support,
well being and enjoyment of Trustor.
The Trustee shall also pay overand deliver such portions of the principal of the Trust
Estate as the Trustor from time to time requests by written notice, or as determined necessary by the
Trustee in the event the income be insufficient to provide for the Trustor’s proper health, education,
support, maintenance, comfort, and welfare, in accordance with his accustomed manner of living at
the date of this instrument, without taking into consideration funds and assets available to him held
free of this trust.
The net income not expended or distributed by the Trustee shall be added to the Trust
Estate and reinvested as an integral part thereof.
5. INCAPACITY OF TRUSTOR
If at any time, either in the Tristee's discretion, or as certified in writing by two
licensed physicians not related by blood or marriage to Trustor or any beneficiary of this Trust,Trustor has become physically or mentally incapacitated, whether or not a court of competent
jurisdiction has declared him incompetent or mentally ill or has appointed a conservator, the Trustee
shall pay to or apply for the benefit of Trustor, such sums in the Trustee's discretion needed for the
proper health, support, maintenance, comfort, and welfare of Trustor in accordance with his
accustomed manner of living at the date of this instrument, until the Trustor, either in the Trustee's
discretion, or as certified by two licensed physicians not related by blood or marriage to Trustor or
to any beneficiary of this Trust, is again able to manage . his own affairs, or until the death of
Trustor.
6. PAYMENT TO OTHERS
The Trustor may at any time direct the Trustee in writing to pay single sums or other
periodic payments out of the Trust Estate to any other person or organization.
The Trustor’s power to so direct the Trustee shall be personal to the Trustor, except
that this power may be exercised by the Trustor's conservator to the extent that payments to one or
more of the conservatee's issue qualify for the annual federal gift tax exclusion.
7 WITHDRAWAL BY TRUSTOR
The Trustor shall have the right to direct the payment of income and principal and the right
to withdraw any part or all of the principal of the Trust Estate during his lifetime by a written
instrument signed by him and delivered to the Trustee.8. TERMINATION OF TRUST ON DEATH OF TRUSTOR
On the death of Trustor the entire remainder of the Trust Estate and all of the assets
therein shall be distributed as follows:
A.
ONE HUNDRED THOUSAND ($100,000) DOLLARS to my alternate Trustee
hereinafter named for the benefit of the children of my nephew, MARCO
FERRERO, JR. or the issue of any deceased child living at the time of my death, to
be held and distributed as follows:
1,
My Trustee shall divide said sum of One Hundred Thousand Dollars
($100,000) into equal accounts for each of the children of my nephew,
MARCO FERRERO, JR, living at the time of my death or any issue by right
of representation of any deceased child.
My Trustee shall pay to, or on account of each child so much of the net
income as the Trustee in its absolute discretion, considers necessary for
educational purposes, taking into consideration the reasonable needs of said
child and the availability of other funds for said purpose. Educational
purposes is meantto include vocational, undergraduate, and graduate studies
if, in the Trustee’s discretion, they are pursued to the advantage of the
beneficiary and may include living expenses reasonably related to the
beneficiaries’ studies. Any undistributed net income shall be accumulatedand added to the principal.
3. Upon each child, or issue of a deceased child by right of Tepresentation,
attaining age twenty-one (21) years, thé Trustee shall pay and distribute to
such child his or her then balance of their Trust Estate.
4, If any child shall die before attaining age twenty-one (21) years, without
leaving any issue surviving, then said child’s share shall be distributed to said
child’s brothers and/or sisters,
1. It is expressly understood that the net income derived from this Trust estate
herein created, and the principal of this Trust Estate are intended for the sole
and individual use and enjoyment of the beneficiaries of this Trust, and said
beneficiaries shall not in any event, either jointly or severally, assign, sell,
transfer, convey, pledge, hypothecate, impair, or otherwise encumber their
interest in this Trust, nor shall the principal of said Trust Estate, nor any part
thereof, be liable for any debt or obligation.
B. All the rest, residue and remainder of my estate of every kind and description, and
wherever located, is to go to my friend, EVA KNOTT.
I. IfEVA KNOTT should predecease me, then said remainder shall be paid to
my alternate Trustee hereinafter named to be held and distributed equally for the benefit of the
children of my nephew, MARCO FERRERO, JR., as hereinabove set forth.9 RESIGNATION OR REMOVAL OF TRUSTEE
During the lifetime of the Trustor, Trustee may resign at any time by giving the
Trustor at least thirty (30) days written notice delivered to the Trustor in person or by certified mail
to his last known address, and the Trustor may appoint a successor Trustee or Co-Trustee at any time
thereafter,
Trustor’s friend, EVA KNOTT, is appointed as successor Co-Trustee, or, if she is
unable or unwilling to act, the BANK OF AMERICA,
10. POWERS AND DISCRETIONS OF THE TRUSTEE /
The Trustee has been granted certain powers, authority and discretion with respect
to the Trust created hereunder. To supplement these, the Trustor hereby authorizes and empowers
the Trustee, including the original and any successor, as follows:
The Trustee is authorized to retain in the Trust, for such time as it may deem
advisable, any property received by it, hereunder, whether or not of the character
Permitted by law for the investment of trust funds.
The Trustee shall have the power, with respect to the property of the Trust Estate or
any part thereof, and upon such terms and in such manner as may be deemed
advisable, to sell, convey, and to lease for terms within or beyond the term of this
Trust and for any purpose, including exploration for and removal of gas, oi] and other
hypothecate by mortgage, deed of trust, pledge or otherwise, to carry insurance of
such kinds and in such amounts as the Trustee may deem advisable, at the expense
of the Trust; to compromise or otherwise adjust any claims against or in favor of the
Trust, to commence or defend such litigation with Tespect to the Trust, or any
property of the Trust Estate as it may deem advisable, at the expense of the Trust; to
invest or reinvest the trust funds in such property as the Trustee may deem advisable,
whether or not of the character permitted by law for the investment of trust funds;
and with respect to securities held in the tnust, to vote, give proxies and pay
6assessments or other charges, to participate in foreclosures, reorganizations,
consolidations, mergers and liquidations, and incident thereto, to deposit securities
with and transfer title to any protective or other committee upon such terms as the
Trustee may deem advisable, and to exercise or sell stack subscription or conversion
rights; and the Trustee shall have such additional Powers as may now or hereafter be
conferred upon it by law or as may be necessary to enable the Trustee to administer
this Trust in accordance with the. provisions of this Agreement, subject to any
limitations thereof that may be provided for herein. :
11, MARITAL STATUS AND CHILDREN
Trustor is a single man and has no children living or deceased.
12, | GENERAL PROVISIONS
A. The Trustee is not required to make reports to any Court, but the records
pertaining to the Trust Estate shall be open at all reasonable times to inspection by any beneficiary
of the Trust or by the representative of any such person, and any such persons shall have the right
to demand annual accounting, showing the administration of the Trust, estates, and their conditions.
B. The Trustee shalt pay out of principal or income, as it may elect, or partially
out of each, in such shares as it may determine, property taxes, assessments, charges, the fees of
attomeys engaged by it, the reasonable compensation of the Trustee, (a) for ordinary services, and
(b) for any extra-ordinary services performed by it and any other expenses incurred
in the administration or protection of the Trust. The income remaining after such expenditures asthe Trustees shall elect to pay therefrom, shall constitute net income.
c. The Trustee shall have full discretion to allocate the shares hereunder, as to
any assets which may be distributed to the Trustee pursuant to the Last Will of the Trustor.
D. If any provision of this Agreement shall be held by a Court of competent
jurisdiction to be invalid, the remaining provisions hereof shall continue to be fully effective.
E. Any Trustee shall be entitled to reasonable fees.
THIS AGREEMENT shall be binding upon the heirs, executors, and administrators
of the Trustor and upon the beneficiaries of the Trust created hereunder.
IN WITNESS WHEREOF, the party hereto has executed this Trust Agreement on
the day and date hereinabove set forth.
Dated: November _2~__, 2004
Pade Feb hap. £ Baba
CHARLES ACTI$, Trustee! CHARLES ACTIS, ‘Prustor "State of California)
dss.
County of San Mateo )
On this thednef day of November, 2004, before me, the undersigned Notary Public,
Personally appeared CHARLES ACTIS, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged that he executed the same in his authorized capacity and that by his signature on the
instrument the person or the entity upon behalf of which the person acted, executed the instrument.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
os SEAL:
NOTARY PUBLIC
~
SOFIAG. YE!
5a coc f
i
u Contracostacouty,
LX By Comm. Exp. Dec 18,2087‘EXHIBIT A
ATTACHMENT TO REVOCABLE LIVING TRUST AGREEMENT
OF
CHARLES ACTIS
DATED NOVEMBER 7, 2004
I. . Residence located at 1601 Ulloa Street, San Francisco, CA 94116
Legally described as follows:
BEGINNING at the point of intersection of the southerly line of Ulloa Street with the
westerly line of 17" Avenue; running thence westerly along said line of Ulloa Street 32
feet 6 inches; thence at a right angle southerly 100 feet; thence at a right angle easterly
32 feet 6 inches to the westerly line of 17" Avenue; thence northerly along said line of
17* Avenue 100 feet to the point of beginning. BEING a portion of Outside Land Block
No. 1190.
AP.N.: ‘Block 2418 Lot 001
2. All the household furniture and furnishings found in the real property located at
1601 Ulloa Street, San Francisco, CA 94116 e
3. Bank of America, Taraval Branch, San Francisco, CA; Acct. No. 02586-04951
4, Washington Mutual Bank, Acct. Nos. 866-886234-1 & 866-1148064-3
5. Promissory Note from Eva Knott dated July 22, 2003 secured by Deed of Trust
10EXHIBIT D fou ea NR DN HW B WY &
Non eee
BNRRRRRSRSRERDREKFESB oS
DAVID J. FRIEDENBERG, ESQ.
SBN 25026
2171 Junipero Serra Blvd., Ste. 620
Daly City, CA 94014
Telephone: (650) 755-6622
Facsimile: (650) 755-4312
Attorney for Respondent
EVA KNOTT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST Case No, PTR-05-287341
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004 DECLARATION OF EVA KNOTT IN
OPPOSITION TO PETITION TO
- DETERMINE VALIDITY OF WILL AND
CAROL MITCHELL, TRUST
Petitioner,
ve
EVA KNOTT, Trustee and Beneficiary
under the REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor and a
will and trust beneficiary,
Respondents.
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I, EVA KNOTT, do hereby declare as follows:
That I first met Charles Actis approximately four (4) years ago when I was driving a
neighbor of his, Lillian Kearney, who resided at 2454 17" Avenue, San Francisco, CA. lama
licensed home health care provider and Lillian was one of my clients. One day when I was
visiting Lillian, Charles Actis rang the doorbell and brought over 2 bags of cucumbers, one for
each of us. I was informed that Lillian and Charles were good friends and frequently spoke at
night.
exuipir
1
DECLARATION OF EVA KNOTT IN OPPOSITION‘
uo eo N DH H hk WY N —
mete
on DA UH fF WY NY SK OS
19
C. C
That when I visited Lillian Kearney, which was four to five days per week, I often saw
Charles Actis and we would wave and say "hello" to each other. One day I was driving Lillian to
the hairdresser and she asked me if I would drive Charles to the grocery store, which I did, [also
drove him to the store several times thereafter.
That about one year after meeting Charles Actis he asked if I would wash his clothes and
offered to pay me for doing so. I instead suggested he hire someone four times per week to do
his laundry, cleaning, drive him to the store and attend to his other needs. He told me he could
not afford to do that. Charles was very nice and I felt sorry for him. I would drive him to the
store and do some laundry for him about once per month. The only money I received from
Charles were reimbursements for gas or laundry detergent or housecleaning expenses.
That about two years ago Charles Actis told me that he had $300,000 in the bank and was
afraid it would be spent before he died and that his family would put him in a nursing home. He
complained that he was getting only 1% interest from the bank. Several months later, when I
was going through a divorce and needed cash funds to buy out my husband’s interest in our
property, I told Charles that I would pay him 3% interest, as opposed to the 1% he was getting
from the bank. Asa result, he made me a loan of $130,000 in July, 2003. Unfortunately, the
Deed of Trust securing the note had a typographical error which was later corrected. The note
was paid off in full plus interest in January, 2005.
That on numerous occasions, Charles Actis frequently told me that he was afraid his
family would try to get control over him and put him in a nursing home.
That in mid-2004 Charles Actis had foot surgery. Before he went to the hospital, Charles
said that he needed someone to clean his house. At his request, I hired someone to clean his
house on that occasion and he reimbursed me. I did not get any funds for myself except for
reimbursements on groceries or other items I purchased for him and the other reimbursements
mentioned above.
Ww
Ww
2
DECLARATION OF EVA KNOTT IN OPPOSITIONow oe NA UH fF WY NH =
nN - meme met
BNRRRBBRBSEGERBEAABDEBHEAS
C- C
That when I was out seeing other clients I frequently stopped in to see Charles for short
visits of usually 5-10 minutes.
That in mid-2004, Charles gave me an envelope from Kaiser Hospital, which contained
the results from the mental competency examination he had requested and taken at Kaiser. He
told me he was afraid of and didn’t trust his family (half-brother and children), He frequently
said he did not want them to get his money or control over him. He even asked me to marry him
and said "if you were my wife, you could take care of me." I put him off and did not accept the
proposal, although we became very good friends.
That approximately one year ago, Charles Actis asked me to take him to an attorney to
review the Kaiser report and advise him regarding his estate. When Charles informed me he
wanted to leave his estate to me, I told him he really should Jeave it to his family. He
emphatically stated that he did not want to leave anything at all to his half-brother or his half-
brother’s children.
The last six months of Charles Actis’ life, he frequently asked me to have dinner with
him. When I went éver, I cooked and we had dinner, I cleaned up and went home. Although I
was licensed home care giver, I never took on Charles Actis as a client nor accepted money from
him except for reimbursements of expenses as stated above, or the loan, as stated above.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and if called upon to testify in a court of law I could and would so
testify. Executed this_Z/_ day of June, 2005 in Daly City, California.
EVA KNOTT
3
DECLARATION OF EVA KNOTT IN‘OPPOSITIONEXHIBIT E |-DAVID J. FRIEDE_ :G, ESQ. C
s(Bhr
SBN 2502:
2171 Junipero Serra Blvd., Ste. 620
Daly City, CA 94014
Telephone: (650) 755-6622
Facsimile: (650) 755-4312
Attomey for Respondent
EVA KNOTT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004
Case No. PTR-05-287341
DECLARATION OF CHANTAY
ALLMOND
CAROL MITCHELL,
Petitioner,
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
wui aid trust beneficiary,
: Kespondents,
Le LO
TI, CHANTAY ALLMOND, do hereby declare as follows:
1. ThatI ama registered nurse,
2. That approximately one year ago I was assigned by Kaiser Hospital as a “home care
nurse” for Charles Actis, [ went to his residence in San Francisco almost daily to treat
him for his foot. This continued until Mr. Actis went back to Kaiser Hospital in April,
1 .
DECLARATION OF CHANTAY ALLMONDthe State of California that the matters herein are true and correct and that if called as a witness I
would so testify, Executed this |
That on num” occasions Fhad lunch with Mr. X. Jo told me that he did not want
anything to do with his family and did not want to leave them anything. He told me that
his brother was a "liar" and that he had previously given his family money for his care and
he felt they mistreated him. He was concemed that if something happened to him Eva
would not be in charge of him and his Property.
Itis my personal opinion that at all times Charles Actis seemed to know what he was
doing and was able to make his own decisions regarding his personal care and his
Property,
8 y of Al€2005 in Daly City, CA.
2 _
DECLARATION OF CIANTAY ALLMONDEXHIBIT F |C- Cc.
i .
Kaiser Permanente Medical Center
Department of Psychiatry4141 Geary Boulevard
San Francisco, CA 94118
(418) 833-3146
NEUROPSYCHOLOGICAL REPORT
This information is disclosed to you from records whose confidentiality is
protected by Federal law, Federal reguiation (42 CRF Part 2) prohibit you from
making any further disclosures of i without specific written consent of the
Person to whom # pertains, or as otherwise permitted by such feguiations. A.
general authorization for the release of medical or other information is NOT
sufficient for this purpose.
r
Patient: Charles Actis
MR #: 3057007
Date of Birth: Mar 7, 1924 .
Age: 80
Education: : High School
“Occupation: retired waiter
Handedness: Right
Date of Report: 06-07-2004
Tests/Procedures Administered:
Clinical Interview
Review of Medical Records
Cognistat
Problems in Everyday Living (PEDL):
California Verbal Learning Test-ll, Short Form (CVLT-2}
Trail Making Test (TMT)
Controlied Oral Word Association Test (COWAT)Patient’ Charles Actis
MR#: 3057007 C C
Page 2
Problems in Everyday Living Test (PEDL)
Norms Used: Héatori Comprehensive Nomis for an Expanded Halstead-Reitan *
Dates of Testing: 3/24/04
Referral Source: Pam Hatayma, LCSW, Home Health, Kaiser Permanente
Medical Center, San Francisco
Referral Reason:
Mr. Actis is a 80 year-old, Caucasian individual who was referred by Pam
Hatayma and APS (Carrie Wong) for concerns about undue influence and
possible financial abuse, filed in 11/03. Baseline neurapsychological screening
was requested.
Relevant History:
os
Mr. Actis is a 80 year-old, Caucasian man, of Italian American descent, who
acknowledged giving money to his friend Eva Knott because she had helped him
over the years and that APS was concemed that she was taking advantage of
him.
Eva is “in the business_of helping old people. "He has known her for a year and a
half. He gave her $130,000 as a loan for 2 years. He owns his own home and still
has $300,000 in the bank. He has family in Italy, but does not trust them. He
would like "to prove that he is not dumb, and wants to make a will.” He believes
his brother will fight his will. He does not want his brother to have his estate, “he
made me feel like a beggar.” He would like Eva as his conservator. She writes
his checks because he cannot see very well. He receives $177 in Social
Security, and $188 in pension. He has no mortgage payments. He states that if
Eva continues to properly care for him, he will leave his estate to her.
He was bom in San Francisco. At age 32 he went to Italy for 20 years, where he
was an electrician. When he retumed to the US, he worked in a laundry and then
as a waiter. He retired at 62, and has never been married. He never took a
vacation. .
He has difficulty writing, but can read, He has significant visual difficulties due to
retinitis due to Diabetes. He uses a magnifying glass to read the newspaper.
Medically, he has the following diagnoses: diabetic retinopathy, congestive heart
failure, diabetes type 2, atrial flutter, diabetic nephrotic syndrome, diabetic renal
failure, osteomyelitis, peripheral neuropathy, peripheral vascular disease, heart
failure, arteriosclerosis, angina. He has a pacemaker. He has had a coronary
artery bypass graft in 1989. He is on Lisinopril and furosemide.Patient: Charles Actis
MR#: 3057007 C€ C
Page 3
Carrie Wong, MSW, of APS, administered a MMSE to Mr. Actis, He scored 20/30
* She states that Mr.‘Actis gave an unsecured toarrof $4 Eva Knott, the
horig Garé agency owner for Bay Aréa Hoine Care Provider. He plans to make’
her his DPOA. APS sees her as uncooperative. He is dependent on her to
maintain his independence. APS requests a competency evaluation.
Observations/Test Behavior:
This is a neatly dressed and groomed man, who arrived on time for his
. Scheduled appointments. He was pleasant, fr'sndly and quite cooperative with all
the administered procedures. Mood was normal during the clinical interview;
affect was normal. There was no indication of overt depressive symptomatology.
Speech was fluent and understandable with no evidence of impairment in
expression or comprehension. He was able to provide a detailed sequential
history and respond appropriately to questions.
Abstractive ability and judgment appeared to be within the normal range. Mr.
Actis was oriented toward person, place and time. Thought content was logical,
coherent and rational. There was no evidence of auditory or visual
hallucinations, suicidal or paranoid ideation. Mr. Actis appeared to exert good
effort during testing. Test results are considered to accurately represent his
current abilities in the areas measured,
He clearly had some visual difficulties on the visual measures like the TMT.
Cognitive status is discussed extensively below. All of the Cognitive measures
were administered by Brac Selph, the Neuropsychology Service testing
technician.
Testing Results:
Cognitive:
General Status:
Mr. Actis performed normaily on the COGNISTAT. Orientation, Attention,
Language, Constructional Ability, Calculation, and Reasoning were ail within the
normal range. Naming and Block design were normal. Similarities and Judgment
were normal.
Attention and Concentration:
On a measure of visual attention and scanning (TMT - Part’A), the score fell in
the mildly impaired range (4th %tile), due to visua! acuity difficulties (diabetic
retinopathy).Patient: Charles Actis .
MR#: 3057007 C C
‘ Page 4
Memory:
The GV nemory. 8s né ea jeaming.and memory. - ..:
functioning:(s ronal: M Actis recalled 4 of the 9 Words on thé first trial of List A,
indicating an impairment in auditory attention span. By the fourth learning trial,
his recall had improved to 5 out of 9.words, a performance that was mildly
impaired (z score = -1.5). The across-trial recall consistency was normal,
indicating a normal ability to maintain a leaming plan. His use of semantic
categories appears to enhance retrieval, given that cued recall is better than free
recall. Both short and long delay free recall were normal (LD, z score =1; S$D,z
score = 1.5), indicating a normal rate of forgetting of verbal material. He has both
normal retention and free recall levels, similar to individuals with normal encoding
ability. He used semantic clustering (the use of category structure), the most
effective leaming strategy (z score = 1), a finding correlated with effective
memory functioning. On a measure of confabulation elicited in the delayed cued
recall condition (Cued Recall Discriminability) he was at a standard score of 2,
revealing normal retrieval ability. His recognition ability was normal (z score =
1.5) on Recognition Discriminability, the best overall measure of recognition
ability. The normal performance on long delay free recall and recognition
measures reveals normal memory and leaming ability.
Language Ability:
Spontaneous speech was fluent and understandable, with no evidence of
impairment in expression or comprehension. He was able to comprehend test
instructions and interview questions with no apparent difficulty. Phonemic fluency
was measured in the high average range (90th %tile). Semantic (category)
fluency was measured in the high average range (75th %tile, on Animal Naming).
Executive Functioning:
On tests designed to evaluate the ability to monitor one's actions, inhibit
overlearned behaviors, benefit from immediate feedback, and shift between
conceptual sets (attend to more than one aspect of the environment
simultaneously and to shift from one aspect to another), scores fell in the normal
range.
On a visual/motor measure of the ability to shift mental set (Trail Making Test -
Part B), he was unable to do because of his visual difficulty. The Problems of
Everyday Living Test, a measure that is predictive of the ability to live
independently, was in the normal range.reaver. wines
MR#: 3657007 .
Page 5 € € ,
, Mr. Actis i82,B0. year old man who recently loaned a caretaker $130, 000. The:
“ currént assessiment reveals that his cognitive ability is clearly in the normal:
rangé, He clearly has the intellectual ability to make an appropriate loan. Itis also
clear that he has lived alone his entire life, While is clearly competent to make
decisions, his emotional isolation could make him more susceptible to financial
abuse. While I do not believe he needs a conservator, | would recommend that
APS keep contact with him in the future to make sure that Mrs. Knott keeps her
commitments.
Diagnosis:
Axis I No Diagnosis: WNL
Recommendations:
1) These test results were fully discussed with Mr. Actis.
2) Recommend that APS maintain contact with him.
Thank you for the referral. If you have any further questions, please feel free to
contact me at (415) 833-3146.
Respectfully yours,
Cates \ VdZ,
Charles Vella, Ph.D.
NeuropsychologistPatient Charnes Acus
MR#: 2057007 C -
Page 6 C
MR#: 3057007
Trail Making Test; _ PartA, in seconds 89" 4th %tile Part B, in seconds
CD" ist %tile Oerrors (Visual difficulties) -
COWAT: Verbal Fluency 20 words 90th %tile
Animal Naming: 12 words 75th “tile
CVLT-2:
Raw/Standard Score (mean = 0, s.d. = 1)
+
Trial 1 . 4/ -5-
Trial 5 /
Trials 1-5 Total T Score 50 11 Long Delay Retention 2.5
Short Delay Free Recall 7/ 1.5 — Total Repetitions 7 5
Long Delay Free Recall 6/ 1 Total Intrusions 5
Long Delay Cued Recall 7 Total Acrass-List Intrs .
Semantic Clustering 1 . Total Cued Rec intr. -.5
Serial Clustering 5 Total Recall Discrim. 1.5
Recall from Primacy Area 1.5 / 50 Cued Recalll Discrim. 2 -
Recall from Recency Area-.5 / 35 Delayed Recall Discrm.2.5
Learning Slope 1-5 1 Total Recognition Hits 9 / 5
Learning Slope 1-2 1.5 Total Faise Positives 0/-1.5
Learning Slope 2-5 Total Recog Discrim. 1.5
Source Recog Discrim. Total Response Bias 1.5
Forced Choice Recog. 99EXHIBIT G fC C
DAVID J. FRIEDENBERG, ESQ.
SBN 25026
2171 Junipero Serra Blvd., Ste. 620
Daly City, CA 94014
Telephone: (650) 755-6622
Facsimile: (650) 755-4312
Attomey for Respondent
EVA KNOTT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
uo em ND NH Bh YY
IN RE REVOCABLE LIVING TRUST
11 || AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
12 | WILL DATED NOVEMBER 2, 2004
Case No. PTR-05-287341
SUPPLEMENTAL DECLARATION OF
HAROLD VINCENT McCARTHY
CAROL MITCHELL,
Petitioner,
v.
EVA KNOTT, Trustee and Beneficiary
17 | under the REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
18 | DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
19 | and NATALIE FERRERO, a minor and a
will and trust beneficiary,
Respondents.
22 I, HAROLD VINCENT McCARTHY, do hereby declare as follows:
23 ft 5. That attached hereto is a true copy of a Declaration signed by me under penalty of perjury
24 on January 9, 2005, regarding Charles Actis,.
25 || 6. On several occasions during the past year, Charles Actis told me that he wanted to leave
26 the bulk of his estate to his friend, Eva Knott. He stated that he had no wife or children
27 and no family members with whom he was close. When I suggested that he should try to
1
SUPPLEMENTAL DECLARATION OF HAROLD VINCENT MeCARTHYwe
wo OO NA HW kh YN
~~
= 6
C. C
make up with his family, he emphatically said "no" and that he "had experienced too
many problems with them".
7. As I recall, some of the problems Charles Actis related to me regarding his family
included the following:
a. That his mother and step-father had owned property in Italy and that when his
mother passed away, his half-brother sold the property and he (Charles) got
nothing. As he believed his half-brother had cheated him out of his inheritance,
he did not want to leave any of his estate to him or his children.
b. Charles stated that when he was hospitalized a few years ago, family members
tried to pressure him into selling his house, which he did not want to do. When he
retumed from the hospital, he found they had already hired a house painter and
gotten a dumpster fo clean out the house. He said he put a stop to it and was very
unhappy with the actions of his family, whom he believed were just waiting for
him to die in order to get his money..
c Charles stated that Eva Knott was a good friend and had been helpful and
considerate to him, whereas his family had not. In fact, he stated that he felt so
strongly that he wanted the bulk of his estate to go to Eva Knott instead of his
family, that he would consider marrying her if. necessary, to avoid the possibility
__ of his family contesting his Will.
Thave read the foregoing statement and declare under penalty of perjury under the laws of
the State of California that the matters herein are true and correct and that if called as a witness I
would so testify. Executed this Lb ey of May, 2005 ip San Francisco, CA.
2
SUPPLEMENTAL DECLARATION OF HAROLD VINCENT MeCARTHYEXHIBIT H fSinton Associates
PROTECTIVE SERVICES FOR SENTORS “
".G, Hox 160440, San Francisco, CA 94146-0490
3; Fax (415) 285-2428
. Simonassac_fiducia ryehotmail.com
Charles Actis
Case PCN-04-286737
At the request and introduction of Mr. Gregory O'Keeffe, | Barbara R. Simon,
interviewed the client, Mr. Charles Actis in his home on 1/25/2005, 1/28/2005, and
3/28/2005 and via telephone on 2/22/2005.
l reviewed Mr. Actis' ability to care for and provide for his food, clothing, shelter and
shield himself from undue influence, as well as his understanding of the nature of his
assets and personal wealth, and his accommodation for their protection.
During all of our sessions he was consistent with his story of how he became friends
with Ms. Eva Knott, how he lent her money, that he expected it to be paid back, and
how he feels about his family. Although there were slight variations in the recall of
dates and specific details, Mr. Actis was clear as to the ownership of his real and
personal property and showed forethought in providing for his financial protection and
well being. :
Mr. Actis provides for his care by accepting assistance with personal Hygiene, Nutrition,
Homemaking, from neighbors and Ms. Knott. His transportation to Doctors
appointments is arranged by Mr. Actis via telephone with San Francisco Paratransit.
Mr. Actis receives a Kaiser Home Nurse daily to change his bandages on his foot
wound caused by vascular disease and Diabetes. For Mobllity about the house he uses
@ can or walker and sits down (and scoots) to negotiate the stairs.
In my review of his medical conditions and recent history it is clear that Mr. Actis needs
support for his activities of daily living. He is aware of this his current situation and he
has clearly taken precautions and measures to secure both his personal and medical
care and full fill his social needs. He has several neighbors on his block that regularly
make social visits, bring him food on occasion, generally took out for him, and seek his
wisdom of years for their own problems. Ms. Knott visits daily, keeping his house,
driving him to the odd medical appointment, bringing him groceries, and cooking for
him. Additionally, she assists with his wound care several times a day supplementing
the
Preview
AUC San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Nov-14-2006 2:19 pm Case Number: PTR-05-287341 Filing Date: Nov-14-2006 2:18 Juke Box: 001 Image: 01597053 GENERIC PROBATE PLEADING IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC 001P01597053 Instructions: Please place this sheet on top of the document to be scanned.iC. C GEORGE KING (SBN 028951) F Fy KING, KING & FISHLEDER San Frartico Ba, MCU The 555 City Center Building my Superior Court 555 Twelfth Street, Suite 1440. Nov 14 2006 Oakland, California 94607 Telephone: (510) 844-3400 GORDON pagic, Facsimile: (510) 444-3401 BY IU, Clerk uty Clerk Attomeys for Respondent EVA V. KNOTT IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST CASE NO.: PTR-05-287341 AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, and WILL | EXHIBITS TO OPPOSITION TO DATED NOVEMBER 2, 2004, SUMMARY ADJUDICATION MOTION Date: November 28,2006 AND RELATED CROSS-ACTION. Time: 11:00 a.m. Room No.: 204 Filing Date: June 2, 2005 Judge: The Hon. John Dearman Trial Date: Not Assigned EXHIBIT “A” Relevant portions of Petitioner/Contestant Carol Mitchell’s points and authorities in opposition to Respondent Eva Knott’s motion for summary judgment. EXHIBITS “B” and “C” True and correct copies of the Will and Revocable Living Trust of Charles Actis executed on November 2, 2004. EXHIBIT “D* True and correct copy of the Declaration of Eva Knott. EXHIBIT “E” True and correct copy of the Declaration of nurse Chantay Allmond. EXHIBIT “F” True and correct copy of the neuropsychological report of Charles Actis written by Doctor Charles Vella of Kaiser Permanente, previously attached as Exhibit 3 to Respondent’s Memorandum of Points and Authorities in Response to Petition to Determine Validity of Purported Will and Trust. EXHIBIT “G” True and correct copy of the Supplemental Declaration of Harold Vincent McCarthy. EXHIBITS TO OPPOSITION 1EXHIBIT “H” EXHIBIT “I” EXHIBITS “J” EXHIBIT “K” EXHIBIT “L” EXHIBIT “M” EXHIBIT “N” EXHIBIT “O” EXHIBIT “P” EXHIBIT “Q” EXHIBIT “R” EXHIBIT “S” EXHIBIT “T” EXHIBIT “U” EXHIBIT “Vv” EXHIBIT “W” EXHIBIT “X” EXHIBITS TO OPPOSITION Cc True and correct copy of the Report of Barbara Simon, a professional fiduciary, previously attached as Exhibit 4 to Respondent’s Memorandum of Points and Authorities in Response to Petition to Determine Validity of Purported Will and Trust. aru and correct copy of the Declaration of nurse’s assistant Maria arillo. True and correct redacted copies of the deposition of David J. Friedenberg. True and correct copy of the Declaration of David J. Friedenberg. True and correct copy of the Declaration of Harold Vincent McCarthy. True and correct redacted copies of the deposition of Gregory P. O'Keeffe. True and correct copy of the will executed by Charles Actis on or about August 10, 2004. True and correct copy of the Certificate of Independent Review executed by attorney Gregory O’Keeffe on April 7, 2005. True and correct copy of the Registrar of Actions in San Francisco County Case PCN-04-286737. True and correct copy of Petitioner/Contestant Carol Mitchell’s Petition to Determine Validity of Will and to Impose Constructive Trust. True and correct copy of Petitioner/Contestant Carol Mitchell’s Objection to Probate of Will. True and correct copy of Petitioner/Contestant Carol Mitchell’s Will Contest. True and correct copy of this court’s order denying Respondent’s motion for summary judgment. True and correct copy of Probate Code section 21351(b)’s sample form for Certificate of Independent Review. True and correct copy of the Declaration of Harold Vincent McCarthy. True and correct copy of a letter from Dr, Harry Lew of Kaiser hospital San Francisco, previously marked as Exhibit 5 to Respondent’s Memorandum of Points and Authorities in Response to Petition to Determine Validity of Purported Will and Trust. True and correct redacted copies of the deposition of Eva V. Knott.27 28 C C EXHIBIT “Y” True and correct copy of the Supplemental Declaration of David J. Friedenberg. EXHIBIT “Z” True and correct redacted copies of the deposition Harold Vincent McCarthy. KK fMsystWPW13523-IExhibits to Motion. wpd EXINBITS TO OPPOSITION 3EXHIBIT A ftOe ow OH DH HW 2B WN Bw N NNN NN ND HB RR ee ee eo SX® Ss FREON FSGCERDR BEORE GS C Po Qo € C SPELLMAN & MITCHELL DEAN M. SPELLMAN, #060042 ROBERT B. MITCHELL, #074795 1850 Mt. Diablo Bivd., Ste. 670 Watnut Creek, Califomia 945964407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FORTHE COUNTY OF SAN FRANCISCO ESTATE OF: Case Number: PES 05-287457 CHARLES ACTIS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO Decedent RESPONDENT'S MOTION FOR SUMMARY JUDGMENT OR ALTERNATIVELY, SUMMARY ADJUDICATION OF ISSUES CAROL MITCHELL Date: March 8, 2006 Contestant Time: 11:00 a.m. Room No: 204 vs. Filing Date: June 2, 2005 dudge: The Honorable John Dearman EVA KNOTT, : Trial Date: Not Assigned Respondent, TABLE OF CONTENTS VINTRODUCTION 2.0... cc ccecc cece cece ec ence sens ennseceneees seeeees : i. BRIEF FACTUAL BACKGROUND A. The August 2004 Will ... 1, Vid MEMORANDUM OF POINTS AND AUTHORITIES It OPPOSITION TO RESPONDENT'S MOTION FOR SUMMARY JUDGMENT, etc, NOUMOAONN =wo BPI nA HW BF Wn NNN NN ND BM ee et ee eet Ss®*SerasreSvueresseaenuaatranrrs motion). F,_The Certificate of Independent Review Lastly, moving party argues that Contestant carries the burden of proof of undue influence due to the fact that a Certificate of Independent Review was executed. Moving party Is mistaken In that not onlyhas moving party failed to present evidence that the conditions of such Probate Code Section have been met, there Is a triable issue of fact as to the propriety of the offered Certificates of Independent Review (Exhibit 10 to moving papers). Probate Code §21351(b) provides that certain conditions be met to be an effective Certificate of Independent Review. Included as a condition is that the independent attorney attempt to determine if the intended consequences are the result of fraud, menace, duress, or undue influence. Moving Party fails to show exactly what facts the certifying attorney relied upon in executing the subject certificate, Additionally, and as Is evidenced by the accompanying Declaration of Robert B. Mitchell (Exhibit “C*, Section “Deposition of Attomey Gregory O'Keeffe") certain material facts were not known to the certifying attorney at the time of his execution of the subject Certificate including, but not limited to, the fact that decedent's August 2004 Will had been videotaped, that David Friedenberg had prepared all Deeds of Trust In connection with the $130,000.00 loan from decedent to Eva Knott and that such facts would have been relevant in his determination of undue influence, etc. Contestantis entitled to cross-examine attomey O'Keeffe at trial in order to show the Inadequacy of his efforts to determine the existence of undue influence, etc. as well as his ignorance of material facts relevant to the Issue of undue influence, a number of which were not to disclosed to him by attorney Friedenberg. Should it be determined that such efforts were insufficient, the court will invalidate such Certificate. Consequently, it Is too early in these proceedings to determine the adequacy of the subject Certificate and to determine who holds the burden of proof as to this issue. MEMORANDUM OF POINTS AND AUTHORITIES I OPPOSITION TO RESPONDENTS MOTION FOR SUMMARY JUDGMENT, ete,yo owt nN eB wn NNN NR Ye Pe Pe Pe Be Be ee oe eBSagrvgesngF 8seueonotanaans &Bneres consumes both this court's and this Contestant's time, Respondent's declaration along with the declaration of her counsel were offered In bad faith and for the purpose of delay and under Code Civ. Proc. §437c(/), this court should assess sanctions. In this regard, Contestant requests that Respondent and her counsel be ordered to pay within ten (10) . days of the hearing of this matter, the sum of $5,000.00. While such sum Is less than the reasonable amount of attomey’s fees for the time expended by Contestant's attomey In preparing opposition to this motion, such amount is sufficient to punish the Respondent and her counsel for such wronglul conduct... V, CONCLUSION ttis respectfully submitted that triable issues of fact do exist as to all issues sought to be adjudicated by Moving Party in this motion. Conflicting evidence exists as to Mr. Actis’ mental state and the presence of undue influence (Moving Party's Issues 1, 2, 3, & 4), Funhermore, the status of Eva Knott as Mr Actis' caregiver and the validity of & Certificate of Independent Review (Moving Party's Issues 5 & 6) are issues that must be reserved for trial, Consequently, this Contestant respectfully requests that all motions herein be dented and that this court assess sanctions In the sum of $5,000.00 against both Moving Party and her attomey David Friedenb: Dated: February 1S 2008. Yodo frectmncs Attomey for Contestant CAROL MITCHELL MEMORANDUM OF POINTS AND AUTHORITIES 1N- OPPOSITION TO RESPONDENT'S MOTION FOR: ‘SUMMARY JUDGMENT, ete, 20EXHIBIT B fLAST WILL AND TESTAMENT OF CHARLES ACTIS I, CHARLES ACTIS, a resident of the City of San Francisco, County of San Francisco, State of California, being of: sound and disposing mind, memory and understanding, and not acting under duress, menace, fraud or undue influence of any person whomsoever, do > hereby make, publish and declare this to be my Last Will and Testament, in the following mennct: FIRST: Thereby revoke all other and former Wills and Codicils to Wills by me made, . / SECOND: I hereby direct my Executor, as soonas sufficient funds are available, and as soon after my demise as can lawfully and conveniently be done, to pay all of my just debts and funeral expenses. . THIRD: I declare that I am a single man, and that I have no children living or deceased, My closest living relative is my half brother, MARCO D. FERRERO. FOURTH: I give, devise and bequeath my estate of every kind and description to the Trustee of my Revocable Living Trust dated November 2, 2004 to be distributed pursuant to the provisions as set forth therein. Should the Trust, for any reason, be declared invalid, my estate shall be distributed as follows: A. ONE HUNDRED THOUSAND ($100,000) DOLLARS to my Trustee hereinafter named for the benefit of the children of, my nephew, MARCO FERRERO, JR. or the issue of any deceased child living at the time of. my death, to be held and distributed as follows:Cc. . C My “Trustee shal! divide said sum of One Hundred Thousand Dollars _ ($100,000) into equal accounts for each of the children of my nephew, MARCOFERRERO, JR., living at the time of ‘my death or any issue by right of representation of any deceased child, My Trustee shall pay to, or on account of each child’so much of the net income as the Trustee in its absolute discretion, considers necessary for educational purposes, faking into consideration the reasonable needs of sa child and the availability of other funds for said purpose. " Educational purposes is meant to include vocational, undergraduate, and graduate studies if, in the Trustee’s discretion, they are pursued to the advantage of the beneficiary and may include living expenses reasonably related to the beneficiaries’ studies, Any undistributed net income shall be accumulated and added to the principal. Upon each child, or issue of a deceased child by right of representation, attaining age twenty-one (21) years, the Trustee shall pay and distribute to such child his or her then balance of their Trust Estate. If any child shall die before attaining age twenty-one @1) years, without leaving any issue surviving, then said child’s share shall be distributed to said child’s brothers and/or sisters. Itis expressly understood that the net income derived from this Trust estate herein created, and the principal of this Trust Estate are intended for the sole and individual use and enjoyment of the beneficiaries of this Trust, and saidC C beneficiaries shall not in any event, either jointly or severally, assign, sell, _ transfer, convey, pledge, hypothecate, impair, or otherwise encumber their interest in this Trust, nor shall the principal of said Trust Estate, nor any part thereof, be liable for: any debt or obligation. B. Al the rest, residue and remainder of my estate of every: kind and description, and wherever located, is to go to my friend, EVA KNOTT. ° , Il IfEVA KNOTT should predecesse me, then sai? remainder shal be ‘paid to ‘my Trustee hereinafter named to be held and distributed equally for the benefit of the children ofmy nephew, MARCO FERRERO, JR., as hereinabove set forth. FIFTH: I declare that except as provided herein, I have intentionally omitted to provide herein for any of my heirs living at the time of my death, If any beneficiary under this Will shall in any manner contest or attack this Will or any ofits provisions, then in such event any share or interest in my estate given to such contesting beneficiary under this Will is hereby revoked, and to such persons so contesting or objecting, I give the sum of ONE DOLLAR ($1.00) and no more. SIXTH: Thereby nominate and appoint EVA KNOTT, or if she is unable or unwilling to act, the BANK OF AMERICA, as the Trustee to administer any Trust created herein, . both to serve without bond. SEVENTH: [hereby nominate my friend, EVA KN! OTT, as Executor of this my Last Will and Testament, to serve without bond. If she is unwilling or unable to serve, I hereby nominate BANK OF AMERICA., also to serve without bond,~ EIGHTH: _ Itis my request that DAVID J. FRIEDENBERG, ESQ. be appointed attorney for the probate of my estate. IN WITNESS WHEREOF, I sign, seal, publish and declare this as my Last Will and Testament in the presence of the persons witnessing it at my request, this ant day of November, 2004 at Daly City, California. " Onthe date written below, CHARLES ACTIS declared tous, the undersigned, that this instrument, consisting of four (4) pages, including this page signed by us as witnesses, after said Will was read to him in our presence, that this was his Last Will and Testament and requested us to act as witnesses to it. He thereupon signed this Will in our presence, all of us ‘being present at the same time. We now, at his request, in his presence and inthe presence of "each other, subscribe our names as witnesses. “ We declare under penalty of perjury that the foregoing is true and correct. Executed on fn 2 2004 at Daly City, California. : “ole, J hes, 2171 Junipero Serra Blvd. #620 Daly City CA 94014 Cal evedhn, Junipero Serra Blvd. #620 Daly City CA 94014EXHIBIT C /REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS This agreement made and entered at Daly City, California this a ay of November, 2004, by CHARLES ACTIS, hereinafter referred to as "Trustor" and "Trustee". 1. TRUST PROPERTY Property subject to this Trust instrument is listed in Schedule A attached hereto and is referred to as the "Trust Estate" and shall be held, administered and distributed in accordance with this instrument. 2. AMENDMENT Trustor may at any time during his lifetime amend any of the terms of this instrument by an instrument in writing signed by him and delivered to the Trustee. No Amendment shall substantially increase the duties or liabilities of the Trustee or change the Trustee compensation without the Trustee's consent, nor shall the Trustee be obligated to act under an Amendment unless the Trustee accepts it. 3. REVOCATION The Trustor may at any time revoke this instrument in whole or in part by an instrument in writing delivered to the Trustee. If the Trustor revokes this instrument, the Trusteeshall deliver promptly to the Trustor, or the designees of all of the designated portion of the Trust assets as set forth in said instrument, with an accounting of the Trustee's acts since the preceding accounting, 4. PAYMENTS TO TRUSTOR DURING HIS LIFETIME Commencing as of the date of this Agreement, the Trustee shall pay to, or shall apply for the benefit of the Trustor during his lifetime, in monthly or other periodic installments, so much of the net income of the Trust Estate as the Trustee shall determine necessary, for the care, support, well being and enjoyment of Trustor. The Trustee shall also pay overand deliver such portions of the principal of the Trust Estate as the Trustor from time to time requests by written notice, or as determined necessary by the Trustee in the event the income be insufficient to provide for the Trustor’s proper health, education, support, maintenance, comfort, and welfare, in accordance with his accustomed manner of living at the date of this instrument, without taking into consideration funds and assets available to him held free of this trust. The net income not expended or distributed by the Trustee shall be added to the Trust Estate and reinvested as an integral part thereof. 5. INCAPACITY OF TRUSTOR If at any time, either in the Tristee's discretion, or as certified in writing by two licensed physicians not related by blood or marriage to Trustor or any beneficiary of this Trust,Trustor has become physically or mentally incapacitated, whether or not a court of competent jurisdiction has declared him incompetent or mentally ill or has appointed a conservator, the Trustee shall pay to or apply for the benefit of Trustor, such sums in the Trustee's discretion needed for the proper health, support, maintenance, comfort, and welfare of Trustor in accordance with his accustomed manner of living at the date of this instrument, until the Trustor, either in the Trustee's discretion, or as certified by two licensed physicians not related by blood or marriage to Trustor or to any beneficiary of this Trust, is again able to manage . his own affairs, or until the death of Trustor. 6. PAYMENT TO OTHERS The Trustor may at any time direct the Trustee in writing to pay single sums or other periodic payments out of the Trust Estate to any other person or organization. The Trustor’s power to so direct the Trustee shall be personal to the Trustor, except that this power may be exercised by the Trustor's conservator to the extent that payments to one or more of the conservatee's issue qualify for the annual federal gift tax exclusion. 7 WITHDRAWAL BY TRUSTOR The Trustor shall have the right to direct the payment of income and principal and the right to withdraw any part or all of the principal of the Trust Estate during his lifetime by a written instrument signed by him and delivered to the Trustee.8. TERMINATION OF TRUST ON DEATH OF TRUSTOR On the death of Trustor the entire remainder of the Trust Estate and all of the assets therein shall be distributed as follows: A. ONE HUNDRED THOUSAND ($100,000) DOLLARS to my alternate Trustee hereinafter named for the benefit of the children of my nephew, MARCO FERRERO, JR. or the issue of any deceased child living at the time of my death, to be held and distributed as follows: 1, My Trustee shall divide said sum of One Hundred Thousand Dollars ($100,000) into equal accounts for each of the children of my nephew, MARCO FERRERO, JR, living at the time of my death or any issue by right of representation of any deceased child. My Trustee shall pay to, or on account of each child so much of the net income as the Trustee in its absolute discretion, considers necessary for educational purposes, taking into consideration the reasonable needs of said child and the availability of other funds for said purpose. Educational purposes is meantto include vocational, undergraduate, and graduate studies if, in the Trustee’s discretion, they are pursued to the advantage of the beneficiary and may include living expenses reasonably related to the beneficiaries’ studies. Any undistributed net income shall be accumulatedand added to the principal. 3. Upon each child, or issue of a deceased child by right of Tepresentation, attaining age twenty-one (21) years, thé Trustee shall pay and distribute to such child his or her then balance of their Trust Estate. 4, If any child shall die before attaining age twenty-one (21) years, without leaving any issue surviving, then said child’s share shall be distributed to said child’s brothers and/or sisters, 1. It is expressly understood that the net income derived from this Trust estate herein created, and the principal of this Trust Estate are intended for the sole and individual use and enjoyment of the beneficiaries of this Trust, and said beneficiaries shall not in any event, either jointly or severally, assign, sell, transfer, convey, pledge, hypothecate, impair, or otherwise encumber their interest in this Trust, nor shall the principal of said Trust Estate, nor any part thereof, be liable for any debt or obligation. B. All the rest, residue and remainder of my estate of every kind and description, and wherever located, is to go to my friend, EVA KNOTT. I. IfEVA KNOTT should predecease me, then said remainder shall be paid to my alternate Trustee hereinafter named to be held and distributed equally for the benefit of the children of my nephew, MARCO FERRERO, JR., as hereinabove set forth.9 RESIGNATION OR REMOVAL OF TRUSTEE During the lifetime of the Trustor, Trustee may resign at any time by giving the Trustor at least thirty (30) days written notice delivered to the Trustor in person or by certified mail to his last known address, and the Trustor may appoint a successor Trustee or Co-Trustee at any time thereafter, Trustor’s friend, EVA KNOTT, is appointed as successor Co-Trustee, or, if she is unable or unwilling to act, the BANK OF AMERICA, 10. POWERS AND DISCRETIONS OF THE TRUSTEE / The Trustee has been granted certain powers, authority and discretion with respect to the Trust created hereunder. To supplement these, the Trustor hereby authorizes and empowers the Trustee, including the original and any successor, as follows: The Trustee is authorized to retain in the Trust, for such time as it may deem advisable, any property received by it, hereunder, whether or not of the character Permitted by law for the investment of trust funds. The Trustee shall have the power, with respect to the property of the Trust Estate or any part thereof, and upon such terms and in such manner as may be deemed advisable, to sell, convey, and to lease for terms within or beyond the term of this Trust and for any purpose, including exploration for and removal of gas, oi] and other hypothecate by mortgage, deed of trust, pledge or otherwise, to carry insurance of such kinds and in such amounts as the Trustee may deem advisable, at the expense of the Trust; to compromise or otherwise adjust any claims against or in favor of the Trust, to commence or defend such litigation with Tespect to the Trust, or any property of the Trust Estate as it may deem advisable, at the expense of the Trust; to invest or reinvest the trust funds in such property as the Trustee may deem advisable, whether or not of the character permitted by law for the investment of trust funds; and with respect to securities held in the tnust, to vote, give proxies and pay 6assessments or other charges, to participate in foreclosures, reorganizations, consolidations, mergers and liquidations, and incident thereto, to deposit securities with and transfer title to any protective or other committee upon such terms as the Trustee may deem advisable, and to exercise or sell stack subscription or conversion rights; and the Trustee shall have such additional Powers as may now or hereafter be conferred upon it by law or as may be necessary to enable the Trustee to administer this Trust in accordance with the. provisions of this Agreement, subject to any limitations thereof that may be provided for herein. : 11, MARITAL STATUS AND CHILDREN Trustor is a single man and has no children living or deceased. 12, | GENERAL PROVISIONS A. The Trustee is not required to make reports to any Court, but the records pertaining to the Trust Estate shall be open at all reasonable times to inspection by any beneficiary of the Trust or by the representative of any such person, and any such persons shall have the right to demand annual accounting, showing the administration of the Trust, estates, and their conditions. B. The Trustee shalt pay out of principal or income, as it may elect, or partially out of each, in such shares as it may determine, property taxes, assessments, charges, the fees of attomeys engaged by it, the reasonable compensation of the Trustee, (a) for ordinary services, and (b) for any extra-ordinary services performed by it and any other expenses incurred in the administration or protection of the Trust. The income remaining after such expenditures asthe Trustees shall elect to pay therefrom, shall constitute net income. c. The Trustee shall have full discretion to allocate the shares hereunder, as to any assets which may be distributed to the Trustee pursuant to the Last Will of the Trustor. D. If any provision of this Agreement shall be held by a Court of competent jurisdiction to be invalid, the remaining provisions hereof shall continue to be fully effective. E. Any Trustee shall be entitled to reasonable fees. THIS AGREEMENT shall be binding upon the heirs, executors, and administrators of the Trustor and upon the beneficiaries of the Trust created hereunder. IN WITNESS WHEREOF, the party hereto has executed this Trust Agreement on the day and date hereinabove set forth. Dated: November _2~__, 2004 Pade Feb hap. £ Baba CHARLES ACTI$, Trustee! CHARLES ACTIS, ‘Prustor "State of California) dss. County of San Mateo ) On this thednef day of November, 2004, before me, the undersigned Notary Public, Personally appeared CHARLES ACTIS, personally known to me or proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged that he executed the same in his authorized capacity and that by his signature on the instrument the person or the entity upon behalf of which the person acted, executed the instrument. IN WITNESS WHEREOF, I hereunto set my hand and official seal. os SEAL: NOTARY PUBLIC ~ SOFIAG. YE! 5a coc f i u Contracostacouty, LX By Comm. Exp. Dec 18,2087‘EXHIBIT A ATTACHMENT TO REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 7, 2004 I. . Residence located at 1601 Ulloa Street, San Francisco, CA 94116 Legally described as follows: BEGINNING at the point of intersection of the southerly line of Ulloa Street with the westerly line of 17" Avenue; running thence westerly along said line of Ulloa Street 32 feet 6 inches; thence at a right angle southerly 100 feet; thence at a right angle easterly 32 feet 6 inches to the westerly line of 17" Avenue; thence northerly along said line of 17* Avenue 100 feet to the point of beginning. BEING a portion of Outside Land Block No. 1190. AP.N.: ‘Block 2418 Lot 001 2. All the household furniture and furnishings found in the real property located at 1601 Ulloa Street, San Francisco, CA 94116 e 3. Bank of America, Taraval Branch, San Francisco, CA; Acct. No. 02586-04951 4, Washington Mutual Bank, Acct. Nos. 866-886234-1 & 866-1148064-3 5. Promissory Note from Eva Knott dated July 22, 2003 secured by Deed of Trust 10EXHIBIT D fou ea NR DN HW B WY & Non eee BNRRRRRSRSRERDREKFESB oS DAVID J. FRIEDENBERG, ESQ. SBN 25026 2171 Junipero Serra Blvd., Ste. 620 Daly City, CA 94014 Telephone: (650) 755-6622 Facsimile: (650) 755-4312 Attorney for Respondent EVA KNOTT SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST Case No, PTR-05-287341 AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 DECLARATION OF EVA KNOTT IN OPPOSITION TO PETITION TO - DETERMINE VALIDITY OF WILL AND CAROL MITCHELL, TRUST Petitioner, ve EVA KNOTT, Trustee and Beneficiary under the REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor and a will and trust beneficiary, Respondents. ) ) ) ) ) ) 2 ) ) 2 ) ) 2 ) ) ) ) ) ) ) ) ) I, EVA KNOTT, do hereby declare as follows: That I first met Charles Actis approximately four (4) years ago when I was driving a neighbor of his, Lillian Kearney, who resided at 2454 17" Avenue, San Francisco, CA. lama licensed home health care provider and Lillian was one of my clients. One day when I was visiting Lillian, Charles Actis rang the doorbell and brought over 2 bags of cucumbers, one for each of us. I was informed that Lillian and Charles were good friends and frequently spoke at night. exuipir 1 DECLARATION OF EVA KNOTT IN OPPOSITION‘ uo eo N DH H hk WY N — mete on DA UH fF WY NY SK OS 19 C. C That when I visited Lillian Kearney, which was four to five days per week, I often saw Charles Actis and we would wave and say "hello" to each other. One day I was driving Lillian to the hairdresser and she asked me if I would drive Charles to the grocery store, which I did, [also drove him to the store several times thereafter. That about one year after meeting Charles Actis he asked if I would wash his clothes and offered to pay me for doing so. I instead suggested he hire someone four times per week to do his laundry, cleaning, drive him to the store and attend to his other needs. He told me he could not afford to do that. Charles was very nice and I felt sorry for him. I would drive him to the store and do some laundry for him about once per month. The only money I received from Charles were reimbursements for gas or laundry detergent or housecleaning expenses. That about two years ago Charles Actis told me that he had $300,000 in the bank and was afraid it would be spent before he died and that his family would put him in a nursing home. He complained that he was getting only 1% interest from the bank. Several months later, when I was going through a divorce and needed cash funds to buy out my husband’s interest in our property, I told Charles that I would pay him 3% interest, as opposed to the 1% he was getting from the bank. Asa result, he made me a loan of $130,000 in July, 2003. Unfortunately, the Deed of Trust securing the note had a typographical error which was later corrected. The note was paid off in full plus interest in January, 2005. That on numerous occasions, Charles Actis frequently told me that he was afraid his family would try to get control over him and put him in a nursing home. That in mid-2004 Charles Actis had foot surgery. Before he went to the hospital, Charles said that he needed someone to clean his house. At his request, I hired someone to clean his house on that occasion and he reimbursed me. I did not get any funds for myself except for reimbursements on groceries or other items I purchased for him and the other reimbursements mentioned above. Ww Ww 2 DECLARATION OF EVA KNOTT IN OPPOSITIONow oe NA UH fF WY NH = nN - meme met BNRRRBBRBSEGERBEAABDEBHEAS C- C That when I was out seeing other clients I frequently stopped in to see Charles for short visits of usually 5-10 minutes. That in mid-2004, Charles gave me an envelope from Kaiser Hospital, which contained the results from the mental competency examination he had requested and taken at Kaiser. He told me he was afraid of and didn’t trust his family (half-brother and children), He frequently said he did not want them to get his money or control over him. He even asked me to marry him and said "if you were my wife, you could take care of me." I put him off and did not accept the proposal, although we became very good friends. That approximately one year ago, Charles Actis asked me to take him to an attorney to review the Kaiser report and advise him regarding his estate. When Charles informed me he wanted to leave his estate to me, I told him he really should Jeave it to his family. He emphatically stated that he did not want to leave anything at all to his half-brother or his half- brother’s children. The last six months of Charles Actis’ life, he frequently asked me to have dinner with him. When I went éver, I cooked and we had dinner, I cleaned up and went home. Although I was licensed home care giver, I never took on Charles Actis as a client nor accepted money from him except for reimbursements of expenses as stated above, or the loan, as stated above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and if called upon to testify in a court of law I could and would so testify. Executed this_Z/_ day of June, 2005 in Daly City, California. EVA KNOTT 3 DECLARATION OF EVA KNOTT IN‘OPPOSITIONEXHIBIT E |-DAVID J. FRIEDE_ :G, ESQ. C s(Bhr SBN 2502: 2171 Junipero Serra Blvd., Ste. 620 Daly City, CA 94014 Telephone: (650) 755-6622 Facsimile: (650) 755-4312 Attomey for Respondent EVA KNOTT SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 Case No. PTR-05-287341 DECLARATION OF CHANTAY ALLMOND CAROL MITCHELL, Petitioner, AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor anda wui aid trust beneficiary, : Kespondents, Le LO TI, CHANTAY ALLMOND, do hereby declare as follows: 1. ThatI ama registered nurse, 2. That approximately one year ago I was assigned by Kaiser Hospital as a “home care nurse” for Charles Actis, [ went to his residence in San Francisco almost daily to treat him for his foot. This continued until Mr. Actis went back to Kaiser Hospital in April, 1 . DECLARATION OF CHANTAY ALLMONDthe State of California that the matters herein are true and correct and that if called as a witness I would so testify, Executed this | That on num” occasions Fhad lunch with Mr. X. Jo told me that he did not want anything to do with his family and did not want to leave them anything. He told me that his brother was a "liar" and that he had previously given his family money for his care and he felt they mistreated him. He was concemed that if something happened to him Eva would not be in charge of him and his Property. Itis my personal opinion that at all times Charles Actis seemed to know what he was doing and was able to make his own decisions regarding his personal care and his Property, 8 y of Al€2005 in Daly City, CA. 2 _ DECLARATION OF CIANTAY ALLMONDEXHIBIT F |C- Cc. i . Kaiser Permanente Medical Center Department of Psychiatry4141 Geary Boulevard San Francisco, CA 94118 (418) 833-3146 NEUROPSYCHOLOGICAL REPORT This information is disclosed to you from records whose confidentiality is protected by Federal law, Federal reguiation (42 CRF Part 2) prohibit you from making any further disclosures of i without specific written consent of the Person to whom # pertains, or as otherwise permitted by such feguiations. A. general authorization for the release of medical or other information is NOT sufficient for this purpose. r Patient: Charles Actis MR #: 3057007 Date of Birth: Mar 7, 1924 . Age: 80 Education: : High School “Occupation: retired waiter Handedness: Right Date of Report: 06-07-2004 Tests/Procedures Administered: Clinical Interview Review of Medical Records Cognistat Problems in Everyday Living (PEDL): California Verbal Learning Test-ll, Short Form (CVLT-2} Trail Making Test (TMT) Controlied Oral Word Association Test (COWAT)Patient’ Charles Actis MR#: 3057007 C C Page 2 Problems in Everyday Living Test (PEDL) Norms Used: Héatori Comprehensive Nomis for an Expanded Halstead-Reitan * Dates of Testing: 3/24/04 Referral Source: Pam Hatayma, LCSW, Home Health, Kaiser Permanente Medical Center, San Francisco Referral Reason: Mr. Actis is a 80 year-old, Caucasian individual who was referred by Pam Hatayma and APS (Carrie Wong) for concerns about undue influence and possible financial abuse, filed in 11/03. Baseline neurapsychological screening was requested. Relevant History: os Mr. Actis is a 80 year-old, Caucasian man, of Italian American descent, who acknowledged giving money to his friend Eva Knott because she had helped him over the years and that APS was concemed that she was taking advantage of him. Eva is “in the business_of helping old people. "He has known her for a year and a half. He gave her $130,000 as a loan for 2 years. He owns his own home and still has $300,000 in the bank. He has family in Italy, but does not trust them. He would like "to prove that he is not dumb, and wants to make a will.” He believes his brother will fight his will. He does not want his brother to have his estate, “he made me feel like a beggar.” He would like Eva as his conservator. She writes his checks because he cannot see very well. He receives $177 in Social Security, and $188 in pension. He has no mortgage payments. He states that if Eva continues to properly care for him, he will leave his estate to her. He was bom in San Francisco. At age 32 he went to Italy for 20 years, where he was an electrician. When he retumed to the US, he worked in a laundry and then as a waiter. He retired at 62, and has never been married. He never took a vacation. . He has difficulty writing, but can read, He has significant visual difficulties due to retinitis due to Diabetes. He uses a magnifying glass to read the newspaper. Medically, he has the following diagnoses: diabetic retinopathy, congestive heart failure, diabetes type 2, atrial flutter, diabetic nephrotic syndrome, diabetic renal failure, osteomyelitis, peripheral neuropathy, peripheral vascular disease, heart failure, arteriosclerosis, angina. He has a pacemaker. He has had a coronary artery bypass graft in 1989. He is on Lisinopril and furosemide.Patient: Charles Actis MR#: 3057007 C€ C Page 3 Carrie Wong, MSW, of APS, administered a MMSE to Mr. Actis, He scored 20/30 * She states that Mr.‘Actis gave an unsecured toarrof $4 Eva Knott, the horig Garé agency owner for Bay Aréa Hoine Care Provider. He plans to make’ her his DPOA. APS sees her as uncooperative. He is dependent on her to maintain his independence. APS requests a competency evaluation. Observations/Test Behavior: This is a neatly dressed and groomed man, who arrived on time for his . Scheduled appointments. He was pleasant, fr'sndly and quite cooperative with all the administered procedures. Mood was normal during the clinical interview; affect was normal. There was no indication of overt depressive symptomatology. Speech was fluent and understandable with no evidence of impairment in expression or comprehension. He was able to provide a detailed sequential history and respond appropriately to questions. Abstractive ability and judgment appeared to be within the normal range. Mr. Actis was oriented toward person, place and time. Thought content was logical, coherent and rational. There was no evidence of auditory or visual hallucinations, suicidal or paranoid ideation. Mr. Actis appeared to exert good effort during testing. Test results are considered to accurately represent his current abilities in the areas measured, He clearly had some visual difficulties on the visual measures like the TMT. Cognitive status is discussed extensively below. All of the Cognitive measures were administered by Brac Selph, the Neuropsychology Service testing technician. Testing Results: Cognitive: General Status: Mr. Actis performed normaily on the COGNISTAT. Orientation, Attention, Language, Constructional Ability, Calculation, and Reasoning were ail within the normal range. Naming and Block design were normal. Similarities and Judgment were normal. Attention and Concentration: On a measure of visual attention and scanning (TMT - Part’A), the score fell in the mildly impaired range (4th %tile), due to visua! acuity difficulties (diabetic retinopathy).Patient: Charles Actis . MR#: 3057007 C C ‘ Page 4 Memory: The GV nemory. 8s né ea jeaming.and memory. - ..: functioning:(s ronal: M Actis recalled 4 of the 9 Words on thé first trial of List A, indicating an impairment in auditory attention span. By the fourth learning trial, his recall had improved to 5 out of 9.words, a performance that was mildly impaired (z score = -1.5). The across-trial recall consistency was normal, indicating a normal ability to maintain a leaming plan. His use of semantic categories appears to enhance retrieval, given that cued recall is better than free recall. Both short and long delay free recall were normal (LD, z score =1; S$D,z score = 1.5), indicating a normal rate of forgetting of verbal material. He has both normal retention and free recall levels, similar to individuals with normal encoding ability. He used semantic clustering (the use of category structure), the most effective leaming strategy (z score = 1), a finding correlated with effective memory functioning. On a measure of confabulation elicited in the delayed cued recall condition (Cued Recall Discriminability) he was at a standard score of 2, revealing normal retrieval ability. His recognition ability was normal (z score = 1.5) on Recognition Discriminability, the best overall measure of recognition ability. The normal performance on long delay free recall and recognition measures reveals normal memory and leaming ability. Language Ability: Spontaneous speech was fluent and understandable, with no evidence of impairment in expression or comprehension. He was able to comprehend test instructions and interview questions with no apparent difficulty. Phonemic fluency was measured in the high average range (90th %tile). Semantic (category) fluency was measured in the high average range (75th %tile, on Animal Naming). Executive Functioning: On tests designed to evaluate the ability to monitor one's actions, inhibit overlearned behaviors, benefit from immediate feedback, and shift between conceptual sets (attend to more than one aspect of the environment simultaneously and to shift from one aspect to another), scores fell in the normal range. On a visual/motor measure of the ability to shift mental set (Trail Making Test - Part B), he was unable to do because of his visual difficulty. The Problems of Everyday Living Test, a measure that is predictive of the ability to live independently, was in the normal range.reaver. wines MR#: 3657007 . Page 5 € € , , Mr. Actis i82,B0. year old man who recently loaned a caretaker $130, 000. The: “ currént assessiment reveals that his cognitive ability is clearly in the normal: rangé, He clearly has the intellectual ability to make an appropriate loan. Itis also clear that he has lived alone his entire life, While is clearly competent to make decisions, his emotional isolation could make him more susceptible to financial abuse. While I do not believe he needs a conservator, | would recommend that APS keep contact with him in the future to make sure that Mrs. Knott keeps her commitments. Diagnosis: Axis I No Diagnosis: WNL Recommendations: 1) These test results were fully discussed with Mr. Actis. 2) Recommend that APS maintain contact with him. Thank you for the referral. If you have any further questions, please feel free to contact me at (415) 833-3146. Respectfully yours, Cates \ VdZ, Charles Vella, Ph.D. NeuropsychologistPatient Charnes Acus MR#: 2057007 C - Page 6 C MR#: 3057007 Trail Making Test; _ PartA, in seconds 89" 4th %tile Part B, in seconds CD" ist %tile Oerrors (Visual difficulties) - COWAT: Verbal Fluency 20 words 90th %tile Animal Naming: 12 words 75th “tile CVLT-2: Raw/Standard Score (mean = 0, s.d. = 1) + Trial 1 . 4/ -5- Trial 5 / Trials 1-5 Total T Score 50 11 Long Delay Retention 2.5 Short Delay Free Recall 7/ 1.5 — Total Repetitions 7 5 Long Delay Free Recall 6/ 1 Total Intrusions 5 Long Delay Cued Recall 7 Total Acrass-List Intrs . Semantic Clustering 1 . Total Cued Rec intr. -.5 Serial Clustering 5 Total Recall Discrim. 1.5 Recall from Primacy Area 1.5 / 50 Cued Recalll Discrim. 2 - Recall from Recency Area-.5 / 35 Delayed Recall Discrm.2.5 Learning Slope 1-5 1 Total Recognition Hits 9 / 5 Learning Slope 1-2 1.5 Total Faise Positives 0/-1.5 Learning Slope 2-5 Total Recog Discrim. 1.5 Source Recog Discrim. Total Response Bias 1.5 Forced Choice Recog. 99EXHIBIT G fC C DAVID J. FRIEDENBERG, ESQ. SBN 25026 2171 Junipero Serra Blvd., Ste. 620 Daly City, CA 94014 Telephone: (650) 755-6622 Facsimile: (650) 755-4312 Attomey for Respondent EVA KNOTT SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO uo em ND NH Bh YY IN RE REVOCABLE LIVING TRUST 11 || AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND 12 | WILL DATED NOVEMBER 2, 2004 Case No. PTR-05-287341 SUPPLEMENTAL DECLARATION OF HAROLD VINCENT McCARTHY CAROL MITCHELL, Petitioner, v. EVA KNOTT, Trustee and Beneficiary 17 | under the REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS 18 | DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary 19 | and NATALIE FERRERO, a minor and a will and trust beneficiary, Respondents. 22 I, HAROLD VINCENT McCARTHY, do hereby declare as follows: 23 ft 5. That attached hereto is a true copy of a Declaration signed by me under penalty of perjury 24 on January 9, 2005, regarding Charles Actis,. 25 || 6. On several occasions during the past year, Charles Actis told me that he wanted to leave 26 the bulk of his estate to his friend, Eva Knott. He stated that he had no wife or children 27 and no family members with whom he was close. When I suggested that he should try to 1 SUPPLEMENTAL DECLARATION OF HAROLD VINCENT MeCARTHYwe wo OO NA HW kh YN ~~ = 6 C. C make up with his family, he emphatically said "no" and that he "had experienced too many problems with them". 7. As I recall, some of the problems Charles Actis related to me regarding his family included the following: a. That his mother and step-father had owned property in Italy and that when his mother passed away, his half-brother sold the property and he (Charles) got nothing. As he believed his half-brother had cheated him out of his inheritance, he did not want to leave any of his estate to him or his children. b. Charles stated that when he was hospitalized a few years ago, family members tried to pressure him into selling his house, which he did not want to do. When he retumed from the hospital, he found they had already hired a house painter and gotten a dumpster fo clean out the house. He said he put a stop to it and was very unhappy with the actions of his family, whom he believed were just waiting for him to die in order to get his money.. c Charles stated that Eva Knott was a good friend and had been helpful and considerate to him, whereas his family had not. In fact, he stated that he felt so strongly that he wanted the bulk of his estate to go to Eva Knott instead of his family, that he would consider marrying her if. necessary, to avoid the possibility __ of his family contesting his Will. Thave read the foregoing statement and declare under penalty of perjury under the laws of the State of California that the matters herein are true and correct and that if called as a witness I would so testify. Executed this Lb ey of May, 2005 ip San Francisco, CA. 2 SUPPLEMENTAL DECLARATION OF HAROLD VINCENT MeCARTHYEXHIBIT H fSinton Associates PROTECTIVE SERVICES FOR SENTORS “ ".G, Hox 160440, San Francisco, CA 94146-0490 3; Fax (415) 285-2428 . Simonassac_fiducia ryehotmail.com Charles Actis Case PCN-04-286737 At the request and introduction of Mr. Gregory O'Keeffe, | Barbara R. Simon, interviewed the client, Mr. Charles Actis in his home on 1/25/2005, 1/28/2005, and 3/28/2005 and via telephone on 2/22/2005. l reviewed Mr. Actis' ability to care for and provide for his food, clothing, shelter and shield himself from undue influence, as well as his understanding of the nature of his assets and personal wealth, and his accommodation for their protection. During all of our sessions he was consistent with his story of how he became friends with Ms. Eva Knott, how he lent her money, that he expected it to be paid back, and how he feels about his family. Although there were slight variations in the recall of dates and specific details, Mr. Actis was clear as to the ownership of his real and personal property and showed forethought in providing for his financial protection and well being. : Mr. Actis provides for his care by accepting assistance with personal Hygiene, Nutrition, Homemaking, from neighbors and Ms. Knott. His transportation to Doctors appointments is arranged by Mr. Actis via telephone with San Francisco Paratransit. Mr. Actis receives a Kaiser Home Nurse daily to change his bandages on his foot wound caused by vascular disease and Diabetes. For Mobllity about the house he uses @ can or walker and sits down (and scoots) to negotiate the stairs. In my review of his medical conditions and recent history it is clear that Mr. Actis needs support for his activities of daily living. He is aware of this his current situation and he has clearly taken precautions and measures to secure both his personal and medical care and full fill his social needs. He has several neighbors on his block that regularly make social visits, bring him food on occasion, generally took out for him, and seek his wisdom of years for their own problems. Ms. Knott visits daily, keeping his house, driving him to the odd medical appointment, bringing him groceries, and cooking for him. Additionally, she assists with his wound care several times a day supplementing the