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Oct-03-2006 9:33 am
Case Number: PTR-05-287341
Filing Date: Sep-27-2006 9:32
Juke Box: 001 Image: 01556180
MEMORANDUM OF POINTS AND AUTHORITIES
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC
001P01556180
Instructions:
Please place this sheet on top of the document to be scanned.Nn an eo Wn
Cc
SPELLMAN & MITCHELL
DEAN M. SPELLMAN, #060042
ROBERT B. MITCHELL, #074795
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
D
San Francisco County Superior Court
SEP 2 7 2006
GORDON KI
rk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND WILL
DATED NOVEMBER 2, 2004
CAROL MITCHELL,
Petitioner,
vs.
EVA V. KNOTT, Trustee and Beneficia
under the REVOCABLE LIVING TRUS
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
will and trust beneficiary,
Respondents.
Case Number PTR-05-287341
(Related Case Number: PES 05-287457)
MEMORANDUM OF POINTS AND
AUTHORITIES OF PETITIONER CAROL
MITCHELL IN SUPPORT OF PETITION
FOR INSTRUCTION AND FOR
AUTHORITY TO SELL REAL
PROPERTY, ETC.
Date: October 17, 2006
Time: 9:00 a.m.
Dept. No: Probate Rm. 204
Filing Date: June 2, 2005
Judge: John Dearman
Trial Date: Not Assigned
COMES NOW Petitioner CAROL MITCHELL in support of Debra Dolch’s Petition
For Instructions And For Authority To Sell Real Property, etc.
|. INTRODUCTION
Petitioner Carol Mitchell supports the application of successor trustee Debra
Dolch for the sate of the subject real property and all authority related thereto. As to the
MEMORANDUM OF POINTS AND AUTHORITIES OF
PETITIONER CAROL MITCHELL IN SUPPORT OF
PETITION FOR INSTRUCTION AND FOR AUTHORITY TO
SELL REAL PROPERTY, ETC.eC Oa nn es wne
NON MY SONY NN NN BP BF Bw Be BP Be Be Be ee
oI now BW ND Ff OOo DI DH HW B® WH FP OD
ec €
personal property however, Petitioner Carol Mitchell respectfully requests authority to
remove certain items thereof and to store same until the final resolution of this matter.
Only because Respondent Eva Knott strenuously objected to the early disposition
of the subject real property, same has remained vacant, unproductive and a drain on the
limited cash assets of the subject family trust for nearly the last twenty (20) months.
Now, with the passage of this substantial period of time, there is no legitimate fiscal
reason to continue to allow this property to remain a continuing expense on this
administration. The rea! property should be sold immediately and the sale proceeds
placed into an appropriate interest bearing account.
I. EVA KNOTT THWARTS THE ORDERLY ADMINISTRATION OF THIS TRUST
A._Eva Knott Has Never Offered A LEGITIMATE Reason For Not Selling The
Subject Real Property
As can be seen from the letters attached to the subject Petition, Petitioner Carol
Mitchell urged the sale of the subject real property as early as August of 2005.
However, Respondent Eva Knott has opposed any sale of the rea! property due to her
belief that (i) this matter would be tried by the end of 2005; (ii) that Eva Knott would
prevail in the underlying action; and (iii) that there is “plenty of money in the bank
account, so there is no need whatsoever to sell or dispose of any of the personal or real
property”.
As has become abundantly clear, this matter was not resolved in 2005, it will not
be resolved in 2006, and most likely will not be tried before March or April of 2007.
However, even trial in this matter may not bring this matter to a conclusion given post
trial procedures, appeal rights, etc.
Furthermore, it is highly unlikely that Eva Knott will, in fact, prevail in this matter.
Given the facts disclosed through discovery, it has become most evident that at the time
of trial, it will be most difficult for Eva Knott to prevail. Given the conduct of numerous
parties, including Eva Knott and her representatives, and the fact that it is most likely
rere etceConcee sean oe”
PETITION FOR INSTRUCTION AND FOR AUTHORITY TO
‘SELL REAL PROPERTY, ETC,4a nN UV B® WN
C €
that Eva Knott will bear the burden of proof by clear and convincing evidence that the
decedent was not acting under undue influence, the likelihood of Respondent prevailing
in this action is highly questionable.
It has become equally obvious that Respondent seeks to increase the cost of this
litigation at every opportunity and by such conduct, increases the cost unnecessarily of
the administration of this trust. Requiring the filing of this petition and the resisting of the
authority sought to be obtained, is only a continuation of this effort to disrupt the orderly
administration of this trust. The subject real property has remained unproductive for
approximately twenty (20) months, all to the monetary detriment of this trust. The real
Property has been and remains a monetary drain upon the trust in that at the time of
death, the trust held cash assets of only $7,737.04 which is clearly inadequate to sustain
for any length of time, taxes, insurance and maintenance on this real property, and this
is without even considering the cost of administration.
B. Eva Knott Refuses To Discuss The Orderly Administration Of This Trust
In Respondent's continuing effort to disrupt the orderly administration of this trust,
Respondent refuses to discuss the disposition of persona! property located at the
subject real property. Attached hereto and marked as Exhibit “A” is a copy of a letter
forwarded to Respondent's counsel over one (1) month ago inviting a discussion
regarding the handling and disposition of personal property located within the subject
real property, Respondent, in her continuing refusal to cooperate, refuses in any way to
respond to this invitation. Clearly, Respondent has no desire to act in good faith or to
assist in the beneficial administration of this trust.
C. Knott Seeks To Leverage Her Position On The Ashes Of The Decedent
As further evidence of Respondent's unwillingness to do that which is right,
Respondent refuses to respond to Petitioner Carol Mitchell’s multiple requests to allow
the ashes of the decedent to be released to the family for proper disposal consistent with
his instructions to his family. Although repeated requests have made of Eva Knott
PETITIONER CAROL MITCHELL IN SUPPORT OF.
PETITION FOR INSTRUCTION AND FOR AUTHORITY TO.
SELL REAL PROPERTY, ETC.4D UW &® WKH HB
ow Oo
10
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through her counsel, she refuses to respond to that request and has caused the
decedent's ashes to remain on a shelf in a San Francisco Funeral Home for the last
twenty (20) months. Are these the acts of a reasonable person? Cannot the decedent
be properly placed at rest? Regardless of the issue and regardless of the
reasonableness of the solution, Ms. Knott will insist upon the opposite of Petitioner Carol
Mitchell's recommendation. That is precisely the case here - regardless of the fact that
there is only one (1) reasonable solution to the family residence, Ms. Knott will
irrationally insist that same remain a drain on the trust.
I, CONCLUSION
For the reasons set forth above, Petitioner Carol Mitchell joins the petition of
Deborah Dolch and urges this court to permit the listing of the subject real property for
sale forthwith. Petitioner Carol Mitchell also requests that family members of the
decedent be permitted to remove selected items of personal property from the
residence, all of which are to be stored in one location and remain unused. Petitioner
Caro! Mitchell will provide to this court and to Debra Dolch a detailed inventory of the
items so removed and will provide the address of where such items of personal property
are stored. Finally, all such removed personal property will remain subject to further
order of this court.
Dated: September 21, 2006.
ROBERT B. MITCHELL, Attorney for
Petitioner, Carol Mitchell
MEMORANOUM OF POINTS AND AUTHORITIES OF
PETITIONER CAROL MITCHELL IN SUPPORT OF
PETITION FOR INSTRUCTION ANO FOR AUTHORITY TO.
SELL REAL PROPERTY, ETC.C €
PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
| declare that | am employed in the County of Contra Costa, California. | am over
the age of eighteen years and not a party to the within cause. My business address is
1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407,
On September 22, 2006, | served the within MEMORANDUM OF POINTS AND
AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR
INSTRUCTION AND FOR AUTHORITY TO SELL REAL PROPERTY, ETC. on the
hereinafter named person(s) by placing a true copy thereof enclosed in a sealed
envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek,
California, addressed as follows:
MARCO FERRERO, JR.
46 Phylis Dr.
Pleasant Hill, CA 94523
MARCO FERRERO
1074 Leland Drive
Lafayette, CA 94549
NICHOLAS FERRERO
clo DARCY FERRERO
46 Phylis Or.
Pleasant Hill, CA 94523
NATALIE FERRERO
cio DARCY FERRERO
46 Phylis Dr.
Pleasant Hill, CA 94523
KING, KING & FISHLEDER
Attn: Michael Cochrane
555 Twelfth Street, Ste. 1440
Oakland, CA 94607-4046
DAVID FRIEDENBERG
Attorney at Law
2171 Junipero Serra Blvd., #620
Daly City, CA 94014
ERNEST F. DER
SKOOTSKY & DER, LLP
90 New Montgomery Street, Ste. 905
San Francisco, CA 94105
MEMORANDUM OF POINTS AND AUTHORITIES OF
PETITIONER CAROL MITCHELL IN SUPPORT OF
PETITION FOR INSTRUCTION AND FOR AUTHORITY TO.
SELL REAL PROPERTY, ETC.wn
an un
C €
Caroline K. Hinshaw, Esq.
425 California Street, Suite 900
San Francisco, CA 94104
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on September
22, 2006, at Walnut Creek, California.
neh ried M4
MEMORANDUM OF POINTS AND AUTHORITIES OF
PETITIONER CAROL MITCHELt IN SUPPORT OF
PETITION FOR INSTRUCTION AND FOR AUTHORITY TO.
SELL REAL PROPERTY, ETC.Legal Tabs Co. 1-800-322-2022"
Recyded (a) Stock #EXASB
EXHIBIT A |€ €
SPELLMAN & MITCHELL
ATTORNEYS AT LAW
1850 MT, DIABLO BLVD., SUITE 670
DEAN M. SPELLMAN WALNUT CREEK, CALIFORNIA 94596-4407 1925) 938-5880
ROBERT B. MITCHELL Fax (925) 938-5882
E-Mail: SPMILAW@SBCGLORBAL.NET
August 14, 2006
KING, KING & FISHLEDER
Attn: Michael Cochrane
555 Twelfth Street, Ste. 1440
Oakland, CA 94607-4046
VIA FAX (510) 444-3401 - HARD COPY TO FOLLOW
Re: Mitchell v. Knott, et al
Dear Mr. Cochrane:
It is my expectation that Ms. Dolch will shortly be seeking court instruction in
connection with the selling of Mr. Actis’ residence.
tn the event that an order is issued for the sale of the subject residence, itis the
intent of this letter to solicit from your client her desire as to the personal property located
within the residence pending final determination of this matter.
Consequently, it is my hope that you will advise me within seven (7) days from the
date of this letter as to your client's proposal in connection with this issue.
Sincerely,
ROBERT B. MITCHELL
RBMi:cg
EX?PHEIT “A”
Preview
ICA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Oct-03-2006 9:33 am Case Number: PTR-05-287341 Filing Date: Sep-27-2006 9:32 Juke Box: 001 Image: 01556180 MEMORANDUM OF POINTS AND AUTHORITIES IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC 001P01556180 Instructions: Please place this sheet on top of the document to be scanned.Nn an eo Wn Cc SPELLMAN & MITCHELL DEAN M. SPELLMAN, #060042 ROBERT B. MITCHELL, #074795 1850 Mt. Diablo Bivd., Ste. 670 Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL D San Francisco County Superior Court SEP 2 7 2006 GORDON KI rk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 CAROL MITCHELL, Petitioner, vs. EVA V. KNOTT, Trustee and Beneficia under the REVOCABLE LIVING TRUS AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor anda will and trust beneficiary, Respondents. Case Number PTR-05-287341 (Related Case Number: PES 05-287457) MEMORANDUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR INSTRUCTION AND FOR AUTHORITY TO SELL REAL PROPERTY, ETC. Date: October 17, 2006 Time: 9:00 a.m. Dept. No: Probate Rm. 204 Filing Date: June 2, 2005 Judge: John Dearman Trial Date: Not Assigned COMES NOW Petitioner CAROL MITCHELL in support of Debra Dolch’s Petition For Instructions And For Authority To Sell Real Property, etc. |. INTRODUCTION Petitioner Carol Mitchell supports the application of successor trustee Debra Dolch for the sate of the subject real property and all authority related thereto. As to the MEMORANDUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR INSTRUCTION AND FOR AUTHORITY TO SELL REAL PROPERTY, ETC.eC Oa nn es wne NON MY SONY NN NN BP BF Bw Be BP Be Be Be ee oI now BW ND Ff OOo DI DH HW B® WH FP OD ec € personal property however, Petitioner Carol Mitchell respectfully requests authority to remove certain items thereof and to store same until the final resolution of this matter. Only because Respondent Eva Knott strenuously objected to the early disposition of the subject real property, same has remained vacant, unproductive and a drain on the limited cash assets of the subject family trust for nearly the last twenty (20) months. Now, with the passage of this substantial period of time, there is no legitimate fiscal reason to continue to allow this property to remain a continuing expense on this administration. The rea! property should be sold immediately and the sale proceeds placed into an appropriate interest bearing account. I. EVA KNOTT THWARTS THE ORDERLY ADMINISTRATION OF THIS TRUST A._Eva Knott Has Never Offered A LEGITIMATE Reason For Not Selling The Subject Real Property As can be seen from the letters attached to the subject Petition, Petitioner Carol Mitchell urged the sale of the subject real property as early as August of 2005. However, Respondent Eva Knott has opposed any sale of the rea! property due to her belief that (i) this matter would be tried by the end of 2005; (ii) that Eva Knott would prevail in the underlying action; and (iii) that there is “plenty of money in the bank account, so there is no need whatsoever to sell or dispose of any of the personal or real property”. As has become abundantly clear, this matter was not resolved in 2005, it will not be resolved in 2006, and most likely will not be tried before March or April of 2007. However, even trial in this matter may not bring this matter to a conclusion given post trial procedures, appeal rights, etc. Furthermore, it is highly unlikely that Eva Knott will, in fact, prevail in this matter. Given the facts disclosed through discovery, it has become most evident that at the time of trial, it will be most difficult for Eva Knott to prevail. Given the conduct of numerous parties, including Eva Knott and her representatives, and the fact that it is most likely rere etceConcee sean oe” PETITION FOR INSTRUCTION AND FOR AUTHORITY TO ‘SELL REAL PROPERTY, ETC,4a nN UV B® WN C € that Eva Knott will bear the burden of proof by clear and convincing evidence that the decedent was not acting under undue influence, the likelihood of Respondent prevailing in this action is highly questionable. It has become equally obvious that Respondent seeks to increase the cost of this litigation at every opportunity and by such conduct, increases the cost unnecessarily of the administration of this trust. Requiring the filing of this petition and the resisting of the authority sought to be obtained, is only a continuation of this effort to disrupt the orderly administration of this trust. The subject real property has remained unproductive for approximately twenty (20) months, all to the monetary detriment of this trust. The real Property has been and remains a monetary drain upon the trust in that at the time of death, the trust held cash assets of only $7,737.04 which is clearly inadequate to sustain for any length of time, taxes, insurance and maintenance on this real property, and this is without even considering the cost of administration. B. Eva Knott Refuses To Discuss The Orderly Administration Of This Trust In Respondent's continuing effort to disrupt the orderly administration of this trust, Respondent refuses to discuss the disposition of persona! property located at the subject real property. Attached hereto and marked as Exhibit “A” is a copy of a letter forwarded to Respondent's counsel over one (1) month ago inviting a discussion regarding the handling and disposition of personal property located within the subject real property, Respondent, in her continuing refusal to cooperate, refuses in any way to respond to this invitation. Clearly, Respondent has no desire to act in good faith or to assist in the beneficial administration of this trust. C. Knott Seeks To Leverage Her Position On The Ashes Of The Decedent As further evidence of Respondent's unwillingness to do that which is right, Respondent refuses to respond to Petitioner Carol Mitchell’s multiple requests to allow the ashes of the decedent to be released to the family for proper disposal consistent with his instructions to his family. Although repeated requests have made of Eva Knott PETITIONER CAROL MITCHELL IN SUPPORT OF. PETITION FOR INSTRUCTION AND FOR AUTHORITY TO. SELL REAL PROPERTY, ETC.4D UW &® WKH HB ow Oo 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C € through her counsel, she refuses to respond to that request and has caused the decedent's ashes to remain on a shelf in a San Francisco Funeral Home for the last twenty (20) months. Are these the acts of a reasonable person? Cannot the decedent be properly placed at rest? Regardless of the issue and regardless of the reasonableness of the solution, Ms. Knott will insist upon the opposite of Petitioner Carol Mitchell's recommendation. That is precisely the case here - regardless of the fact that there is only one (1) reasonable solution to the family residence, Ms. Knott will irrationally insist that same remain a drain on the trust. I, CONCLUSION For the reasons set forth above, Petitioner Carol Mitchell joins the petition of Deborah Dolch and urges this court to permit the listing of the subject real property for sale forthwith. Petitioner Carol Mitchell also requests that family members of the decedent be permitted to remove selected items of personal property from the residence, all of which are to be stored in one location and remain unused. Petitioner Caro! Mitchell will provide to this court and to Debra Dolch a detailed inventory of the items so removed and will provide the address of where such items of personal property are stored. Finally, all such removed personal property will remain subject to further order of this court. Dated: September 21, 2006. ROBERT B. MITCHELL, Attorney for Petitioner, Carol Mitchell MEMORANOUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR INSTRUCTION ANO FOR AUTHORITY TO. SELL REAL PROPERTY, ETC.C € PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 | declare that | am employed in the County of Contra Costa, California. | am over the age of eighteen years and not a party to the within cause. My business address is 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407, On September 22, 2006, | served the within MEMORANDUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR INSTRUCTION AND FOR AUTHORITY TO SELL REAL PROPERTY, ETC. on the hereinafter named person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: MARCO FERRERO, JR. 46 Phylis Dr. Pleasant Hill, CA 94523 MARCO FERRERO 1074 Leland Drive Lafayette, CA 94549 NICHOLAS FERRERO clo DARCY FERRERO 46 Phylis Or. Pleasant Hill, CA 94523 NATALIE FERRERO cio DARCY FERRERO 46 Phylis Dr. Pleasant Hill, CA 94523 KING, KING & FISHLEDER Attn: Michael Cochrane 555 Twelfth Street, Ste. 1440 Oakland, CA 94607-4046 DAVID FRIEDENBERG Attorney at Law 2171 Junipero Serra Blvd., #620 Daly City, CA 94014 ERNEST F. DER SKOOTSKY & DER, LLP 90 New Montgomery Street, Ste. 905 San Francisco, CA 94105 MEMORANDUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELL IN SUPPORT OF PETITION FOR INSTRUCTION AND FOR AUTHORITY TO. SELL REAL PROPERTY, ETC.wn an un C € Caroline K. Hinshaw, Esq. 425 California Street, Suite 900 San Francisco, CA 94104 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on September 22, 2006, at Walnut Creek, California. neh ried M4 MEMORANDUM OF POINTS AND AUTHORITIES OF PETITIONER CAROL MITCHELt IN SUPPORT OF PETITION FOR INSTRUCTION AND FOR AUTHORITY TO. SELL REAL PROPERTY, ETC.Legal Tabs Co. 1-800-322-2022" Recyded (a) Stock #EXASB EXHIBIT A |€ € SPELLMAN & MITCHELL ATTORNEYS AT LAW 1850 MT, DIABLO BLVD., SUITE 670 DEAN M. SPELLMAN WALNUT CREEK, CALIFORNIA 94596-4407 1925) 938-5880 ROBERT B. MITCHELL Fax (925) 938-5882 E-Mail: SPMILAW@SBCGLORBAL.NET August 14, 2006 KING, KING & FISHLEDER Attn: Michael Cochrane 555 Twelfth Street, Ste. 1440 Oakland, CA 94607-4046 VIA FAX (510) 444-3401 - HARD COPY TO FOLLOW Re: Mitchell v. Knott, et al Dear Mr. Cochrane: It is my expectation that Ms. Dolch will shortly be seeking court instruction in connection with the selling of Mr. Actis’ residence. tn the event that an order is issued for the sale of the subject residence, itis the intent of this letter to solicit from your client her desire as to the personal property located within the residence pending final determination of this matter. Consequently, it is my hope that you will advise me within seven (7) days from the date of this letter as to your client's proposal in connection with this issue. Sincerely, ROBERT B. MITCHELL RBMi:cg EX?PHEIT “A”