Motion-Secondary: IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WITH CASE NO. PES-05-287457

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Case Number: PTR-05-287341
Filing Date: Dec-08-2005 4:39
Juke Box: 001 Image: 01341922
GENERIC PROBATE PLEADING

IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC1

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DAVID J, FRIEDENBERG, ESQ.

SBN 25026
2171 Junipero Serra Blvd., Ste. 620
Daly City, cA 94014 5
elephone: (650) 755-662:
Facsimile: (S50) 75883 12 San Francisco County Soperlor Court
Attomey for EVA KNOTT
BY;
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

IN RE REVOCABLE LIVING TRUST CaseNos. PTR-05-287341

AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004
RESPONDENT EVA KNOTT’S
MEMORANDUM OF POINTS AND

CAROL MITCHELL, AUTHORITIES IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
Petitioner, ORIN THE ALTERNATIVE, FOR

SUMMARY ADJUDICATION OF ISSUES
2006

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Time: fs

Date: N38
Dept:

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,

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Complaint Filed: June 22, 2005
Trial Date: TBD

Respondents.

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To alt Parties and Attorneys of Record: Respondent Eva Knott hereby submits
Memorandum of Points and Authorities in Support of Motion for Summary Judgment or in the
Alternative, for Summary Adjudication of Issues.

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESC C

TABLE OF CONTENTS

1. ISSUES 1
If. STATEMENT OF FACTS 1
IIL POINTS AND AUTHORITIES 3
A. | THECOURTHAS THE POWER TO GRANT SUMMARY JUDGMENT IN FAVOR OF
THE MOVING PARTY OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION ON
ONE OR MORE ISSUES. 3
B. | ACTIS WAS OF SOUND AND DISPOSING MIND AT THE TIME OF MAKING THE
WILLS AND TRUST. 3
1, CAPACITY TO EXECUTE A WILL AND TRUST 3
2. PRESUMPTIONS AND BURDEN OF PROOF 3
a. Evidence From Medical Professionals Prove That Donor Actis Was
Competent Before and After Execution of Both Wills and the Revocable
Living Trust. 4
b. Sworn Declarations of Friends and Neighbors Show That Charles Actis was
Competent All Times Prior to and after the Creation of His Wills and Trust.
7
C. THE WILLS AND TRUST REFLECT THE FINAL WISHES OF CHARLES ACTIS AND
ARE NOT THE RESULT OF UNDUE INFLUENCE BY EVA KNOTT. 9
1. PETITIONER RETAINS THE BURDEN TO PROVE UNDUE INFLUENCE AS
KNOTT WAS NOT ACTIS’ “CARE CUSTODIAN” UNDER PROBATE CODE
SECTION 21350(a). 11
2. PETITIONER RETAINS THE BURDEN TO PROVE UNDUE INFLUENCE
EVEN IF KNOTT SHOULD BE CONSIDERED A “CARE CUSTODIAN”, AS
DONOR ACTIS OBTAINED A CERTIFICATE OF INDEPENDENT REVIEW
UNDER PROBATE CODE SECTION 21351(b). 14
IV. CONCLUSION 15

RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY

JUDGEMENT OR IN THE ALTERNATIVE; $DR SUMMARY ADJUDICATION OF ISSUESaioe

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TABLE OF CASES
American Trust Co. v. Dixon (1938) 26 CA2d 426 ...-.. 2c eee eee ence cee eser ences -4-
Conservatorship of Davidson (2003)113 Cal.App.4th 1035 ..........-0...e0ee -12,13,14-
Estate of Baker (1982) 131 CA3d 471... 2.2... ce eee cence tee e eee e neon cree canes -9-
Estate of Fritschi (1963) 60 C2d 367 2.2.0... ceceeceerec erat errr ceetenececensecees -4-
Estate of Kreher (1951) 107 CA2d 831 2.0... ccc cece eee e rece eee n nent eee teeentes -9-
Estate of Lingenfeiter (1952) 238 C24 571 22... .0ceeceeceeeeeeeceecceceeueeeeeees -4-
Estate of Markham (1941) 46 CA2d 307.0... ... cc cece cece cence eter eee teeneceeee -4-
Estate of Truckenmiller (1979) 97 CA3d 326 0.0... cesecceeeceerneenceccreeeseres -9-
Estate of Ventura (1963) 217 CA2d 50 6... cess ccc c cere nee teeteeeeeerrereeeetaee -9-
Ramsey v. City of Lake Elsinore (1990) 220 Cal.App.3d 1530 .......0.eseeeesereeeere -16-
Tuttle v. Bessey (1955) 137 CA2d 725 «22... cc cec cece cee ee rn ceeeeteteneetreoeces -4-

TABLE OF CODES
Code of Civil Procedure § 437 et. seq. 6... 2.20. c cece cece cece eee e cece tence eneees -3-
Code of Civil Procedure § 1038 .........cceeeceececeeces bees eeeeeeeeeeneneree -16-
Probate Code Sec. 21350. 20... cccceececeeeeeteceteeereesereteeeeeeens -12,14,15-
Probate Code § 21351 et. seq. 22... cee cece eect eect cee en enone eeereeeees - 15, 14, 16-
Probate Code § 6100 ........ Deeb eae e eee e teeta eee ee cence ee eee eee eseeeeee -3,4-

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE; BOR SUMMARY ADJUDICATION OF ISSUES” e

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RESPONDENT EVA KNOTI’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY

EXHIBIT LIST

Dr. Charles Vella/Kaiser Report

Barbara Simon Declaration and Report

Dr. Harry Lew Report & Declaration

Chantay Allmond Declaration

Maria Carrillo Declaration

Harold Vincent McCarthy Declaration

Georgia Kourpoloulos Declaration

Joseph Masio & Eithne Cummins Declarations
David J. Friedenberg, Esq. Declaration
Gregory O’Keefe, Esq. Declaration

Eva Knott Declaration

Actis Will (August 16, 20024)

Actis Will (November 2, 2004)

Actis Trust (November 2, 2004)

Kaiser Hospital Records: A) Adult Initial Assessment; B) Informed Consent for
Transfusion and; C) Discharge Summary

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JUDGEMENT OR IN THE ALTERNATIVE; FOR SUMMARY ADJUDICATION OF ISSUES.° «

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I. ISSUES

It is respectfully requested that the court herein decide the following issues in this matter:

1. That there is no triable issue of fact that Charles Actis was anything other than of
sound mind when he executed his August 16, 2004 Will and/or his November 2, 2005
Will and Trust.;

2. That there is no triable issue of fact that Eva Knott ever exerted undue influence over
Charles Actis in the making of his August 16, 2004 Will and his November 2, 2005 Will
and Trust as all credible evidence shows that Charles Actis deliberately intended to
leave the bulk of his estate to Eva Knott and that no admissible evidence to the contrary
exists.;

3. That there is no merit to the claim that Respondent Eva Knott acted as Donor Charles
Actis’ care custodian, pursuant to Probate Code § 21350;

4, Even if Eva Knott is found to be a care custodian, that the existence of the Certificate of
Independent Review shifts the burden of proving undue influence on to Petitioner Carol
Mitchell.

It, STATEMENT OF FACTS

The donor in this case, Charles Actis, had always been unmarried and had no children. His
closest relatives were an estranged half-brother and his half-brother’s children, including Carol
Mitchell, who filed multiple actions contesting the will and trust herein. Actis executed a will and
revocable living trust leaving the bulk of his estate to moving party herein, Eva Knott. (Charles Actis
Will and Revocable Trust [Ex. 13, 14]) Long before meeting Knott, Actis told friends and
neighbors of the falling out he had with his half-brother and his family. (See Separate Statement of
Undisputed Facts, hereafter “S.S.”, Nos. 14-20) Specifically, Actis believed that his half-brother
had cheated him out of his mother and step-father’s inheritance. (S.S. Nos. 14-17) He also felt that
his half-brother and his half-brother’s children did not care for him, that they tried to sell his house

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from under him while he had been hospitalized, and that they were only waiting for him to die so
they could get his inheritance. As a result, Actis made it clear to friends and neighbors (before ever
meeting Knott) that he did not intend to leave his estate to his half-brother or his half-brother’s
children. (S.S. Nos. 21-23)

About 2001, Knott met Actis through a neighbor of his and they gradually became good
friends, (S.S, Nos. 26-29) Knott was a professional care giver for others but her relationship with
Actis was purely social, unpaid, and non-commercial. (S.S. Nos, 26) In fact, they had met completely
independently of her work. They talked frequently and occasionally Eva ran simple errands for
Charles, such as driving him to the store or the bank, She did not ask for, nor did she receive, a
salary for her help although she was reimbursed for out of pocket expenditures made on Actis’
behalf. Their friendship grew, and in the months prior to his death, they saw each other frequently
and often dined together. As his friendship with Knott grew, Actis told several of his friends and
neighbors that he wanted to leave the bulk of his estate to Eva Knott. (S.S. Nos. 21-23)

Onor about June 7, 2004, Actis voluntarily underwent testing at Kaiser Hospital to affirm his
mental competency because he intended to execute a will omitting his relations and he was fearful
that they would contest the Will or question his competency. (Ex. 1) On or about August 16, 2004,
after receiving a very favorable report from Kaiser, Actis executed a will leaving the bulk of his
estate to Eva Knott. (S.S. No. 1 & Ex. 12) On November 2, 2004, he executed another Will and
Revocable Living Trust, again leaving the bulk of his estate to Eva Knott. (Ex. 13) Because he
wanted to be sure his final wishes were carried out, he visited a second attomey in order to obtain
a Certificate of Independent Review. (Ex. 10)

Charles Actis died on April 26, 2005. Thereafter, on June 22, 2005, Charles Actis’ half-
brother’s daughter, Carol Mitchell, filed an Objection to Probate of Will (Case PES-05-287457).
On July 11, 2005, Carol Mitchell filed a Petition to Determine Validity of Purported Will and Trust
and to Impose a Constructive Trust (Case PTR-05-287341). Then, on August 9, 2005, Mitchell
filed a will contest.

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Il, POINTS AND AUTHORITIES

A. THE COURT HAS THE POWER TO GRANT SUMMARY JUDGMENT IN FAVOR
OF THE MOVING PARTY OR, IN THE ALTERNATIVE, SUMMARY
ADJUDICATION ON ONE OR MORE ISSUES.

Code of Civil Procedure § 437c(a) provides, in part, that “a party may move for summary
judgment in any action or proceeding if it is contended that the action has no merit...”. CCP §
437c(c) states that “[t]he motion for summary judgment shall be granted ifall the papers submitted
show that there is no triable issue as to any material fact and that the moving party is entitled to
judgement as a matter of law.” Finally, CCP 437c(f{1) provides in pertinent part that in the
alternative, “a party may move for summary adjudication as to one or more causes of action within
an action,...if that party contends that the cause of action has no merit ...”

Here, Respondent contends that the Petitioner’s objections to the wills and trust are completely
without merit. Specifically, itis argued herein that the uncontraverted evidence establishes that Actis
was mentally competent when he devised his wills and revocable living trust, and that Eva Knott
exerted no undue influence over him in the making of said wills and trust.

B. ACTIS WAS OF SOUND AND DISPOSING MIND AT THE TIME OF
MAKING THE WILLS AND TRUST.

1, CAPACITY TO EXECUTE A WILL AND TRUST
To make a valid will, the testator must be at least 18 years old and of sound mind. (Prob. C.

§ 6100.) Anindividual is NOT mentally competent to make a will if at the time of making the will
either of the following is true:

(1) The individual does not have sufficient mental capacity to
be able to (A) understand the nature of the testamentary act, (B)
understand and recollect the nature and situation of the individual's
property, or (C) remember and understand the individual's relations
to living descendants, spouse, and parents, and those whose interests
are affected by the will. (2) The individual suffers from a mental
disorder with symptoms including delusions or hallucinations, which
delusions orhallucinations result in the individual's devising property

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in a way which, except for the existence of the delusions or
hallucinations, the individual would not have done....
(Prob. C. 6100.5)

Capacity to create a trust is generally the same for capacity to execute a will. (Tuttle v. Bessey
(1955) 137 CA2d 725, 727.) A testator must understand the consequences of his bequest. (Estate
of Lingenfeiter (1952) 238 C2d 571, 582.) Furthermore, the test for capacity can be less stringent
fora revocable living trust than a irrevocable trust. (Id. at 582.)

2. PRESUMPTIONS AND BURDEN OF PROOF

A competent testator or settlor may dispose of is property as he wishes, without regard to the
desires of the prospective beneficiaries or the views of anyone else, as Jong as the documents terms
are not prohibited by law. (Estate of Markham (1941) 46 CA2d 307.)

The testator is presumed sane and competent and the contestant has the burden of proving by
a preponderance of evidence that the testator lacked testamentary capacity at the time the will was
signed. (Estate of Fritschi (1963) 60 C2d 367, 372.) The same general presumption of competence
exists with respect to the execution of trusts. (American Trust Co. v. Dixon (1938) 26 CA2d 426,
431.)

Here, on August 16, 2004, Charles Actis executed his Will at the Law Offices of David
Friedenberg, Esq., leaving the bulk of the estate to Eva Knott. (S.S. No. 9 & Ex. 12) The execution
of said Will was also videotaped. On November 2, 2004, Actis executed a Revocable Living Trust
and pour over Will with the same dispositive provisions as the first Will executed on August 16,
2004. (S.S. No. 9 & Ex. 13)

a. Evidence From Medical Professionals Prove That Donor Actis Was Competent Before
and After Execution of Both Wills and the Revocable Living Trust.

In anticipation to the creation and execution of both a will, Actis voluntarily subjected
himself to a medical exam in order to confirm his mental fitness. (Ex. 1) On June 7, 2004, Charles
was found to be psychologically competent following an evaluation by Neuropsychologist Charles
Vella Ph.D. at Kaiser Permanente Medical Center, Department of Psychiatry, in San Francisco. Dr.

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Vella’s report noted:

“Thisisaneatly dressed and groomed man, who arrived ontime
for his scheduled appointments. He was pleasant, friendly 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 tomatology. S) 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 ere Was NO

evidence of auditory or visual hallucinations, suicidal or paranoid

ideation. Mr, Actis appeared to exert good effort during testing. Test
Mt: considered to accurate! nt his current abilities in

the areas measured...

Mr,__Actis performed_normally_on the COGNISTAT,
Orientation, Attention, Language, Calculation, and Reasoning wt

all within the normal range. Naming and Block design were normal,
Similarities and judgements were normal,” [emphasis added] (Ex. 1)

Dr. Vella’s uncontraverted evaluation leaves no doubt about Actis’ mental capacity. Actis’
own actions of seeking out such an examination in order to preemptively defend his will supports
the fact that he understood what property he had, he understood his relations with his family, and
he understood the consequences of his testamentary act. Actis feared that without such an
examination that his will might be challenged by his relatives, including Carol Mitchell, who is
married to attorney Robert Mitchell of Spellman and Mitchell. Mitchell’s subsequent filing of
petitions and contests to the will and trust show that Actis’ fears were justified and that he
demonstrated good foresight and judgment in requesting the medical examination prior to executing
his will.

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In addition to Dr. Vella’s report, Respondent herein offers evidence from numerous medical

processionals that show Actis was mentally competent under the law to make his final disposition.
Prior to the creation of the wills and trust, Dr. Harry Lew, D.P.M. of Kaiser Hospital San Francisco,
had been treating Charles Actis weekly for two years. During that time, Dr. Lew felt Mr. Actis was
competent and alert enough to manage his own medical affairs. (Ex. 3) In a subsequent
memorandum dated October 7, 2005, Dr. Lew wrote: “At the time when Mr. Charles Actis was my
felt. that he was able to make decisions regarding his podiatric care.” (Ex. 3)
Registered Nursing Assistant, Maria Carrillo cared for Actis for three weeks after his foot
surgery and states in her sworn declaration:“At all times during my conversations with Mr, Actis,

Lfound him to be mentally alert and aware of what he was doing, In my opinion he was perfectly

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capable of making his own decisions regarding his finances, health a personal needs.”(Ex. 5)

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Registered Nurse, Chantay Allmond of Kaiser Hospital assigned to Actis as a home care nurse
in the fall of 2004. Her sworn declaration states, “Itis my personal opinion that at all times Charles

Actis to know what he was doing and was able to make his own decision ing hi:

personal care and his property.” (Ex. 4)
Inearly 2005, after both wills and trusts were executed, Charles was again mentally evaluated,

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this time by Barbara Simon, a Professional Fiduciary at Simon Associates, Protective Services for

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Seniors in San Francisco. Ms. Simon interviewed Mr. Actisinhis home on three separate occasions,

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and once via telephone. In her report, Ms. Simon noted that “Mr, Actis acted ina functional way,

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taking the entire step to protect his assets during his lifetime, while directed them after his demise,

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Je placed himself under the scrutiny of a Professional prior to executin: is Estate Plan. Mr. Acti

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showed foresight, clear thinking, self importance and preservation to affect the final outcome he
desired....he acted rationally to protect his planning.” (Ex. 2.)

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In addition to statements from medical professionals, Respondent submits medical records

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dated from just prior to the execution of his Wills and Trust to shortly thereafter, showing that Actis

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was in good mental health, and competent to make his own medical decisions. On August 1, 2004,

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just weeks before he executed his August 16, 2004 will, the Kaiser Hospital Adult Initial Assessment

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indicates that Actis suffered from no altered memory and no decline in independence prior to
hospitalization. (Ex. 15) The Psychological portion of the assessment indicates that Actis was
“talkative” and “cooperative” and that he understood his reason for hospitalization (foot trouble).(Ex.
15)

On 4/17/05, shortly before his death, the Physician Declaration (signed by A. Chaltopadliya)
on the Informed Consent for Transfusion of Blood states: “I have explained the contents of this
document to the patient....I feel the patient....has been adequately informed and has consented..” (Ex.
15) .

Sometime between 4/14/05 and his death on 4/26/05, itis clear that doctors believed Actis to

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be competent and tnisted him to make crucial medical decisions. Actis’ Patient Discharge
Summary dictated by Dr. Jacqueline M. Poggi, MD, states “Initially the patient said that he would
ailow reintubation but on further discursion he said that he would not want to be intubated again. On
the weekend prior to his death he stated that he wished [for] comfort care.” (Ex. 15)

Mitchell has submitted no admissible reports, declarations, depositions or any otheradmissible
evidence from any medical professionals which contradict the moving party’s overwhelming
evidence that Actis was mentally competent to make his will.

b. Sworn Declarations of Friends and Neighbors Show That Charles Actis was Competent
All Times Prior to and after the Creation of His Wills and Trust.

Also attached hereto are two Declarations from Harold Vincent McCarthy, a neighbor and
friend of Charles Actis for many years. In his Declaration of January 9, 2005, Mr. McCarthy states
in part that “Charles Actis converses well and has a good memory. He is very well aware of what
is going on and what he is doing and is capable of making his own decisions as to his personal and
financial needs.” (Ex. 6)

Joseph Masio and Eithne Cummins are husband and wife. Joseph had known Actis for most
ofhis life and Eithne had known him the past five years. In their swom declaration they state: “That
although Charles is having some difficulty with his eyesight and legs, he is mentally alert and

knowledgeable, ,... It is our belief that Charles Actis is capable of making his o decisions as to

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his physical and financial matters, and that he is not in need of a Public Guardian.”(Ex. 8)

Also attached hereto is the Declaration of Georgia Kouropoulos, a neighbor who had known
Charles Actis formore than thirty years prior to his death. She said he lived about three doors from
her and they would speak frequently. The last time she spoke to Charles Actis was shortly before
he went into the hospital in April, 2005. She states that he “was still very aware of what he was
doing and seemed very competent and of sound mind to me.” She also states “he appeared the same
as he always had.” (Ex. 7)

Also attached is the declaration of this attomey, David J. Friedenberg, Esq., attomey for Eva

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Knott and Charles Actis. I met with Actis and drafted his wills and trust. My swom declaration

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states, in part: “That on Au. 12, 2004 I questioned Charl ctis alone and al

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regarding his assets and his wishes regarding his Will. 1 found him lucid and certainly of sound and

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disposing mind._He was well aware of what property he had and gave me a list of his assets,
including his real and personal property.” (Ex. 9) Later, regarding preparation of his Revocable

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Living Trust and Pour Over Will: “He came to my office on November 2, 2004 ...without anyone
resent... again found Mr, Actis to be very alert and a of what he doin rding hi

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personal matters. He knew what property he had and what he wanted to do with it.” (Ex. 9)
In response to discovery requests, Petitioner Mitchell produced no declarations, nor any other

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admissible evidence from any individuals who personally knew Charles Actis which support the

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allegation that Charles was mentally unfit to make his will. Onthe otherhand, the Respondent herein

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has submitted overwhelming credible and uncontradicted evidence from medical professionals and

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people who know him and each one swears under oath that they believed Charles Actis was

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mentally competent. Thus, there is no triable issue of fact that Charles was anything other than

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mentally fit to execute his will and trust. Therefore, summary judgement should be granted in favor

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of Eva Knott or, alternatively, the issue of Actis’ competency should be summarily adjudicated.
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C. THE WILLS AND TRUST REFLECT THE FINAL WISHES OF CHARLES ACTIS
AND ARE NOT THE RESULT OF UNDUE INFLUENCE BY EVA KNOTT.

Undue influence is conduct that subjugates the testator’s or settlor’s will to that of another,
causing a disposition different from that which the testator or settlor would have made if permitted
to follow his own inclinations. ( Estate of Baker (1982) 131 CA3d 471, 480.) Undue influence can
only be established where it is shown that a testamentary disposition was brought about by undue
pressure, argument, entreaty, or other coercive acts that destroyed the testator’s freedom of choice
so that it can fairly be said that the testator was not a free agent when making his will, Estate of
Truckenmiller (1979) 97 CA3d 326.) Proof of general influence or opportunity to influence is not
enough, there must be proof that the influence was used directly to procure the instrument. (Estate
of Kreher (1951) 107 CA2d 831, 839.) Furthermore, some cases suggest that undue influence must
be proved by clear and convincing evidence.(Estate of Ventura (1 963) 217 CA2d 50, 58.)

Petitioner Mitchell claims that Actis was suffering from undue influence allegedly exerted by
Eva Knott when he created and executed his final will and trust. However, the overwhelming and
uncontradicted evidence clearly proves that Charles Actis had a falling out with his relatives long
before meeting Eva Knott. (S.S. Nos. 14-17) Actis had stated to a longtime friend, Harold Vincent
McCarthy, that he had a falling out with his half-brother and family and that Actis did not want to
leave his estate to them. (Ex. No. 6) Actis explained that he believed his half’ brother cheated him
out of his mother and step-father’ inheritance. Actis also told McCarthy that he felt that his half-
brother was being manipulative by preparing to sell Actis’ house without his permission while Actis
had been hospitalized, and his half-brother was only waiting for him to die so he could get Actis’
inheritance. Actis had long made it clear to McCarthy and others that he did not intend to leave his
estate to his family and that he wanted to leave his estate to Eva Knott. Actis told McCarthy that he

would marry Eva if necessary, to avoid the possibility of his family contesting the Will and going

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES INSUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES._

against his last wishes. (S.S. Nos. 18-20, Ex. No. 6)
Following foot surgery, Actis spent anumberofweeksata nursing facility, where he was cared
for by registered nursing assistant Maria Carrillo. She recalled conversations with Actis regarding

his testamentary intent: “During that time, we talked quite a bit, When asked him about his family,

e said his family never came to see him because th didn’t about him and were only after his

money, He said the only person he thought o fas family, was Eva Knott.” (Ex. 5)

Chantay Allmond, R.N. remembers similar conversations with Actis: “That_on numerous

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occasions {had lunch with Mr, Actis who told me he did not want anything to do with his family and

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did not want to leave them anything, He told me that his brother was a “liar” and that he had

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previously given his family money for his care and he felt they mistreated him, He was concerned

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that if something happened to him, Eva would not be in cha: e of him and his pro; .” (Ex. 4)

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Dr. Vellaalso noted Actis’ feelings about his relatives and his intent to leave his estate to Eva.

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In the “Relevant History” of his report, Dr. Vella wrote: “...He has known her fora year and a half.

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He gave her $130. as a loan for . He owns his own home and still has $300,000 in th

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bank. He has family in Italy, but does not trust them. He would like to prove he is not dumb, and

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wants to make a will, _He believes his brother would fight his will. He does not want his brother to

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have his estate, ‘he made me feel Jike a beggar.’_He would like Eva as his conservator...” (Dr.

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Vella’s Report [emphasis added] pg. 2:In. 16 [Ex. y)

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During the preparation of the August 16, 2004 will, Actis stated that “...he did not wish to

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leave any part of his estate to his half-brother or his half-brother’s children....as he was noton good

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terms with tem and he believed, had no interest in him other than his money. However, he did want

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to leave the sum of $100,000 to the children of his nephew, Marco Ferraro Jr., and then leave the

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remainder to his friend, Eva Knott. He told me that Eva was his best friend and that she had been

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN TIE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESCc C

_

very helpful and kind to him, whereas his family had not.” (Ex. 9)

Ms, Simon’s report also quotes Charles Actis as expressing his feelings regarding his life when
he states, “in my last years of my life [should be comfortable, and they [his family] never wanted
me. When my family didn’t help me, I and pray for someone to help me, and Eva cam:
alone”. (Ex. 2) Again quoting Actis, Simon writes: “If they don’t do this, they (family) gonna sell
my house and put me ina....(Nursing home). They say it’s the best. ]don’t want to go there.” Simon

goes on to say that: “His actions may have been seeded initially from his anger toward his family’s

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actions during his furst hospitalization.” In sum, Simon notes: “’ There will always be the possibility

that Mr, Actis is venerable (sic) to undue influence: most of us are. It is true that the possibili

always exists that his d lence on others may reduce his functionality. However, the curren!
support and friendship that Ms. Knott provides Mr. Actis is beneficial to his physical and emotional

wellbeing.” (Ex. 2)

The uncontraverted evidence above clearly establishes that prior to making his wills and trust,
Actis had 2 falling out with his relatives and, except his nephew’s children, he wished to leave the
bulk of his estate to Eva Knott. Mitchell cannot and has not offered any credible evidence that Eva
Knott exerted undue influence over Charles Actis. Mitchell cannot and has not offered any evidence
whatsoever to show that Actis’ intent was other than to leave his estate to the one friend he could
rely on, Eva Knott. In viewof the lack of credible contrary evidence, this court should conclude that
there is no triable issue of fact that Eva Knott ever exerted undue influence over Charles Actis
regarding his Wills or Trust.

1. PETITIONER RETAINS THE BURDEN TO PROVE UNDUE INFLUENCE AS
KNOTT WAS NOT ACTIS’ “CARE CUSTODIAN” UNDER PROBATE CODE
SECTION 21350(a).

Donative transfers to a care custodian of a dependent adult who is the transferor is prohibited.

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESCc C

_

Any such transfer creates a rebuttable presumption of undue influence and the burden to prove
otherwise shifts to the care custodian. (Probate Code Section 21350)

At issue here is whether Eva Knott was Charles Actis’‘care custodian” under the code.
According to the Appellate court in Conservatorship of Davidson, "when an individual becomes .
_. acare custodian of a dependent adult as a direct result of a preexisting genuinely personal
relationship rather than any professional or occupational connection within the provision of health

or social services, that individual should not be barred by section 21350 from the benefit of donative

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transfers untess it can otherwise be shown that the subject transfer was the result of undue influence,
fraud or duress.” ( Conservatorship of Davidson (2003)1 13 Cal.App.4th 1035, 1052-1053) The

Davidson court ruled against over broad interpretations of “care custodians” in order to avoid
invalidating transfers to friends who provide care:

We reject appellant's over broad interpretation of the pertinent statutory
language. Under appellant's reading of section 21350 and Welfare and
Institutions Code section 15610.17, virtually any individual providing
personal care to a dependent adult, no matter how intimately and personally
connected they might be, would be disqualified from receiving a gift,
bequest, devise, or other donative transfer from the dependent adult under a
trust or will unless they were related to the dependent by blood or marriage.
(Conservatorship of Davidson (2003)113 Cal.App.4th 1035, 1052)

By way of background, the appellate court supported the factors recognized by the trial

court which could exempt a donee from being considered a care giver, including:

“Gungl’s [respondent] deep personal concem for Davidson's
{decedent] well-being; the non-commercial nature of the personal
care he offered her; and the fact that the moneys paid to Gungl were
not remuneration, but instead were for her direct personal benefit
and to cover Gungl's out-of-pocket expenses on Davidson's care.”
id, at 1047)

Like the Davidson case, Eva had a long and supportive relationship with Charles, noted
by many witnesses, including Barbara Simon, a California certified fiduciary and registered

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RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESoe nN A HW FF YW HY =

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Guardian of Simon Associates, Protective Services for Seniors. (Ex. 2) She professionally
evaluated Mr. Actis at the request of Mr. Actis’ attomey, Gregory O’Keefe, Esq. Ms. Simon
visited Mr, Actis several times in 2005. She evaluated the relationship between Mr. Actis and
Ms, Knott, as she stated in her report: “Ms. Knott visits daily, keeping his house, driving him
tothe odd_medical appointment, bringing him groceries and cooking for him.” (Simon Rpt.,
pg. L:In 5 [Ex. 2]), Simon concluded that, “ [T]he current support and friendship that Ms. Knott
provides Mr, Actis is beneficial to his physical and emotional well-being.” (Simon Rpt. pg. 3:
In.4 [Ex. 2]) The swom declaration of Harold Vincent McCarthy, longtime friend of Actis,
also supports the helpful friendship between Actis and Knott: “Charles stated that Eva Knott
was a good friend and helpful and considerate to him, whereas his family had not. In fa
he stated that he felt so strongly that he wanted the bulk of his stated to go to Eva Knott instead
of his family, that he would consider marrying her if: sary, to avoid the possibility of his
family contesting his Will.” (Ex. 6) Registered nursing assistant, Maria Carrillo who cared for
Actis for three weeks after he sustained a foot injury, stated in her wom declaration:“He [Actis]
said the only person he thought of as family, was Eva Knott.”(Ex. 5)

Furthermore, the Davidson court noted Legislative intent to differentiate a care custodian

as a professional hired to care for that dependent adult.

...As made clear by discussion of the legislation in an analysis prepared for
the Senate Judiciary Committee, the enactment of the amendment adding

"care custodians" to the list of presumptively invalid recipients of donative
transfers was intended to apply to gifts made "to practical nurses or other
care givers hired to provide in-home care.” (Sen. Com. on Judiciary, com.
on Assem. Bill No. 1172 (1997-1998 Reg. Sess. at p. 4.) ..
(Conservatorship of Davidson (2003)113 Cal-App. Oth 1035, 1052. )

Here, Eva was not hired or paid for the care she provided to Charles: “The only money
I received from Charles were the reimbursements for gas or laundry detergent or housecleaning
expenses.” (Ex. 11)

Mitchell hasno evidence to support the notion that Eva Knott was paid or hired by Charles
Actis. On the contrary, the evidence above establishes that their relationship was a helpful

13

RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY

JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES_

friendship and that she was not his “care custodian” under Probate §21350. Thus, the burden
of proof of undue influence, by clear and convincing evidence, falls on the petitioner. Given
the arguments above, petitioner’s claim of undue influence is unsubstantiated and without merit.
Therefore, motion for summary judgment dismissing petitioner’s contest of the will and trust
should be granted or, alternatively that the issue that Eva Knott was not Actis’ care giver be
summarily adjudicated.

2, PETITIONER RETAINS THE BURDEN TO PROVE UNDUE INFLUENCE
EVEN IF KNOTT SHOULD BE CONSIDERED A “CARE CUSTODIAN”, AS
DONOR ACTIS OBTAINED A CERTIFICATE OF INDEPENDENT REVIEW
UNDER PROBATE CODE SECTION 21351(b).

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Probate Code § 21351(b) states that the presumption of invalidity of donative transfers to
care custodians of dependent adults under section 21350(a) does not apply where:

"{tJhe instrument is reviewed by an independent attomey who (1) counsels
the client (transferor) about the nature and consequences of the intended
transfer, (2) attempts to determine if the intended consequence is the result

of fraud, menace, duress, or undue influence, and (3) signs and delivers to the
transferor an original certificate . . . with a copy delivered to the drafter."
(Probate Code § 21351(b))

Here, even assuming, arguendo, that Knott is determined to bea “care custodian” for Actis,
the rebuttable presumptive disqualification under Probate Code Section 21350(a) does not apply
because a Certificate of Independent Review was made. Subsequent to the execution of the
Revocable Living Trust Agreement of Charles Actis and the pour over Will, an independent
attomey, Gregory P. O’ Keeffe, Esq., reviewed said documents with Charles Actis on the nature
and consequences of the transfers to Eva Knott contained in said instruments. (Ex. 10) In his
Certificate of Independent Review, Mr. O’Keeffe states that he is ina position to advise Mr.
Actis independently and impartially as to the consequences of the transfer, and then states “On

the basis of this counsel, | conclude that the transfer, or transfers, in the instruments that

14
RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN TIE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESwo we N A HU Fk YW Nn =

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otherwise might be invalid under Probate Code Section 21350 are valid because suc sfer,

or transfers, are not the product of fraud, menace, duress, or undue influence.” (Ex. 10)

Given that Mr, O’Keeffe’s Certificate meets all requirements of Probate Code section

21351, the presumptive disqualification under Probate Code § 21350 does not apply here. The

burden of proof of undue influence by clear and convincing evidence remains with the

petitioner, Given all the arguments above, summary judgement should be granted, or

alternatively, the court should summarily adjudicate that the issue of the burden to prove undue

influence shifts to the Mitchell.

Finally, regarding burden of proof of undue influence, it is argued herein that even if Knott

had the burden to prove no undue influence, it is submitted that all of the evidence and

arguments above offer clear and convincing evidence to rebut the presumption under the code.

2.

IV. CONCLUSION
It is therefore submitted that the only credible evidence in this matter shows:
That at the time of making the Wills and Trust, Charles Actis was mentally competent,
as confirmed by Drs. Lew and Vella from Kaiser Hospital in San Francisco, Barbara
Simon from Protective Services for Seniors, Gregory O’Keeffe, Esq., and numerous
friends and neighbors.
The wills and trust reflect the final wishes of charles actis and are not the result of undue
influence by Eva Knott.
That years prior to his ever meeting Eva Knott, Charles Actis made it clear to numerous
people that he distrusted his estranged relatives, felt they were only interested in getting
his money, and that he did not want to leave his estate to them.
That Eva Knott was neither hired nor paid by Charles Actis and therefore not his “care
custodian” pursuant to the applicable Probate Code sections.

That even if Eva Knott was considered a “care custodian”, there was a valid Certificate

15

RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY

JUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUES-_

ow eon awn & WwW N

of Independent Review which shifts the burden of proof of undue influence to Mitchell

which she can not sustain.

6. That there is no credible, admissible evidence to justify a finding of undue influence or
lack of testamentary capacity.

7. _ Petitioner Mitchell cannot sustain her burden of proving lack of testamentary capacity and
undue influence.

WHEREFORE, the moving party herein requests that the motion for summary judgement
be granted and that the will and trvst be deemed valid in favor of Eva Knott.

. Alternatively, the moving party herein requests that the issues be summarily adjudicated
in her favor.

Furthermore, it is respectfully requested that the moving party herein be awarded costs
of court and reasonable attorneys fees. (CCP § 1038 (a)) At summary judgment, if the court
finds that the complaint was filed without good faith and reasonable cause, the court may award
“defense costs reasonably and necessarily incurred by the party or parties opposing the
proceeding, and the court shall render judgment in favor of that party in the amount of all
reasonable and necessary defense costs, in addition to those costs normally awarded to the
prevailing party.” (Code of Civil Procedure § 1038 (a)). (See also Ramsey v. City of Lake
Elsinore (1990) 220 Cal.App.3d 1530)

Here, petitioner has submitted no admissible evidence to justify the allegations that Actis
was of unsound or that the wills and/or trust were the result of undue influence by Eva Knott.
The petitioner’s complaint and will contest is completely unfounded. The multiple complaints

were not filed in good faith and without reasonable cause.

Dated: Dec. _@_, 2005

AVID J. FRIEDENBERG, ESQ.
Attomey for Respondént EVA KNOTT

16

RESPONDENT EVA KNOTT’S MEMORANDUM OF POENTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY

FUDGEMENT OR IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION OF ISSUESKAISER PERMANENTE
‘The Permanerts Medical Group, inc,

Kaiser Permanente Medical Center
Department of Psychiatry4141 Geary Boulevard
San Francisco, CA 94118
(415) 833-3145

NEUROPSYCHOLOGICAL REPORY

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):

”

This information is disciésed to you from records whose confidentiality is
protected by Federal law. Federal regutation (42 CRF Part 2) prohibit you from
making any further disclosures of k without specific written consent of the
person to whom it pertains, or as otherwise permitted by such regulations. A
general authorization for the release of medical or other information ts NOT
sufficient for this purpose.

California Verbal Leaming Test-Il, Short Form (CVLT-2)

Trail Making Test (TMT)

Controtled Oral Word Association Test (COWAT)Patient Charles Actis
MR#: 3057007
Page 2

Problems in Everyday Living Test (PEDL)

Norms Used: Heaton Comprchensive Norms for an Expanded Halstead-Reitan
Battery

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 concems about undue influence and

possible financial abuse, filed in 11/03. Baseline neuropsychological screening
was requested.

Relevant History:

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 concerned 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 born 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.wn

Patient: Charles Actis
MR#: 3057007
Page 3

Canie Wong, MSW, of APS, administered a MMSE to Mr. Actis. He scored 20/30
She states that Mr. Actis gave an unsecured loan of $130,000 to Eva Knott, the
home care agency owner for Bay Area Home 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 anived on time for his
scheduled appointments. He was pleasant, friendly and quite cooperative with afl
the administered procedures. Mood was nornal 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 normally on the COGNISTAT. Orientation, Attention,
Language, Constructional Ability, Calculation, and Reasoning were all 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 visual acuity difficulties (diabetic
retinopathy).Patient: Charles Actis
MR#: 3057007
Page 4

Memory:

The CVLT-tl memory assessment reveals that his learning and memory
functioning is normal. Mr. Actis recalled 4 of the 9 words on the first triat 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 noriral 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; SD, z
score = 1.5), indicating a normal rate of forgetting of verbal material. He has both
norma! retention and free recall levels, similar to individuals with normal encoding
ability. He used semantic clustering (the use of category structure), the most
effective learning strategy (z score = 1), a finding correlated with effective
memory functi