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Aug-25-2005 8:55 am
Case Number: PTR-05-287341
Filing Date: Aug-23-2005 8:54
Juke Box: 001 Image: 01269471
OPPOSITION
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC
001P01269471
Instructions: :
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ORIGINAL
DENNIS J. HERRERA, State Bar #139669
City Attorney
ALEETA M. VAN RUNKLE, State Bar #124563
JENNIFER K.WILLIAMS, State Bar #166853
Deputy City Attorneys
Fox Plaza . .
1390 Market Street, 10 Floor, Suite 1008
San Francisco, California 94102-5408
Telephone: (415) 554-3812
Facsimile: (415) 557-6747
Adult Protective Services (APS)
IN THE REVOCABLE LIVING TRUST
AGREEMENT AND WILL OF
CHARLES ACTIS
CAROL MITCHELL,
Petitioner,
Vv.
EVA KNOTT, Trustee and Beneficiary
CLF, Clow
ARK-LI, Clr
MC ND
|n Osputy Cleric
Attorneys for the City and County of San Francisco,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
Case No. PTR-05-287341
OPPOSITION OF SAN FRANCISCO
ADULT PROTECTIVE SERVICES' TO
MOTION FOR COURT ORDER
RELEASING CONFIDENTIAL
INFORMATION AND AUTHORIZING
THE TAKING OF DEPOSITIONS;
MEMORANDUM OF POINTS AND
AUTHORITIES AND DECLARATION
under the REVOCABLE LIVING TRUST IN SUPPORT THEREOF
AGREEMENT OF CHARLES ACTIS,
and NICHOLAS and NATALIE Hearing Date: September 2, 2005
FERRERO, minors and beneficiaries, Time: 9:00 a.m.
Place: Dept. 612
Respondents. Judge: The Honorable John
Dearman
Attached Documents: Deposition
Subpoenas
NOTICE OF OPPOSITION
TO PETITIONER CAROL MITCHELL:
order requiring the taking of certain depositions.
OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS;
MPAS AND SUPPORT DECL.; S/C # PTR-05-287341
1
PLEASE TAKE NOTICE THAT on September 2, 2005, at 9:00 a.m. in Department 612
of the above-referenced Court, the San Francisco Adult Protective Services Agency will and
hereby does oppose petitioner's request for an order producing confidential documents and an
NAHEALTHUWILLIAM SUBPENA aa oe0 me YN ND HW YW DN
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This opposition will be based upon this notice of opposition, the memorandum of points
and authorities below, the documents on file herein, and such other oral and documentary
evidence as may be presented at the hearing.
Dated: August 22, 2005 Respectfully submitted,
DENNIS J. HERRERA
City Attorney-
py: Mure Milter
UY JENNIFER K. WILLIAMS
Deputy City Attorney
Attomeys for the City and County of San
Francisco, Adult Protective Services
MEMORANDUM OF POINTS AND AUTHORITIES
IN SUPPORT OF OPPOSITION
I. SUMMARY OF DOCUMENTS SOUGHT BY PETITIONER
On or about May 25, 2005, petitioner Carol Mitchell served a deposition subpoena for
production of business records on the San Francisco Adult Protective Services Agency seeking
Adult Protective Services records. On or about June 24, 2005, petitioner served a similar
subpoena on Dr. Abraham Nievod for the same purpose. The records sought by the subpoenas
are as follows:
Petitioner seeks "any and all documents which in any way relate to Charles Actis,
including, but not limited to, notes, letters, memorandums, telephone messages, pleadings,
depositions, video tapes, audio tapes, reports, records, documents of title and/or inventory."
When APS refused to comply with this subpoena, petitioner then filed a motion for the court to
order compliance.
APS opposes the request for a court order in this case because the information sought by
petitioner's subpoenas is confidential and privileged under state law.
OPPOS TO MIN. FOR CT. ORD & AUTH TAKING OF DEPOS; 2 . NHEALTHUWILLIAMSUBPENA oats doe,
MPAS AND SUPPORT DECL.; S/C # PTR-05-287341Uo oN A NH FF YW HN
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Attached as Exhibit A are copies of the deposition subpoenas.
Il LEGAL ARGUMENT
A. The requested Adult Protective Services records are confidential and cannot
be released in this case.
Welfare and Institutions Code section 15633 states that reports of suspected elder
abuse and information contained therein shall be confidential, and that “a violation of the
confidentiality required by this chapter is a misdemeanor punishable by not more than six
months in the county jail, by a fine of five hundred dollars, or by both the fine and
imprisonment.” (Welf. & Inst. Code §15633(a).)! Reports and the “information relevant to the
incident of elder or dependent adult abuse may be given to an investigator from an APS agency,
a local law enforcement agency, adistrict attorney's office, the Bureau of Medi Cal Fraud and
Elder Abuse, or investigators of the Department of Consumer Affairs, Division of Investigation,
who are investigating the known or suspected case of elder or dependent adult abuse." (Welf. &
Inst. Code §§ 15633(b), 15633.5(a).) Petitioner seeks a copy of the contents of an APS case file,
including reports conducted by Dr, Nievod atthe request of Adult Protective Services, which is
confidential and cannot be released here.
Further, Welfare and Institutions Code section 10850(a) states that "...all applications
and records concerning any individual made or kept by any public officer or agency in
connection with the administration of any provision of this code relating to any form of public
social services for which grants-in-aid are received by this state from the United States
government shall be confidential, and shall not be open to examination for any purpose not
directly connected with the administration of that program, or any investigation, prosecution, or
criminal or civil proceeding conducted in connection with the administration of any such
' All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; = 3 © NNSEALTHUSTLIAM SUBPEN Nach doe
MPAS AND SUPPORT DECL.; S/C # PTR-05-287341wo oN DAH FW NY =
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program." The Adult Protective Services program is funded in part by the United States
government. This matter does not affect the administration of any social service program. The
court should deny the request for a court order in this case,
Welf. & Inst. Code section 10850(b) allows a court to order an APS employee to testify
or to disclose relevant information in the context of "a petition for the appointment of a
conservator for a person who is receiving or has received aid from a pubic agency...or in the
context of a criminal prosecution for a violation of Section 368 of the Penal Code."? If the
Legislature intended to include all APS investigations in the specific types of cases where a court
can order the production of APS records or testimony, it would have done so. (Parmett v.
Superior Court (1989) 212 Cal.App.3d, 1261, 1266, citing Hildlife Alive v. Chickering (1976) 18
Cal.3d 190, 195 ["enumeration of specific exceptions precludes implying others;" court has no
jurisdiction to add additional exceptions].)
/ Further, an order from this Court requiring the Department to release any APS records or
testimony pertaining to this case would not only violate the confidentiality afforded by Welfare
and Institutions Code Sections 15633, 15633.5, and 10850, but would jeopardize the federal
funding essential to the operation of those programs. (See Sinacore v. Superior Court (1978) 81
Cal.App.3d 223, 227 [court order requiring production of confidential information under Welf. &
Inst. Code §10850 not related to administration of public social services program invalid].)
Finally, Department officials who release documents might be subjected to criminal prosecution.
B. The documents sought are privileged and cannot be released in this case.
Evidence Code section 1040(b) states that "[a] public entity has a privilege to refuse to
disclose official information, and to prevent another from disclosing official information, if the
2 Penal Code §368 provides criminal penalties for wilfull infliction of bodily harm on
elder or dependent adults.
OPPOS TO MTN. FOR CT. ORD & AUTH! TAKING OF DEPOS; - 4 NHEALTIUWILLIAM SUBPENAlaati dos,
MPAS AND SUPPORT DECL,; S/C # PTR-05-287341 :yw en nu FF WY N
privilege is claimed by a person authorized by the public entity to do so and (1) Disclosure is
forbidden by an act of the Congress of the United States or a statute of this state ... ."
Adult Protective Services, a public entity, asserts its privilege under Evidence Code
section 1040(b)(1) to object to the production of the requested records and testimony because the
documents qualify as official information under Evidence Code §1040(a) and their disclosure is
prohibited by state law.
. Evidence Code section 1040(a) defines “official information" as "...information acquired
in confidence by a public employee in the course of his or her duty and not open, or officially
disclosed, to the public prior to the time the claim of privilege is made."
Adult Protective Services employees are charged with the duty to receive reports of
suspected elder abuse, to investigate those reports, and to "take any actions considered necessary
to protect the elder or dependent adult and correct the situation and ensure the individual's
safety," (Welf. & Inst. Code §15600(i).) The identity of the reporting party and information
contained in reports of suspected abuse are acquired in confidence, and can only be disclosed
among persons or agencies authorized by statute. (See §15633(b).) Information contained in an
APS case file are not open or officially disclosed to the public; in fact, any violation of the
confidentiality required by §15633 is a misdemeanor punishable by up to six months in jail or a
fine of $500.00, or both. (§15633(a).)
Here, Carrie Wong, an investigating social worker employed by APS, received a
suspected report of elder abuse regarding Charles Actis on or about November 18, 2003.
(Declaration of Carrie Wong.) Asa result of her investigation, she received information, in
confidence, relating to the underlying allegations in the referral. In addition, based upon her
investigation in this case, Ms. Wong secured the services of Dr. Nievod to conduct an evaluation
in this case. APS has not disclosed the contents of the case file, which includes Dr. Nievod's
conclusions, to the public or to any unauthorized person or agency prohibited under law. (See
OPPOS TO MTN. FOR CT.ORD& AUTH TAKING OF DEPOS; 5 WOBALTIRINALLIASESUBPEN aah dos
MPAS AND SUPPORT DECL,; S/C # PTR-05-287341oOo eo NH WH F&F WY YY
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Declaration of Carrie Wong.) Therefore, the documents in question and any testimony relating
to those documents qualify as “official information" under Evidence Code §1040(b) and cannot
be disclosed.
Finally, any medical, psychological, or psychiatric records contained in the APS. file,
including any reports conducted by Dr. Nievod, are privileged under Evidence Code sections 994
and 1010 et seq.? Therefore, the documents sought here cannot be produced,
Ill, CONCLUSION oo : : - se
The San Francisco Adult Protective Services Agency cannot produce any records or give
testimony in response to petitioner's requests in this case. This opposition should be granted.
Dated: August 22, 2005 . Respectfully submitted,
DENNIS J. HERRERA
City Attorney
. WILLIAMS
City Attomey
3 Evidence Code §994 covers confidential communication between a patient and a
physician; Evidence Code §1010 et seq. covers confidential communication between a
patient and a psychotherpist.
OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; 6 NAMEALTHIWILLIAM SUBPENA\eath doc
MPAS AND SUPPORT DECL.; S/C # PTR-05-287341EXHIBIT A fC ¢ 982(a}(15.2)
/ RTTGRNEY OR PARTY WITHOUT ATTORNEY Nome, stele bar number, and address): FOR COURT USE ONLY
[- DEAN M. SPELLMAN 060042
1850 Mt. Diablo Blvd., Ste. 670
C ‘alnut Creek, CA 94596
TevepHone no: 925-938-5880 _faxno: 925-938-5882
ATTORNEY FOR (Name; CAROL MITCHELL
NAME OF COURT: UF: URT
streetaooress: 400 McAllister St.
MAILING ADDRESS:
cityanozecoo:San Francisco, CA 94102
BRANCH NAME:
PLAINTIFF/PETITIONER: CAROL MITCHELL
DEFENDANT/RESPONDENT: EVA V: KNOTT, Trustee and Benefi
under Revocable Living Trust Agr
DEPOSITION SUBPOENA CASE NUMBER:
For Production of Business Records PTR-05-287341
‘THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known);
Adult Protective Services c/o S.F. City Attorney, Attn: Cecilia Mangoba
1390 Market Street, 10th FL, San Francisco, CA 94102
1, YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described In Iter 3, as follows:
To (name of deposition officer): DEAN M. SPELLMAN
On (date): June 16, 2005 At (time): 10:00 a.m,
Location (address): 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596
Do not release the requested records to the deposition officer prior to the date and time stated above.
a. (C) by delivering a true, legible, and durable copy of the business records described in item 3, enclosed In a sealed inner
wrapper with the title and number of the action, name of witness, and date of subpoena clearly written on it. The inner
C wrapper shail then be enclosed in an outer envelope or wrapper, sealed, and mailed to the deposition officer et the
address in item 1.
“b. [XD by delivering a true, legible, and durable copy of the business records described in item 3 to the deposition officer at the
witness's address, on receipt of payment in cash or by check of the reasonable costs of preparing the copy, as determined
under Evidence Code section 1563(b).
c. (2) by making the original business records described in item 3 avaiable for inspection at your business address by the
attorney's representative and permitting copying at your business address under reasonable conditions during normal
business hours.
2. The records are to be produced by the date and time shown in item 7 (but not sooner than 20 days after the issuance of the
deposition subpoena, or 15 days after service, whichever date is later). Reasonable costs of locating records, making them
available or copying them, and postage, if any, ere recoverable as set forth in Evidence Code section 1563(b). The records shail be
accompanied by an affidavit of the custodian or other qualified witness pursuant to Evidence Code section 1561,
3. The records to be produced are described as follows:
[X) Continued on Attachment 3. .
4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER
CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN
SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE
AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS,
DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE
FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY.
Dateissued: May 25, 2005 > wh
Dv *N. M... SPELLMAN » )
\ (TYPE OR (SIRNATURE OF PERSON ISSUING SUBPOENA)
“ Attorney
(Proof of service on reverse) TTLEY
Fen Adoped fr Mangatny Ure DEPOSITION SUBPOENA FOR PRODUCTION Code of Ci Procedure,
sedtagt8 i hae Sasa 00) OF BUSINESS RECORDS GoverettCade 8087.
Maries Dean's Essential Forms ™M ACTIS, CHARLESC C
ACTIS, CHARLES San Francisco County Superior Court
. . Case No. PTR-05-287341
ATTACHMENT 3
TO DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS -
. ADULT PROTECTIVE SERVICES OF SAN FRANCISCO
Any and all documents which in any way telate to Charles Actis, including, but not
limited to, notes, letters, memorandums, telephone messages, pleadings, depositions,
video tapes, audio tapes, reports, records, documents of title and/or inventory.wo ory Dn UW F WN BK
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DEAN M. SPELLMAN, #060042
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
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
DECLARATION OF DEAN M.
SPELLMAN IN SUPPORT OF :
SUBPOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS
RECORDS OF SAN FRANCISCO
ADULT PROTECTIVE SERVICES
|, DEAN M. SPELLMAN, declare as follows:
1. | am an attorney at law licensed to practice before all courts of the State
of California and | am the attorney of record for petitioner, CAROL MITCHELL, in
connection with the above-captioned matter.
DECLARATION OF DEAN M. SPELLMAN IN
SUPPORT OF SUBPOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS RECORDS OF SAN
FRANCISCO ADULT PROTECTIVE SERVICESwo or nue Wn
wom NW YN HN NY KR BP BF BP BP PP Be Pe Pe ee
oxrwdiawes ow NF Ow @ I DO HW BF WH HF DOD
2. The petition filed by my client in the above entitled action alleges among
other things, that the decedent, CHARLES ACTIS, executed a will and trust while either
mentally incompetent or as a result of undue influence, or both..
3. SAN FRANCISCO ADULT PROTECTIVE SERVICES has in its
possession and under its control various documents relating to CHARLES ACTIS,
including, but not limited to, notes, letters, memorandums, telephone messages,
pleadings, depositions, video tapes, audio tapes, reports, records, documents of title
and/or inventory.
4. Each of the documents referenced above is material to the issue of this
- case because such documents relate to the mental capacity of CHARLES ACTIS and
relate.to the circumstances surrounding decedent's capacity and state of mind at, or
around the time of his execution of the subject trust and will.
5. Good cause exists for the production of said documents because such
documents are evidence of, or will lead to admissible evidence regarding the mental.
state of the decedent, the comprehension of decedent and his understanding of the
nature and consequences of his acts.
| declare under penalty of perjury that the foregoing is true and correct and that
this declaration was executed on May 25, 2005, at Walnut Creek, California.
—s
Y
DEAN M. SPBLLMAN, Attorney for
Petitioner
DECLARATION OF DEAN M. SPELLMAN IN
SUPPORT OF SUBPOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS RECORDS OF SAN
FRANCISCO ADULT PROTECTIVE SERVICESATTORNEY OR PARTY WITHOUT ATTORNEY (Name, A number, and #dcrass):
‘L DEAN M. SPELLMAN 060042
1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, CA 94596
FOR COURT USE ONLY
€ 982(a)(15.2)
tevepHone no: 925-938~5880 faxno: 925-938-5882
ATTORNEY FOR (Wane: CAROL MITCHELL
[name orcourr:SAN FRANCISCO SUPERIOR COURT = ———~S=S&Y
streetaooress: 400 McAllister St.
MAILING ADORESS:
crrvanozecoo:San Francisco, CA 94102
GRANCH NAME: .
PLAINTIFF/PETITIONER: CAROL MITCHELL
DEFENDANT/RESPONDENT: EVA V. KNOTT, Trustee and Benefi
under Revocable Living Trust Agr
DEPOSITION SUBPOENA CASE NUMBER:
For Production of Business Records PTR-05-287341
THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known)
DR. ABRAHAM NIEVOD, 1065 Mariposa Avenue, Berkeley, CA 94707
510-526-0700
1. YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described In item 3, as follows:
To (name of deposition officer): DEAN M. SPELLMAN
On (date): July 18, 2005 At(time): 10:00 a.m,
Location (address): 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596
t Do not release the requested records to the deposition officer prior to the date and time stated above.
a. (2) by delivering a true, legible, and durable copy of the business records described in item 3, enclosed in a sealed inner
. wrapper with the title and number of the action, name of witness, and date of subpoena clearly written on it. The Inner
( wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and mailed to the deposition officer at the
. address in item 1.
b. [KJ] by delivering a true, legible, and durable copy of the business records described in item 3 to the deposition officer at the
witness's address, on receipt of payment in cash or by check of the reasonable costs of preparing the copy, a3 determined
under Evidence Code section 1563(b).
c. (J by making the origina! business records described in item 3 available for inspection at your business address by the
attorney's representative and permitting copying at your business address under reasonable conditions during normat
business hours. ,
2. The records are to be produced by the date and time shown in item 7 (but not sooner than 20 days after the issuance of the
deposition subpoena, or 15 days after service, whichever date is later). Reasonable costs of locating records, making them
available or copying them, and postage, if any, ere recoverable as set forth in Evidence Code section 1563(b). The records shall be
accompanied by an affidavit of the custodian or other qualified witness pursuant to Evidence Code section 1561.
3. The records to be produced are described as follows:
(J Continued on Attachment 3.
4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER
CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN
SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE
AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS.
DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE
FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY,
Date issued: June 24, 2005 ys gf
-D NM. SPELLMAN
i . (TYPE . (sit IRE OF PERSON ISSUING SUBPOENA)
Attorney for Petitioner
(Proof of service on reverse)
Foun Adopted for Mandatory Use DEPOSITION SUBPOENA FOR PRODUCTION cua
coder peers means 2000} OF BUSINESS RECORDS Goverment Code coe BO8OIT |
‘Marta Dean's Essentist Forms ™ ACTIS, CHARLESC Cc
ACTIS, CHARLES San Francisco County Superior Court
Case No. PTR-05-287341
ATTACHMENT 3
TO DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS -
DR. ABRAHAM NIEVOD
Any and all documents which in any way relate to Charles Actis, including, but not
limited to, notes, letters, memorandums, records, telephone messages, pleadings,
depositions, video tapes, audio tapes and/or reports.ow Oat DH HH BB WwW NY
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DEAN M. SPELLMAN, #060042
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST Case Number PTR-05-287341
AGREEMENT OF CHARLES ACTIS .O
DATED NOVEMBER 2, 2004, AND WILL DECLARATION OF DEAN M.
DATED NOVEMBER 2, 2004 SPELLMAN IN SUPPORT OF
SUBPOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS
RECORDS OF ABRAHAM NIEVOD
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, aminor anda
will and trust beneficiary,
Respondents.
|, DEAN M. SPELLMAN, declare as follows:
1. lam an attorney at law licensed to practice before all courts of the State
of California and | am the attorney of record for petitioner, CAROL MITCHELL, in
connection with the above-captioned matter.
DECLARATION OF DEAN M. SPELLMAN IN
SUPPORT OF SUBPOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS RECORDS OF
ABRAHAM NIEVODba WN
ow ay nu
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2. The petition filed by my Client in the above entitled action alleges among
other things, that the decedent, CHARLES ACTIS, executed a will and trust while either
mentally incompetent or as a result of undue influence, or both..
3. ABRAHAM NIEVOD has in his possession and under his contro! various
documents relating to CHARLES ACTIS, including, but not limited to, notes, letters,
memorandums, records, telephone messages, pleadings, depositions, video tapes,
audio tapes and/or reports.
4, Each of the documents referenced above is material to the issue of this
case because such documents relate to the mental capacity of CHARLES ACTIS and
relate to the circumstances surrounding decedent's capacity and state of mind at, or
around the time of his execution of the subject trust and will.
5. , Good cause exists for the production of sald documents because such
documents are evidence of, or will lead to admissible evidence regarding the mental
state of the decedent, the comprehension of decedent and his understanding of the
nature and consequences of his acts.
| declare under penalty of perjury that the foregoing is true and correct and that
this declaration was executed on June 24, 2005, at Walnut Creek, California.
DEAN M. SRELLMAN, Attorney for
Petitioner
DECLARATION OP DEAN M. SPELLMAN IN
SUPPORT OF SUBFOENA DUCES TECUM FOR
PRODUCTION OF BUSINESS RECORDS OF
ABRAHAM NIEVODCo oe NY A WH fF WwW NHN —
N NNN Se Be ew ewe ee ee ee ee
BNRRRBRBBKRHRE SERA RBAEBHRAS
PROOF OF SERVICE
S.F. SUPERIOR COURT NO. PTR-05-287341
RE: THE REVOCABLE LIVING TRUST AND WILL OF CHARLES ACTIS;
CAROL MITCHELL, PETITIONER, VS. EVA KNOTT, NICHOLAS AND NATALIE
FERRERO, MINORS AND BENEFICIARIES, RESPONDENTS
I, MARILYN M. ROQUE, declare as follows:
Tam a citizen of the United States, over the age of eighteen years and not a party to the
within entitled action. Lam employed at the City Attorney’s Office of San Francisco, Fox Plaza
Building, 1390 Market Street, Tenth Floor, Suite 1008, San Francisco, CA 94102.
On August 23, 2005, I served the attached:
SAN FRANCISCO ADULT PROTECTIVE SERVICES AGENCY OPPOSITION TO
MOTION FOR COURT ORDER RELEASING CONFDIENTIAL INFORMATION
AND AUTHORIZING THE TAKING OF DEPOSITIONS; MEMORANDUM OF
POINTS AND AUTHORITIES AND DECLARATION IN SUPPORT THEREOF
on the interested parties in said action, by placing a true copy thereof in sealed envelope(s)
addressed as follows:
Dean M. Spellman, Esq. Mr. Larry Pickard
1850 Mr. Diablo Blvd., Suite 670 APS Supervisor, Financial Abuse Unit
Walnut Creek, CA 94596-4407 Ms. Carrie Won;
Protective Services Worker
David Friedenberg, Esq. Adult Protective Services
2171 Junipero Serra Blvd., #620 P.O.Box 7988
Daly City, CA 94014 San Francisco, CA 94120
Dr. Abraham Nievod Joe! Blackman, Esq.
1065 Mariposa Avenue San Francisco Public Guardian's Office
Berkeley, CA 94707 875 Stevenson St., 3 floor
San Francisco, CA 94103
Emest F. Der, Esq.
101 Howard Street, Suite 490
San Francisco, CA 94105
and served the named document in the manner indicated below:
bd BY MAIL: I caused true and correct copies of the above documents, by following ordinary business
practices, to be placed and sealed in envelope(s) addressed to the addressee(s), at the City Attomey’s Office
of San Francisco, Fox Plaza Building, 1390 Market Street, City and County of San Francisco, California,
94102, for collection and mailing with the United States Postal Service, and in the ordinary course of
business, correspondence placed for collection on a particular day is deposited with the United States Postal
Service that same day.
OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; 1 NTHEALTIRFETLLIAM SUBPENA aot oe
MPAS AND SUPPORT DECL,; S/C # PTR-05-287341Noe Se ew eB ew ee ee
BRRARRBRERBESERWARBDAEBSBAS
C €
BY PERSONAL SERVICE: | caused true and correct copies of the above documents to be placed
and sealed in envelope(s) addressed to the addressee(s) and I caused such envelope(s) to be delivered by
hand on the office(s) of the addressee{s).
BY EXPRESS SERVICES OVERNITE: I caused true and correct copies of the above
documents to be placed and sealed in envelope(s) addressed to the addressee(s) and I caused such
envelope(s) to be delivered to EXPRESS SERVICES OVERNITE for overnight courier service to the
office(s) of the addressee(s).
BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via facsimile machine,
The fax number of the machine from which the document was transmitted wasFax #’. The fax number(s) of
the machine(s) to which the document(s) were transmitted are listed above. The fax transmission was
reported as complete and without error. I caused the transmitting facsimile machine to print a transmission
record of the transmission, a copy of which is attached to this declaration.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed August 23, 2005, at San Francisco, California.
~nybegen—
MARILYNAY. ROQUE
OPPOS TO MTN. FOR CT. ORD & AUTII TAKING OF DEPOS; 2 NAHEALTHIWILLIAMSUBPENA etl doe,
MPAS AND SUPPORT DECL,; SC # PTR-05-287341
Preview
IITA San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Aug-25-2005 8:55 am Case Number: PTR-05-287341 Filing Date: Aug-23-2005 8:54 Juke Box: 001 Image: 01269471 OPPOSITION IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC 001P01269471 Instructions: : Please place this sheet on top of the document to be scanned.oO ea nN A UH FF YN & y vv RM Ne Se ee ew ee ee ee RBRRRRBRBRBSRBSARBDEBHEAS ORIGINAL DENNIS J. HERRERA, State Bar #139669 City Attorney ALEETA M. VAN RUNKLE, State Bar #124563 JENNIFER K.WILLIAMS, State Bar #166853 Deputy City Attorneys Fox Plaza . . 1390 Market Street, 10 Floor, Suite 1008 San Francisco, California 94102-5408 Telephone: (415) 554-3812 Facsimile: (415) 557-6747 Adult Protective Services (APS) IN THE REVOCABLE LIVING TRUST AGREEMENT AND WILL OF CHARLES ACTIS CAROL MITCHELL, Petitioner, Vv. EVA KNOTT, Trustee and Beneficiary CLF, Clow ARK-LI, Clr MC ND |n Osputy Cleric Attorneys for the City and County of San Francisco, SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO Case No. PTR-05-287341 OPPOSITION OF SAN FRANCISCO ADULT PROTECTIVE SERVICES' TO MOTION FOR COURT ORDER RELEASING CONFIDENTIAL INFORMATION AND AUTHORIZING THE TAKING OF DEPOSITIONS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION under the REVOCABLE LIVING TRUST IN SUPPORT THEREOF AGREEMENT OF CHARLES ACTIS, and NICHOLAS and NATALIE Hearing Date: September 2, 2005 FERRERO, minors and beneficiaries, Time: 9:00 a.m. Place: Dept. 612 Respondents. Judge: The Honorable John Dearman Attached Documents: Deposition Subpoenas NOTICE OF OPPOSITION TO PETITIONER CAROL MITCHELL: order requiring the taking of certain depositions. OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; MPAS AND SUPPORT DECL.; S/C # PTR-05-287341 1 PLEASE TAKE NOTICE THAT on September 2, 2005, at 9:00 a.m. in Department 612 of the above-referenced Court, the San Francisco Adult Protective Services Agency will and hereby does oppose petitioner's request for an order producing confidential documents and an NAHEALTHUWILLIAM SUBPENA aa oe0 me YN ND HW YW DN Cc C This opposition will be based upon this notice of opposition, the memorandum of points and authorities below, the documents on file herein, and such other oral and documentary evidence as may be presented at the hearing. Dated: August 22, 2005 Respectfully submitted, DENNIS J. HERRERA City Attorney- py: Mure Milter UY JENNIFER K. WILLIAMS Deputy City Attorney Attomeys for the City and County of San Francisco, Adult Protective Services MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF OPPOSITION I. SUMMARY OF DOCUMENTS SOUGHT BY PETITIONER On or about May 25, 2005, petitioner Carol Mitchell served a deposition subpoena for production of business records on the San Francisco Adult Protective Services Agency seeking Adult Protective Services records. On or about June 24, 2005, petitioner served a similar subpoena on Dr. Abraham Nievod for the same purpose. The records sought by the subpoenas are as follows: Petitioner seeks "any and all documents which in any way relate to Charles Actis, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, records, documents of title and/or inventory." When APS refused to comply with this subpoena, petitioner then filed a motion for the court to order compliance. APS opposes the request for a court order in this case because the information sought by petitioner's subpoenas is confidential and privileged under state law. OPPOS TO MIN. FOR CT. ORD & AUTH TAKING OF DEPOS; 2 . NHEALTHUWILLIAMSUBPENA oats doe, MPAS AND SUPPORT DECL.; S/C # PTR-05-287341Uo oN A NH FF YW HN vu PNR OR Nee aa a a ei BRRRRBBERBSEAARATDEBHRSS Attached as Exhibit A are copies of the deposition subpoenas. Il LEGAL ARGUMENT A. The requested Adult Protective Services records are confidential and cannot be released in this case. Welfare and Institutions Code section 15633 states that reports of suspected elder abuse and information contained therein shall be confidential, and that “a violation of the confidentiality required by this chapter is a misdemeanor punishable by not more than six months in the county jail, by a fine of five hundred dollars, or by both the fine and imprisonment.” (Welf. & Inst. Code §15633(a).)! Reports and the “information relevant to the incident of elder or dependent adult abuse may be given to an investigator from an APS agency, a local law enforcement agency, adistrict attorney's office, the Bureau of Medi Cal Fraud and Elder Abuse, or investigators of the Department of Consumer Affairs, Division of Investigation, who are investigating the known or suspected case of elder or dependent adult abuse." (Welf. & Inst. Code §§ 15633(b), 15633.5(a).) Petitioner seeks a copy of the contents of an APS case file, including reports conducted by Dr, Nievod atthe request of Adult Protective Services, which is confidential and cannot be released here. Further, Welfare and Institutions Code section 10850(a) states that "...all applications and records concerning any individual made or kept by any public officer or agency in connection with the administration of any provision of this code relating to any form of public social services for which grants-in-aid are received by this state from the United States government shall be confidential, and shall not be open to examination for any purpose not directly connected with the administration of that program, or any investigation, prosecution, or criminal or civil proceeding conducted in connection with the administration of any such ' All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated. OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; = 3 © NNSEALTHUSTLIAM SUBPEN Nach doe MPAS AND SUPPORT DECL.; S/C # PTR-05-287341wo oN DAH FW NY = NY N BH WN N mmm meet BNRNRBRRBBRNYFBSBSEWARARBHRAS C C program." The Adult Protective Services program is funded in part by the United States government. This matter does not affect the administration of any social service program. The court should deny the request for a court order in this case, Welf. & Inst. Code section 10850(b) allows a court to order an APS employee to testify or to disclose relevant information in the context of "a petition for the appointment of a conservator for a person who is receiving or has received aid from a pubic agency...or in the context of a criminal prosecution for a violation of Section 368 of the Penal Code."? If the Legislature intended to include all APS investigations in the specific types of cases where a court can order the production of APS records or testimony, it would have done so. (Parmett v. Superior Court (1989) 212 Cal.App.3d, 1261, 1266, citing Hildlife Alive v. Chickering (1976) 18 Cal.3d 190, 195 ["enumeration of specific exceptions precludes implying others;" court has no jurisdiction to add additional exceptions].) / Further, an order from this Court requiring the Department to release any APS records or testimony pertaining to this case would not only violate the confidentiality afforded by Welfare and Institutions Code Sections 15633, 15633.5, and 10850, but would jeopardize the federal funding essential to the operation of those programs. (See Sinacore v. Superior Court (1978) 81 Cal.App.3d 223, 227 [court order requiring production of confidential information under Welf. & Inst. Code §10850 not related to administration of public social services program invalid].) Finally, Department officials who release documents might be subjected to criminal prosecution. B. The documents sought are privileged and cannot be released in this case. Evidence Code section 1040(b) states that "[a] public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the 2 Penal Code §368 provides criminal penalties for wilfull infliction of bodily harm on elder or dependent adults. OPPOS TO MTN. FOR CT. ORD & AUTH! TAKING OF DEPOS; - 4 NHEALTIUWILLIAM SUBPENAlaati dos, MPAS AND SUPPORT DECL,; S/C # PTR-05-287341 :yw en nu FF WY N privilege is claimed by a person authorized by the public entity to do so and (1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state ... ." Adult Protective Services, a public entity, asserts its privilege under Evidence Code section 1040(b)(1) to object to the production of the requested records and testimony because the documents qualify as official information under Evidence Code §1040(a) and their disclosure is prohibited by state law. . Evidence Code section 1040(a) defines “official information" as "...information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made." Adult Protective Services employees are charged with the duty to receive reports of suspected elder abuse, to investigate those reports, and to "take any actions considered necessary to protect the elder or dependent adult and correct the situation and ensure the individual's safety," (Welf. & Inst. Code §15600(i).) The identity of the reporting party and information contained in reports of suspected abuse are acquired in confidence, and can only be disclosed among persons or agencies authorized by statute. (See §15633(b).) Information contained in an APS case file are not open or officially disclosed to the public; in fact, any violation of the confidentiality required by §15633 is a misdemeanor punishable by up to six months in jail or a fine of $500.00, or both. (§15633(a).) Here, Carrie Wong, an investigating social worker employed by APS, received a suspected report of elder abuse regarding Charles Actis on or about November 18, 2003. (Declaration of Carrie Wong.) Asa result of her investigation, she received information, in confidence, relating to the underlying allegations in the referral. In addition, based upon her investigation in this case, Ms. Wong secured the services of Dr. Nievod to conduct an evaluation in this case. APS has not disclosed the contents of the case file, which includes Dr. Nievod's conclusions, to the public or to any unauthorized person or agency prohibited under law. (See OPPOS TO MTN. FOR CT.ORD& AUTH TAKING OF DEPOS; 5 WOBALTIRINALLIASESUBPEN aah dos MPAS AND SUPPORT DECL,; S/C # PTR-05-287341oOo eo NH WH F&F WY YY BRN N NM KR NN SF Se Be Be ew Se eB Be Se RBS RRBREBEKEHR BE SGRDTABEBRAS Declaration of Carrie Wong.) Therefore, the documents in question and any testimony relating to those documents qualify as “official information" under Evidence Code §1040(b) and cannot be disclosed. Finally, any medical, psychological, or psychiatric records contained in the APS. file, including any reports conducted by Dr. Nievod, are privileged under Evidence Code sections 994 and 1010 et seq.? Therefore, the documents sought here cannot be produced, Ill, CONCLUSION oo : : - se The San Francisco Adult Protective Services Agency cannot produce any records or give testimony in response to petitioner's requests in this case. This opposition should be granted. Dated: August 22, 2005 . Respectfully submitted, DENNIS J. HERRERA City Attorney . WILLIAMS City Attomey 3 Evidence Code §994 covers confidential communication between a patient and a physician; Evidence Code §1010 et seq. covers confidential communication between a patient and a psychotherpist. OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; 6 NAMEALTHIWILLIAM SUBPENA\eath doc MPAS AND SUPPORT DECL.; S/C # PTR-05-287341EXHIBIT A fC ¢ 982(a}(15.2) / RTTGRNEY OR PARTY WITHOUT ATTORNEY Nome, stele bar number, and address): FOR COURT USE ONLY [- DEAN M. SPELLMAN 060042 1850 Mt. Diablo Blvd., Ste. 670 C ‘alnut Creek, CA 94596 TevepHone no: 925-938-5880 _faxno: 925-938-5882 ATTORNEY FOR (Name; CAROL MITCHELL NAME OF COURT: UF: URT streetaooress: 400 McAllister St. MAILING ADDRESS: cityanozecoo:San Francisco, CA 94102 BRANCH NAME: PLAINTIFF/PETITIONER: CAROL MITCHELL DEFENDANT/RESPONDENT: EVA V: KNOTT, Trustee and Benefi under Revocable Living Trust Agr DEPOSITION SUBPOENA CASE NUMBER: For Production of Business Records PTR-05-287341 ‘THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known); Adult Protective Services c/o S.F. City Attorney, Attn: Cecilia Mangoba 1390 Market Street, 10th FL, San Francisco, CA 94102 1, YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described In Iter 3, as follows: To (name of deposition officer): DEAN M. SPELLMAN On (date): June 16, 2005 At (time): 10:00 a.m, Location (address): 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596 Do not release the requested records to the deposition officer prior to the date and time stated above. a. (C) by delivering a true, legible, and durable copy of the business records described in item 3, enclosed In a sealed inner wrapper with the title and number of the action, name of witness, and date of subpoena clearly written on it. The inner C wrapper shail then be enclosed in an outer envelope or wrapper, sealed, and mailed to the deposition officer et the address in item 1. “b. [XD by delivering a true, legible, and durable copy of the business records described in item 3 to the deposition officer at the witness's address, on receipt of payment in cash or by check of the reasonable costs of preparing the copy, as determined under Evidence Code section 1563(b). c. (2) by making the original business records described in item 3 avaiable for inspection at your business address by the attorney's representative and permitting copying at your business address under reasonable conditions during normal business hours. 2. The records are to be produced by the date and time shown in item 7 (but not sooner than 20 days after the issuance of the deposition subpoena, or 15 days after service, whichever date is later). Reasonable costs of locating records, making them available or copying them, and postage, if any, ere recoverable as set forth in Evidence Code section 1563(b). The records shail be accompanied by an affidavit of the custodian or other qualified witness pursuant to Evidence Code section 1561, 3. The records to be produced are described as follows: [X) Continued on Attachment 3. . 4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS, DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY. Dateissued: May 25, 2005 > wh Dv *N. M... SPELLMAN » ) \ (TYPE OR (SIRNATURE OF PERSON ISSUING SUBPOENA) “ Attorney (Proof of service on reverse) TTLEY Fen Adoped fr Mangatny Ure DEPOSITION SUBPOENA FOR PRODUCTION Code of Ci Procedure, sedtagt8 i hae Sasa 00) OF BUSINESS RECORDS GoverettCade 8087. Maries Dean's Essential Forms ™M ACTIS, CHARLESC C ACTIS, CHARLES San Francisco County Superior Court . . Case No. PTR-05-287341 ATTACHMENT 3 TO DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS - . ADULT PROTECTIVE SERVICES OF SAN FRANCISCO Any and all documents which in any way telate to Charles Actis, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, records, documents of title and/or inventory.wo ory Dn UW F WN BK 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEAN M. SPELLMAN, #060042 1850 Mt. Diablo Bivd., Ste. 670 Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL 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 DECLARATION OF DEAN M. SPELLMAN IN SUPPORT OF : SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF SAN FRANCISCO ADULT PROTECTIVE SERVICES |, DEAN M. SPELLMAN, declare as follows: 1. | am an attorney at law licensed to practice before all courts of the State of California and | am the attorney of record for petitioner, CAROL MITCHELL, in connection with the above-captioned matter. DECLARATION OF DEAN M. SPELLMAN IN SUPPORT OF SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF SAN FRANCISCO ADULT PROTECTIVE SERVICESwo or nue Wn wom NW YN HN NY KR BP BF BP BP PP Be Pe Pe ee oxrwdiawes ow NF Ow @ I DO HW BF WH HF DOD 2. The petition filed by my client in the above entitled action alleges among other things, that the decedent, CHARLES ACTIS, executed a will and trust while either mentally incompetent or as a result of undue influence, or both.. 3. SAN FRANCISCO ADULT PROTECTIVE SERVICES has in its possession and under its control various documents relating to CHARLES ACTIS, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, records, documents of title and/or inventory. 4. Each of the documents referenced above is material to the issue of this - case because such documents relate to the mental capacity of CHARLES ACTIS and relate.to the circumstances surrounding decedent's capacity and state of mind at, or around the time of his execution of the subject trust and will. 5. Good cause exists for the production of said documents because such documents are evidence of, or will lead to admissible evidence regarding the mental. state of the decedent, the comprehension of decedent and his understanding of the nature and consequences of his acts. | declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on May 25, 2005, at Walnut Creek, California. —s Y DEAN M. SPBLLMAN, Attorney for Petitioner DECLARATION OF DEAN M. SPELLMAN IN SUPPORT OF SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF SAN FRANCISCO ADULT PROTECTIVE SERVICESATTORNEY OR PARTY WITHOUT ATTORNEY (Name, A number, and #dcrass): ‘L DEAN M. SPELLMAN 060042 1850 Mt. Diablo Blvd., Ste. 670 Walnut Creek, CA 94596 FOR COURT USE ONLY € 982(a)(15.2) tevepHone no: 925-938~5880 faxno: 925-938-5882 ATTORNEY FOR (Wane: CAROL MITCHELL [name orcourr:SAN FRANCISCO SUPERIOR COURT = ———~S=S&Y streetaooress: 400 McAllister St. MAILING ADORESS: crrvanozecoo:San Francisco, CA 94102 GRANCH NAME: . PLAINTIFF/PETITIONER: CAROL MITCHELL DEFENDANT/RESPONDENT: EVA V. KNOTT, Trustee and Benefi under Revocable Living Trust Agr DEPOSITION SUBPOENA CASE NUMBER: For Production of Business Records PTR-05-287341 THE PEOPLE OF THE STATE OF CALIFORNIA, TO (name, address, and telephone number of deponent, if known) DR. ABRAHAM NIEVOD, 1065 Mariposa Avenue, Berkeley, CA 94707 510-526-0700 1. YOU ARE ORDERED TO PRODUCE THE BUSINESS RECORDS described In item 3, as follows: To (name of deposition officer): DEAN M. SPELLMAN On (date): July 18, 2005 At(time): 10:00 a.m, Location (address): 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596 t Do not release the requested records to the deposition officer prior to the date and time stated above. a. (2) by delivering a true, legible, and durable copy of the business records described in item 3, enclosed in a sealed inner . wrapper with the title and number of the action, name of witness, and date of subpoena clearly written on it. The Inner ( wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and mailed to the deposition officer at the . address in item 1. b. [KJ] by delivering a true, legible, and durable copy of the business records described in item 3 to the deposition officer at the witness's address, on receipt of payment in cash or by check of the reasonable costs of preparing the copy, a3 determined under Evidence Code section 1563(b). c. (J by making the origina! business records described in item 3 available for inspection at your business address by the attorney's representative and permitting copying at your business address under reasonable conditions during normat business hours. , 2. The records are to be produced by the date and time shown in item 7 (but not sooner than 20 days after the issuance of the deposition subpoena, or 15 days after service, whichever date is later). Reasonable costs of locating records, making them available or copying them, and postage, if any, ere recoverable as set forth in Evidence Code section 1563(b). The records shall be accompanied by an affidavit of the custodian or other qualified witness pursuant to Evidence Code section 1561. 3. The records to be produced are described as follows: (J Continued on Attachment 3. 4. IF YOU HAVE BEEN SERVED WITH THIS SUBPOENA AS A CUSTODIAN OF CONSUMER OR EMPLOYEE RECORDS UNDER CODE OF CIVIL PROCEDURE SECTION 1985.3 OR 1985.6 AND A MOTION TO QUASH OR AN OBJECTION HAS BEEN SERVED ON YOU, A COURT ORDER OR AGREEMENT OF THE PARTIES, WITNESSES, AND CONSUMER OR EMPLOYEE AFFECTED MUST BE OBTAINED BEFORE YOU ARE REQUIRED TO PRODUCE CONSUMER OR EMPLOYEE RECORDS. DISOBEDIENCE OF THIS SUBPOENA MAY BE PUNISHED AS CONTEMPT BY THIS COURT. YOU WILL ALSO BE LIABLE FOR THE SUM OF FIVE HUNDRED DOLLARS AND ALL DAMAGES RESULTING FROM YOUR FAILURE TO OBEY, Date issued: June 24, 2005 ys gf -D NM. SPELLMAN i . (TYPE . (sit IRE OF PERSON ISSUING SUBPOENA) Attorney for Petitioner (Proof of service on reverse) Foun Adopted for Mandatory Use DEPOSITION SUBPOENA FOR PRODUCTION cua coder peers means 2000} OF BUSINESS RECORDS Goverment Code coe BO8OIT | ‘Marta Dean's Essentist Forms ™ ACTIS, CHARLESC Cc ACTIS, CHARLES San Francisco County Superior Court Case No. PTR-05-287341 ATTACHMENT 3 TO DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS - DR. ABRAHAM NIEVOD Any and all documents which in any way relate to Charles Actis, including, but not limited to, notes, letters, memorandums, records, telephone messages, pleadings, depositions, video tapes, audio tapes and/or reports.ow Oat DH HH BB WwW NY 10 Cc € DEAN M. SPELLMAN, #060042 1850 Mt. Diablo Bivd., Ste. 670 Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST Case Number PTR-05-287341 AGREEMENT OF CHARLES ACTIS .O DATED NOVEMBER 2, 2004, AND WILL DECLARATION OF DEAN M. DATED NOVEMBER 2, 2004 SPELLMAN IN SUPPORT OF SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF ABRAHAM NIEVOD 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, aminor anda will and trust beneficiary, Respondents. |, DEAN M. SPELLMAN, declare as follows: 1. lam an attorney at law licensed to practice before all courts of the State of California and | am the attorney of record for petitioner, CAROL MITCHELL, in connection with the above-captioned matter. DECLARATION OF DEAN M. SPELLMAN IN SUPPORT OF SUBPOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF ABRAHAM NIEVODba WN ow ay nu 10 11 12 13 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 C C 2. The petition filed by my Client in the above entitled action alleges among other things, that the decedent, CHARLES ACTIS, executed a will and trust while either mentally incompetent or as a result of undue influence, or both.. 3. ABRAHAM NIEVOD has in his possession and under his contro! various documents relating to CHARLES ACTIS, including, but not limited to, notes, letters, memorandums, records, telephone messages, pleadings, depositions, video tapes, audio tapes and/or reports. 4, Each of the documents referenced above is material to the issue of this case because such documents relate to the mental capacity of CHARLES ACTIS and relate to the circumstances surrounding decedent's capacity and state of mind at, or around the time of his execution of the subject trust and will. 5. , Good cause exists for the production of sald documents because such documents are evidence of, or will lead to admissible evidence regarding the mental state of the decedent, the comprehension of decedent and his understanding of the nature and consequences of his acts. | declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on June 24, 2005, at Walnut Creek, California. DEAN M. SRELLMAN, Attorney for Petitioner DECLARATION OP DEAN M. SPELLMAN IN SUPPORT OF SUBFOENA DUCES TECUM FOR PRODUCTION OF BUSINESS RECORDS OF ABRAHAM NIEVODCo oe NY A WH fF WwW NHN — N NNN Se Be ew ewe ee ee ee ee BNRRRBRBBKRHRE SERA RBAEBHRAS PROOF OF SERVICE S.F. SUPERIOR COURT NO. PTR-05-287341 RE: THE REVOCABLE LIVING TRUST AND WILL OF CHARLES ACTIS; CAROL MITCHELL, PETITIONER, VS. EVA KNOTT, NICHOLAS AND NATALIE FERRERO, MINORS AND BENEFICIARIES, RESPONDENTS I, MARILYN M. ROQUE, declare as follows: Tam a citizen of the United States, over the age of eighteen years and not a party to the within entitled action. Lam employed at the City Attorney’s Office of San Francisco, Fox Plaza Building, 1390 Market Street, Tenth Floor, Suite 1008, San Francisco, CA 94102. On August 23, 2005, I served the attached: SAN FRANCISCO ADULT PROTECTIVE SERVICES AGENCY OPPOSITION TO MOTION FOR COURT ORDER RELEASING CONFDIENTIAL INFORMATION AND AUTHORIZING THE TAKING OF DEPOSITIONS; MEMORANDUM OF POINTS AND AUTHORITIES AND DECLARATION IN SUPPORT THEREOF on the interested parties in said action, by placing a true copy thereof in sealed envelope(s) addressed as follows: Dean M. Spellman, Esq. Mr. Larry Pickard 1850 Mr. Diablo Blvd., Suite 670 APS Supervisor, Financial Abuse Unit Walnut Creek, CA 94596-4407 Ms. Carrie Won; Protective Services Worker David Friedenberg, Esq. Adult Protective Services 2171 Junipero Serra Blvd., #620 P.O.Box 7988 Daly City, CA 94014 San Francisco, CA 94120 Dr. Abraham Nievod Joe! Blackman, Esq. 1065 Mariposa Avenue San Francisco Public Guardian's Office Berkeley, CA 94707 875 Stevenson St., 3 floor San Francisco, CA 94103 Emest F. Der, Esq. 101 Howard Street, Suite 490 San Francisco, CA 94105 and served the named document in the manner indicated below: bd BY MAIL: I caused true and correct copies of the above documents, by following ordinary business practices, to be placed and sealed in envelope(s) addressed to the addressee(s), at the City Attomey’s Office of San Francisco, Fox Plaza Building, 1390 Market Street, City and County of San Francisco, California, 94102, for collection and mailing with the United States Postal Service, and in the ordinary course of business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. OPPOS TO MTN. FOR CT. ORD & AUTH TAKING OF DEPOS; 1 NTHEALTIRFETLLIAM SUBPENA aot oe MPAS AND SUPPORT DECL,; S/C # PTR-05-287341Noe Se ew eB ew ee ee BRRARRBRERBESERWARBDAEBSBAS C € BY PERSONAL SERVICE: | caused true and correct copies of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) and I caused such envelope(s) to be delivered by hand on the office(s) of the addressee{s). BY EXPRESS SERVICES OVERNITE: I caused true and correct copies of the above documents to be placed and sealed in envelope(s) addressed to the addressee(s) and I caused such envelope(s) to be delivered to EXPRESS SERVICES OVERNITE for overnight courier service to the office(s) of the addressee(s). BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via facsimile machine, The fax number of the machine from which the document was transmitted wasFax #’. The fax number(s) of the machine(s) to which the document(s) were transmitted are listed above. The fax transmission was reported as complete and without error. I caused the transmitting facsimile machine to print a transmission record of the transmission, a copy of which is attached to this declaration. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed August 23, 2005, at San Francisco, California. ~nybegen— MARILYNAY. ROQUE OPPOS TO MTN. FOR CT. ORD & AUTII TAKING OF DEPOS; 2 NAHEALTHIWILLIAMSUBPENA etl doe, MPAS AND SUPPORT DECL,; SC # PTR-05-287341