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28
MANATT, PHELPS &
PHILLIPS, LLP
Arrounnys AT Law
Saw Faaneiscs
MANATT, PHELPS & PHILLIPS, LLP
BARRY W. LEE (Bar No. CA 088685)
JORDAN P. ROSE (Bar No. CA 054437)
GARY D. ROTHSTEIN (Bar No. CA 143157)
ANDREW A. BASSAK (Bar No. CA 162440)
ELECTRONICALLY
FILED
CHRISTOPHER A, RHEINHEIMER (Bar No. CA 253890) Superior Court of California,
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Telephone: (415) 291-7400
Faosimile: (415) 291-7474
Attorneys for Petitioner
Bruce H. Qvale, Family Trustee
County of San Francisco
FEB 11 2014
Clerk of the Court
BY: NOELIA RIVERA
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
In the Matter of the
Kathryn C. Qvale Exempt Marital Trust,
dated January 31, 2006
311421655.2
Case No. PTR-13-297016
PETITIONER BRUCE H. QVALE,
- FAMILY TRUSTEE’S NOTICE OF
ERRATA RE REQUEST FOR JUDICIAL
NOTICE IN SUPPORT OF MOTION TO
STRIKE MILES JEFFREY QVALE,
TRUSTEE’S CROSS-PETITION FOR
APPOINTMENT OF SUCCESSOR
INDEPENDENT TRUSTEE TO FILL
VACANCY
Date: March 5, 2014 Date approved
Time: 2:30 p.m. by Rosie
Dept.: 204
Judge: Andrew Cheng
NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITION28
Manatt, PHELPS &
Painips, LLP
AproRNEYS AT LAM
Sas Praxciseo
TO THE COURT, TO ALL PARTIES, AND TO THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that on January 31, 2014, Petitioner Bruce H. Qvale,
Family Trustee (“Bruce”), filed his Motion to Strike the Cross-Petition. An e-filing docket entry
was created for the Petitioner Bruce H. Qvale, Family Trustee’s Request For Judicial Notice In
Support Of Motion To Strike Miles Jeffrey Qvale, Trustee’s Cross-Petition For Appointment Of
Successor Independent Trustee To Fill Vacancy (the “Request for Judicial Notice”) in support of
the Motion. Due to an administrative error, however, a duplicate of the Motion to Strike
indicated to be the Request for J udicial Notice was inadvertently e-filed instead of the Request for
Judicial Notice. Notwithstanding that administrative error, the Request for Judicial Notice
nevertheless was properly served on the parties, a courtesy copy was provided to the Court, and a
substantively identical Request for Judicial Notice was accurately filed in Case No. PTR-13-
297017. In order to correct the inadvertent filing of the duplicate version of the Motion To Strike,
Bruce attaches as Exhibit A The Request for Judicial Notice in Support of the Motion to Strike
Miles Jeffrey Qvale, Trustee’s Cross-Petition for Appointment of Successor Independent Trustee
to Fill Vacancy.
Dated: February 11,2014 MANATT, PHELPS & LIPS, LLP
Christopher A. Rheinheimer
Attorneys for Petitioner
Bruce H. Qvale, Family Trustee
By:
31$421655.2
NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITION28
MANATT, PHEL?S &
Pritips, LLP
ANtoRNaYs AT EAW
San Feancisco
PROOF OF SERVICE
I, Michelle A. Chavez, declare as follows:
lam employed in San Francisco County, San Francisco, California. [am over the
age of eighteen years and not a party to this action. My business address is MANATT, PHELPS
& PHILLIPS, LLP, One Embarcadero Center, 30th Floor, San Francisco, California 94111. On
February 11, 2014, I served the within:
PETITIONER BRUCE H, QVALE, FAMILY TRUSTEE’S NOTICE OF ERRATA RE
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE
MILES JEFFREY QVALE, TRUSTEE’S CROSS-PETITION FOR APPOINTMENT
OF SUCCESSOR INDEPENDENT TRUSTEE TO FILL VACANCY
on the interested parties in this action addressed as follows:
Please see attached Service List.
x] (BY ELECTRONIC MAIL) By transmitting such document(s) electronically from my e-
mail address, mchavez@manatt.com at Manatt, Phelps & Phillips, LLP, San Francisco,
California, to the person(s) at the electronic mail addresses listed above. The transmission
was reported as complete and without error.
(BY MAIL) By placing such document(s) in a sealed envelope, with postage thereon fully
prepaid for first class mail, for collection and mailing at Manatt, Phelps & Phillips, LLP,
San Francisco, California following ordinary business practice. ] am readily familiar with
the practice at Manatt, Phelps & Phillips, LLP for collection and processing of
correspondence for mailing with the United States Postal Service, said practice being that
in the ordinary course of business, correspondence is deposited in the United States Postal
Service the same day as it is placed for collection.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on February 11, 2014, at
San Francisco, California.
Midll, Li Mawes.
Michelle A. Chavez
313421655.2
NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITIONEXHIBIT A1 | MANATT, PHELPS & PHILLIPS, LLP
BARRY W. LEE (Bar No. CA 088685)
2 | JORDAN P. ROSE (Bar No. CA 054437)
GARY D, ROTHSTEIN (Bar No. CA 143187)
3 | ANDREW A. BASSAK (Bar No. CA 162440)
CHRISTOPHER A, RHEINHEIMER (Bar No. CA 253890)
44 One Embarcadero Center, 30th Floor
San Francisco, CA 94111
5 | Telephone: (415) 291-7400
Paesimile: (418) 291-7474
Attorneys for Petitioner
7 4 Bruce H, Qvale, Family Trustee
g
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
V1
Case No, PTR-13-297016
12 Tn the Matter of the
PETITIONER BRUCE H. QVALE,
13 Kathryn C, Qvale Exempt Marital Trust, FAMILY TRUSTEE’S REQUEST FOR
dated January 31, 2006 JUDICIAL NOTICE IN SUPPORT OF
14 MOTION TO STRIKE MILES JEFFREY
OVALE, TRUSTEE’S CROSS-PETITION
15 FOR APPOINTMENT OF SUCCESSOR
INDEPENDENT TRUSTEE TO FILL
16 VACANCY
7 Date: March 5, 2014 Date approved
Time: 2:30 p.m. by Rosie
18 Dept.: 204
Judge: Andrew Cheng
19
20
21
22
23
24
25
26
27
3113894221
BRUCE fH. QVALE, FAMILY TRUSTEE’S RIN ISO MOTION TO STRIKE CROSS-PETITION26
28
Manat, PHBLES &
PHiuies, LLP
ATTORNEYS AT Law
San Praaerscn
Pursuant to Code of Civil Procedure section 437(b), California Rule of Court
3.1306, and California Evidence Code section 452, Petitioner Bruce H. Qvale, Family Trustee,
hereby requests that the Court take judicia! notice of the following documents in ruling on the
Motion to Strike:
i Attached hereto as Exhibit 1 is a true and correct copy of the email sent
from counsel for Jeff Qvale to counsel for Bruce Qvale demanding certain documents. Judicial
notice is proper pursuant to Evidence Code section 452(h),
Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP
yf Lin
W. Lee
Attorneys for Petitioner
Bruce H, Qvale, Family ‘Trustee
BL389422.4
BRUCE H. QVALE, FAMILY TRUSTEE’S RIN ISO MOTION TO STRIKE CROSS-PETITIONExhibit 1Rheinheimer, Christopher
Redacted
From: Peter Muhs [mailto:PMuhs@cewdclaw.com]
Sent: Friday, January 24, 2014 5:46 PM
To: Rose, Jordan; ‘Dominic J. Campisi’
Cc: Bernadette Daly; Rothstein, Gary; Martin, Suzanne
Subject: RE: Certification of Trust - Survivor's Trust
Dear Jordan,
In connection with your firm's representation of Bruce Qvale and Laura Hiura as co-trustees of various Kjell
and Kathryn Qvale trusts, | want to renew Dom Campisi’s requests in his December 13 email to you (part of
the chain below) for various documents and information needed to be reviewed on behalf of Jeff Qvale in
connection with his duties as co-trustee, and also to request additional current information in connection with
post-death tax and other administration mattersWhen you responded to Dom in your December 20 email (also part of the chain), you wrote that you would be
considering the document and information requests and that you would respond in due course. It is now five
weeks later, and neither Dom nor | have received any additional documents or information (or any further
response from Gary Rothstein or you).
We now have an upcoming hearing in 10 days, on February 3, as well as a request by Dom for an evidentiary
hearing. Dom has advised me he intends to take Laura's deposition before the evidentiary hearing is
conducted. To facilitate that deposition, he needs copies of all estate pianning and related personal financial
documents of Kjell that she was aware of, including circulated drafts as well as executed versions, and
communications with Dr. Smith and the medical doctors on estate planning and capacity issues.
In particular, based on references In the various estate planning documents we already have, it appears that
various amendments or restatements of the Survivor's Trust and/or exercises of the powers of appointment
over the two Marital Trusts were executed in May 2010, August and December 2011, and June and October
2012, as well as the ones signed on January 30, 2013.
Also, Dr. Smith's October 2012 report strongly suggested that Kjell be provided with simplified concise written
explanations of his estate planning and any revisions to it, and we will want to see any such communications
for the changes since 2010. We also want to see any memoranda (such as a signing memo) or notes
pertaining to Kjell’s review and execution of his estate planning documents.
In connection with assisting Jeff with ongoing and prospective trust administrative functions, | would also like to
receive, as scon as components are available, the following information:
1. Copy of the federal estate tax return (including exhibits) and audit report for the Kathryn Qvale estate.
2. Copy of 2012 federal tax returns for the Exempt Marital Trust and for any partnerships, including 40
Goid Street, in which Kjell had a direct or indirect interest and for which Laura or her staff either
maintained the financial records or processed the partnership returns with the accountants.
3. Copy of Kjell’s most recant balance sheet assembied by Laura and any previous ones prepared as of
the end of 2011 or subsequentiy.
4. Copy of any estate tax estimates prepared in 2012 or subsequently.
§. Copy of any income summary for 2013-for the period prior to Kjell’s death.
6. Copy of any analysis made on the deductibility of Rita's payments for estate tax purposes and, if she is
more than 37-1/2 years youinger than Kjell, for generation-skipping transfer tax purposes. (| noted that
Rita was listed as a skip person in the 2010 gift tax return; of course, itis possible that a wrong birth
date was used for either Rita or Kjell in preparing that return.)
7. Copies of any future financial information for the trusts as communicated by Laura to your firm or to the
trustees’ accountants,
8. Copies of brokerage, bank and outside partnership statements for the period since Kjell’s death, (
understand that Jeff currently receives at least some of these statements, and for future periods copies
could be forwarded by Laura or come directly from the financial institutfons.)
Dom and | leok forward to hearing from you (and receiving the documents and information) at your earliest
convenience.
Sincerely,
PeterPeter L. Muns
Cooper, White & Cooper, LLP
201 California Street, 17th Floor
San Francisco, CA 94111-5002
Tet: (415) 433-1900
Fax: (415) 433-5530
email: pmuhs@cwclaw.com
From: Rose, Jordan [mailto:JRose@manatt,com]
Sent: Friday, December 20, 2013 10:08 AM
To: ‘Dominic J. Campisi'; Peter Muhs
Cc: Bernadette Daly; Rothstein, Gary; Martin, Suzanne
Subject: RE: Certification of Trust - Survivor's Trust
in response to your email, please note that Jeff accepted the trusteeship of the Survivor's Trust, the Nonexempt Marital
Trust, and the Exempt Marital Trust on July 25, 2013 and is currently serving as a co-trustee of gach of those trusts. In
connection with participating as a co-trustee of those trusts, Jeff has previously been provided with a copy of the currently
effective estate planning documents. We have just received a draft of the current balance sheets for the various trusis
and are reviewing them for accuracy. We will forward those to you following our review.
The Survivor's Trust has pending banking business at Bank of the West that cannot be completed without Jeff's signature
on the Certification of Trust. As you know, a Certification of Trust must be signed by all of the currently acting trustees of
the trust. Thus, Jeff's signature on the Certification of Trust, which includes the Survivor's Trust's new Taxpayer
identification No., is necessary before Bank of the West will be able to take even the elementary step of opening the new
trust account. We do not understand Jeff's reluctance to proceed with the effective administration of the Survivor's Trust
by signing the Certification of Trust. Not only has he accepted the trusteeship and acted in such capacity, he previously
executed a Certification of Trust with respect to the Survivor's Trust on August 12, 2013. Please advise whether Jeff will
sign the Certification of Trust or, if he will not, please provide an expianation for his deciining to undertake this
straightforward and routine task of trust administration.
As you are aware, the Petitions for Instructions relating to the previously proposed recapitalization and merger
transactions have been withdrawn and are off-calendar. Consequently, Jeffs request for documents pertaining to
the foregoing is moot.
We note your comments pertaining to conflicts, but we do net understand your concerns in that regard. Please provide
further explanation and clarification with respect to any specific conflict issues that you, believe exist.
We are considering Jeff's other requests for documents and information, and will respond to those in due course. [n the
meantime, we have noticed that you copied Laura Hiura on your email, Manatt represents Ms. Hiura in her capacity as a
co-trustee of the various Qvale Trusts. Accordingly, piease do net communicate about this matter directly with Ms, Hiura,
but direct aif communications to this office. Thank you for your cooperation ih this regard.
Jordan P. Rose
Manatt, Phelps & Phillips LLP
One Embarcadero Center
San Francisco, CA 94114
Tek: (445) 291-7429
Fax: (415) 291-7478
From: Dominic J. Campisi [mailto: Campisi@elc-law.com
Sent: Friday, December 13, 2013 12:23 PM
To: Rose, Jordan; Peter Muhs; Rothstein, GaryCc: 'Laura Hiura‘; Bernadette Daly
Subject: RE: Certfication of Trust - Survivor's Trust
Peter has forwarded your emai! to me. You may recall that Peter had written to you on several occasions to obtain
clocumentation which Jeff Qvale needs review as part of his duties as co-trustee of various trusts established by his
parents over the years. As you know, all of these documents named him as a successor co-trustee on the incompetence
or death of Kjell Qvale.
Jeff has a duty to review the assets and transactions involved in the various trusts and to determine whether he needs
to marshall assets or raise claims on behalf of the respective trusts, At the same time you have filed several petitions
and proposed major changes in the structure of the Qvale Automotive Group and other entities, whose ordinary or
preferred shares are held in several of the trusts of which he is a named trustee. In order to evaluate these proposed
transactions, most of which involve conflicts of interest by Bruce as co-trustee of the various trusts, including those
holding stock, Jeff and his counsel will need other information as well.
The petitions you filed do not disclase any of these matters and were not served initially to the beneficiaries and other
interested persons entitled to notice. Where the personal interests of these interested persons are being reduced in
value, and those held by Bruce are being enhanced, detailed disclosure is absolutely necessary for the parties and the
court to evaluate the propriety of the actions proposed as well as the conflicts involved.
AS a successor trustee Jeff has a right to obtain advice provided to his predecessor trustee, and hence Peter on his
behalf requested such information from you. You refused to provide based on the assertion that he no longer needed it
in his role as holder of a power of attorney, He clearly has such right to obtain such information as a co-trustee. That is
exactly the situation contained in the Moeller decision cited to you, As in Borisoff, as a successor fiduciary Jeff is entitled
to advice provided to his predecessor, as described in detail by the Supreme Court. Hence one of the classes of
information he needs involves advice your firm provided Kjei! about the various stock and asset transactions as well as
estate planning advice. If you are unfamiliar with this case law, | would be happy to amplify the effect of the supreme
court cases cited in Peter’s emails to you as well as the eviderice code provisions dealing with such documents and
advice.
You may recall that Jeff raised questions with you regarding his father’s mental state in December, January and
February, including information about the request he made to you by phone, in Jeff's presence, to rescind the transfer of
various notes which was done in January of 2013. Bruce has now publicly disclosed that Kjell suffered from dementia
during the last year of his fife, confirming some of the cognitive problems Jeff observed during that period. Hence, in
order to deal with the certification of trust and the other issues confronting the trusts, Jeff needs the documents
requested, as well as additional information relevant to the major changes you are proposing in your petitions, as well as
actions threatened by Bruce in the future to impact the shares held in trusts by his beneficiaries.
Peter specifically requested in writing information about the various decuments presented to Dr. Smith and treating
physicians, which information was used by Dr. Smith in evaluating iell’s capacity and freedom from undue influence. In
specific, Peter requested on behalf of Jeff the estate planning summaries given to Dr. Smith on each occasion when he
evaluated Kjell’s competence and freedom from undue influence. Please provide such summaries promptly—these
were requested in October and several times thereafter.
Jeff had also requested all amended or revised trust instruments which had been executed as of January 1, 2011. It
appears that other amendments to the various trusts or will may have been executed between the time af the mother’s
death and the changes signed on January 30, 2013. Please provide these so we will have a complete package of the
respective documents. If no such Interim amendments exist, please confirm this fact to us.
We also need Dr. Smith report from April or May of 2013, which apparently was shown to the treating physicians who
opined on his fack of capacity and his vulnerability to fraud and undue influence.The summaries of
Preview
28 MANATT, PHELPS & PHILLIPS, LLP Arrounnys AT Law Saw Faaneiscs MANATT, PHELPS & PHILLIPS, LLP BARRY W. LEE (Bar No. CA 088685) JORDAN P. ROSE (Bar No. CA 054437) GARY D. ROTHSTEIN (Bar No. CA 143157) ANDREW A. BASSAK (Bar No. CA 162440) ELECTRONICALLY FILED CHRISTOPHER A, RHEINHEIMER (Bar No. CA 253890) Superior Court of California, One Embarcadero Center, 30th Floor San Francisco, CA 94111 Telephone: (415) 291-7400 Faosimile: (415) 291-7474 Attorneys for Petitioner Bruce H. Qvale, Family Trustee County of San Francisco FEB 11 2014 Clerk of the Court BY: NOELIA RIVERA Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO In the Matter of the Kathryn C. Qvale Exempt Marital Trust, dated January 31, 2006 311421655.2 Case No. PTR-13-297016 PETITIONER BRUCE H. QVALE, - FAMILY TRUSTEE’S NOTICE OF ERRATA RE REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE MILES JEFFREY QVALE, TRUSTEE’S CROSS-PETITION FOR APPOINTMENT OF SUCCESSOR INDEPENDENT TRUSTEE TO FILL VACANCY Date: March 5, 2014 Date approved Time: 2:30 p.m. by Rosie Dept.: 204 Judge: Andrew Cheng NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITION28 Manatt, PHELPS & Painips, LLP AproRNEYS AT LAM Sas Praxciseo TO THE COURT, TO ALL PARTIES, AND TO THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on January 31, 2014, Petitioner Bruce H. Qvale, Family Trustee (“Bruce”), filed his Motion to Strike the Cross-Petition. An e-filing docket entry was created for the Petitioner Bruce H. Qvale, Family Trustee’s Request For Judicial Notice In Support Of Motion To Strike Miles Jeffrey Qvale, Trustee’s Cross-Petition For Appointment Of Successor Independent Trustee To Fill Vacancy (the “Request for Judicial Notice”) in support of the Motion. Due to an administrative error, however, a duplicate of the Motion to Strike indicated to be the Request for J udicial Notice was inadvertently e-filed instead of the Request for Judicial Notice. Notwithstanding that administrative error, the Request for Judicial Notice nevertheless was properly served on the parties, a courtesy copy was provided to the Court, and a substantively identical Request for Judicial Notice was accurately filed in Case No. PTR-13- 297017. In order to correct the inadvertent filing of the duplicate version of the Motion To Strike, Bruce attaches as Exhibit A The Request for Judicial Notice in Support of the Motion to Strike Miles Jeffrey Qvale, Trustee’s Cross-Petition for Appointment of Successor Independent Trustee to Fill Vacancy. Dated: February 11,2014 MANATT, PHELPS & LIPS, LLP Christopher A. Rheinheimer Attorneys for Petitioner Bruce H. Qvale, Family Trustee By: 31$421655.2 NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITION28 MANATT, PHEL?S & Pritips, LLP ANtoRNaYs AT EAW San Feancisco PROOF OF SERVICE I, Michelle A. Chavez, declare as follows: lam employed in San Francisco County, San Francisco, California. [am over the age of eighteen years and not a party to this action. My business address is MANATT, PHELPS & PHILLIPS, LLP, One Embarcadero Center, 30th Floor, San Francisco, California 94111. On February 11, 2014, I served the within: PETITIONER BRUCE H, QVALE, FAMILY TRUSTEE’S NOTICE OF ERRATA RE REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION TO STRIKE MILES JEFFREY QVALE, TRUSTEE’S CROSS-PETITION FOR APPOINTMENT OF SUCCESSOR INDEPENDENT TRUSTEE TO FILL VACANCY on the interested parties in this action addressed as follows: Please see attached Service List. x] (BY ELECTRONIC MAIL) By transmitting such document(s) electronically from my e- mail address, mchavez@manatt.com at Manatt, Phelps & Phillips, LLP, San Francisco, California, to the person(s) at the electronic mail addresses listed above. The transmission was reported as complete and without error. (BY MAIL) By placing such document(s) in a sealed envelope, with postage thereon fully prepaid for first class mail, for collection and mailing at Manatt, Phelps & Phillips, LLP, San Francisco, California following ordinary business practice. ] am readily familiar with the practice at Manatt, Phelps & Phillips, LLP for collection and processing of correspondence for mailing with the United States Postal Service, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for collection. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on February 11, 2014, at San Francisco, California. Midll, Li Mawes. Michelle A. Chavez 313421655.2 NOTICE OF ERRATA RE RIN ISO MOTION TO STRIKE CROSS-PETITIONEXHIBIT A1 | MANATT, PHELPS & PHILLIPS, LLP BARRY W. LEE (Bar No. CA 088685) 2 | JORDAN P. ROSE (Bar No. CA 054437) GARY D, ROTHSTEIN (Bar No. CA 143187) 3 | ANDREW A. BASSAK (Bar No. CA 162440) CHRISTOPHER A, RHEINHEIMER (Bar No. CA 253890) 44 One Embarcadero Center, 30th Floor San Francisco, CA 94111 5 | Telephone: (415) 291-7400 Paesimile: (418) 291-7474 Attorneys for Petitioner 7 4 Bruce H, Qvale, Family Trustee g SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 V1 Case No, PTR-13-297016 12 Tn the Matter of the PETITIONER BRUCE H. QVALE, 13 Kathryn C, Qvale Exempt Marital Trust, FAMILY TRUSTEE’S REQUEST FOR dated January 31, 2006 JUDICIAL NOTICE IN SUPPORT OF 14 MOTION TO STRIKE MILES JEFFREY OVALE, TRUSTEE’S CROSS-PETITION 15 FOR APPOINTMENT OF SUCCESSOR INDEPENDENT TRUSTEE TO FILL 16 VACANCY 7 Date: March 5, 2014 Date approved Time: 2:30 p.m. by Rosie 18 Dept.: 204 Judge: Andrew Cheng 19 20 21 22 23 24 25 26 27 3113894221 BRUCE fH. QVALE, FAMILY TRUSTEE’S RIN ISO MOTION TO STRIKE CROSS-PETITION26 28 Manat, PHBLES & PHiuies, LLP ATTORNEYS AT Law San Praaerscn Pursuant to Code of Civil Procedure section 437(b), California Rule of Court 3.1306, and California Evidence Code section 452, Petitioner Bruce H. Qvale, Family Trustee, hereby requests that the Court take judicia! notice of the following documents in ruling on the Motion to Strike: i Attached hereto as Exhibit 1 is a true and correct copy of the email sent from counsel for Jeff Qvale to counsel for Bruce Qvale demanding certain documents. Judicial notice is proper pursuant to Evidence Code section 452(h), Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP yf Lin W. Lee Attorneys for Petitioner Bruce H, Qvale, Family ‘Trustee BL389422.4 BRUCE H. QVALE, FAMILY TRUSTEE’S RIN ISO MOTION TO STRIKE CROSS-PETITIONExhibit 1Rheinheimer, Christopher Redacted From: Peter Muhs [mailto:PMuhs@cewdclaw.com] Sent: Friday, January 24, 2014 5:46 PM To: Rose, Jordan; ‘Dominic J. Campisi’ Cc: Bernadette Daly; Rothstein, Gary; Martin, Suzanne Subject: RE: Certification of Trust - Survivor's Trust Dear Jordan, In connection with your firm's representation of Bruce Qvale and Laura Hiura as co-trustees of various Kjell and Kathryn Qvale trusts, | want to renew Dom Campisi’s requests in his December 13 email to you (part of the chain below) for various documents and information needed to be reviewed on behalf of Jeff Qvale in connection with his duties as co-trustee, and also to request additional current information in connection with post-death tax and other administration mattersWhen you responded to Dom in your December 20 email (also part of the chain), you wrote that you would be considering the document and information requests and that you would respond in due course. It is now five weeks later, and neither Dom nor | have received any additional documents or information (or any further response from Gary Rothstein or you). We now have an upcoming hearing in 10 days, on February 3, as well as a request by Dom for an evidentiary hearing. Dom has advised me he intends to take Laura's deposition before the evidentiary hearing is conducted. To facilitate that deposition, he needs copies of all estate pianning and related personal financial documents of Kjell that she was aware of, including circulated drafts as well as executed versions, and communications with Dr. Smith and the medical doctors on estate planning and capacity issues. In particular, based on references In the various estate planning documents we already have, it appears that various amendments or restatements of the Survivor's Trust and/or exercises of the powers of appointment over the two Marital Trusts were executed in May 2010, August and December 2011, and June and October 2012, as well as the ones signed on January 30, 2013. Also, Dr. Smith's October 2012 report strongly suggested that Kjell be provided with simplified concise written explanations of his estate planning and any revisions to it, and we will want to see any such communications for the changes since 2010. We also want to see any memoranda (such as a signing memo) or notes pertaining to Kjell’s review and execution of his estate planning documents. In connection with assisting Jeff with ongoing and prospective trust administrative functions, | would also like to receive, as scon as components are available, the following information: 1. Copy of the federal estate tax return (including exhibits) and audit report for the Kathryn Qvale estate. 2. Copy of 2012 federal tax returns for the Exempt Marital Trust and for any partnerships, including 40 Goid Street, in which Kjell had a direct or indirect interest and for which Laura or her staff either maintained the financial records or processed the partnership returns with the accountants. 3. Copy of Kjell’s most recant balance sheet assembied by Laura and any previous ones prepared as of the end of 2011 or subsequentiy. 4. Copy of any estate tax estimates prepared in 2012 or subsequently. §. Copy of any income summary for 2013-for the period prior to Kjell’s death. 6. Copy of any analysis made on the deductibility of Rita's payments for estate tax purposes and, if she is more than 37-1/2 years youinger than Kjell, for generation-skipping transfer tax purposes. (| noted that Rita was listed as a skip person in the 2010 gift tax return; of course, itis possible that a wrong birth date was used for either Rita or Kjell in preparing that return.) 7. Copies of any future financial information for the trusts as communicated by Laura to your firm or to the trustees’ accountants, 8. Copies of brokerage, bank and outside partnership statements for the period since Kjell’s death, ( understand that Jeff currently receives at least some of these statements, and for future periods copies could be forwarded by Laura or come directly from the financial institutfons.) Dom and | leok forward to hearing from you (and receiving the documents and information) at your earliest convenience. Sincerely, PeterPeter L. Muns Cooper, White & Cooper, LLP 201 California Street, 17th Floor San Francisco, CA 94111-5002 Tet: (415) 433-1900 Fax: (415) 433-5530 email: pmuhs@cwclaw.com From: Rose, Jordan [mailto:JRose@manatt,com] Sent: Friday, December 20, 2013 10:08 AM To: ‘Dominic J. Campisi'; Peter Muhs Cc: Bernadette Daly; Rothstein, Gary; Martin, Suzanne Subject: RE: Certification of Trust - Survivor's Trust in response to your email, please note that Jeff accepted the trusteeship of the Survivor's Trust, the Nonexempt Marital Trust, and the Exempt Marital Trust on July 25, 2013 and is currently serving as a co-trustee of gach of those trusts. In connection with participating as a co-trustee of those trusts, Jeff has previously been provided with a copy of the currently effective estate planning documents. We have just received a draft of the current balance sheets for the various trusis and are reviewing them for accuracy. We will forward those to you following our review. The Survivor's Trust has pending banking business at Bank of the West that cannot be completed without Jeff's signature on the Certification of Trust. As you know, a Certification of Trust must be signed by all of the currently acting trustees of the trust. Thus, Jeff's signature on the Certification of Trust, which includes the Survivor's Trust's new Taxpayer identification No., is necessary before Bank of the West will be able to take even the elementary step of opening the new trust account. We do not understand Jeff's reluctance to proceed with the effective administration of the Survivor's Trust by signing the Certification of Trust. Not only has he accepted the trusteeship and acted in such capacity, he previously executed a Certification of Trust with respect to the Survivor's Trust on August 12, 2013. Please advise whether Jeff will sign the Certification of Trust or, if he will not, please provide an expianation for his deciining to undertake this straightforward and routine task of trust administration. As you are aware, the Petitions for Instructions relating to the previously proposed recapitalization and merger transactions have been withdrawn and are off-calendar. Consequently, Jeffs request for documents pertaining to the foregoing is moot. We note your comments pertaining to conflicts, but we do net understand your concerns in that regard. Please provide further explanation and clarification with respect to any specific conflict issues that you, believe exist. We are considering Jeff's other requests for documents and information, and will respond to those in due course. [n the meantime, we have noticed that you copied Laura Hiura on your email, Manatt represents Ms. Hiura in her capacity as a co-trustee of the various Qvale Trusts. Accordingly, piease do net communicate about this matter directly with Ms, Hiura, but direct aif communications to this office. Thank you for your cooperation ih this regard. Jordan P. Rose Manatt, Phelps & Phillips LLP One Embarcadero Center San Francisco, CA 94114 Tek: (445) 291-7429 Fax: (415) 291-7478 From: Dominic J. Campisi [mailto: Campisi@elc-law.com Sent: Friday, December 13, 2013 12:23 PM To: Rose, Jordan; Peter Muhs; Rothstein, GaryCc: 'Laura Hiura‘; Bernadette Daly Subject: RE: Certfication of Trust - Survivor's Trust Peter has forwarded your emai! to me. You may recall that Peter had written to you on several occasions to obtain clocumentation which Jeff Qvale needs review as part of his duties as co-trustee of various trusts established by his parents over the years. As you know, all of these documents named him as a successor co-trustee on the incompetence or death of Kjell Qvale. Jeff has a duty to review the assets and transactions involved in the various trusts and to determine whether he needs to marshall assets or raise claims on behalf of the respective trusts, At the same time you have filed several petitions and proposed major changes in the structure of the Qvale Automotive Group and other entities, whose ordinary or preferred shares are held in several of the trusts of which he is a named trustee. In order to evaluate these proposed transactions, most of which involve conflicts of interest by Bruce as co-trustee of the various trusts, including those holding stock, Jeff and his counsel will need other information as well. The petitions you filed do not disclase any of these matters and were not served initially to the beneficiaries and other interested persons entitled to notice. Where the personal interests of these interested persons are being reduced in value, and those held by Bruce are being enhanced, detailed disclosure is absolutely necessary for the parties and the court to evaluate the propriety of the actions proposed as well as the conflicts involved. AS a successor trustee Jeff has a right to obtain advice provided to his predecessor trustee, and hence Peter on his behalf requested such information from you. You refused to provide based on the assertion that he no longer needed it in his role as holder of a power of attorney, He clearly has such right to obtain such information as a co-trustee. That is exactly the situation contained in the Moeller decision cited to you, As in Borisoff, as a successor fiduciary Jeff is entitled to advice provided to his predecessor, as described in detail by the Supreme Court. Hence one of the classes of information he needs involves advice your firm provided Kjei! about the various stock and asset transactions as well as estate planning advice. If you are unfamiliar with this case law, | would be happy to amplify the effect of the supreme court cases cited in Peter’s emails to you as well as the eviderice code provisions dealing with such documents and advice. You may recall that Jeff raised questions with you regarding his father’s mental state in December, January and February, including information about the request he made to you by phone, in Jeff's presence, to rescind the transfer of various notes which was done in January of 2013. Bruce has now publicly disclosed that Kjell suffered from dementia during the last year of his fife, confirming some of the cognitive problems Jeff observed during that period. Hence, in order to deal with the certification of trust and the other issues confronting the trusts, Jeff needs the documents requested, as well as additional information relevant to the major changes you are proposing in your petitions, as well as actions threatened by Bruce in the future to impact the shares held in trusts by his beneficiaries. Peter specifically requested in writing information about the various decuments presented to Dr. Smith and treating physicians, which information was used by Dr. Smith in evaluating iell’s capacity and freedom from undue influence. In specific, Peter requested on behalf of Jeff the estate planning summaries given to Dr. Smith on each occasion when he evaluated Kjell’s competence and freedom from undue influence. Please provide such summaries promptly—these were requested in October and several times thereafter. Jeff had also requested all amended or revised trust instruments which had been executed as of January 1, 2011. It appears that other amendments to the various trusts or will may have been executed between the time af the mother’s death and the changes signed on January 30, 2013. Please provide these so we will have a complete package of the respective documents. If no such Interim amendments exist, please confirm this fact to us. We also need Dr. Smith report from April or May of 2013, which apparently was shown to the treating physicians who opined on his fack of capacity and his vulnerability to fraud and undue influence.The summaries of