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Manart, PHELPS &
Paiiiirs, LLP
Artouesys AY Law
Sass FRanersce
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
Superior Court of California,
CHRISTOPHER A. RHEINHEIMER (Bar No. CA 253890) County of San Francisee
One Embarcadero Center, 30th Floor
San Francisco, CA 94111
Telephone: (415) 291-7400
Facsimile: (415) 291-7474
Attorneys for Petitioner
Bruce H. Qvale, Family Trustee
JAN 31 2014
Clerk of the Court
BY: LESLIE GOMEZ
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
BRESB94KS.E
Case No. PTR-13-297016
PETITIONER BRUCE H. QVALE,
FAMILY TRUSTEE’S NOTICE OF
MOTION AND MOTION TO STRIKE
MILES JEFFREY QVALE, TRUSTEE’S
CROSS-PETITION FOR APPOINTMENT
OF SUCCESSOR INDEPENDENT
TRUSTEE TO FILL VACANCY;
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
Date: March 5, 2014 Date approved
Time: 2:30 p.m, by Rosie
Dept: 204
Judge: Andrew Cheng
BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28
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NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on March 5, 2014 at 2:30 p.m., or as soon thereafter
as this matter may be heard in the Probate Department, Room 204 of the above-entitled Court
located at 400 McAllister Street, San Francisco, California 94102, Petitioner Bruce H. Qvale, in
his capacity as Family Trustee of the above referenced trust (“Bruce”), will and hereby does
move to strike the Cross-Petition filed by Cross-Petitioner Miles Jeffrey Qvale, in his capacity as
Family Trustee of the above referenced trust (“Jeff”).
This Motion is based on the grounds that Jeff, as Trustee, filed the Cross-Petition
for an improper purpose and that the Cross-Petition is a sham pleading designed to permit Jeff to
engage in a discovery fishing expedition prior to his filing of a contest to the Trust.
This Motion is based upon this Notice of Motion and Motion; the Memorandum of
Points and Authorities in support thereof; the Request for Judicial Notice; the pleadings on file,
and upon such argument and further documents or materials as may be presented at or prior to the
hearing on this Motion.
Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP
Ligh &
By: gp RA fee
Barfy W. Lee
Attorneys for Petitioner
Bruce H. Qvale, Family Trustee
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MEMORANDUM OF POINTS AND AUTHORITIES
1 INTRODUCTION AND FACTUAL BACKGROUND
Miles Jeff Qvale, Trustee (“Jeff”) filed a Cross-Petition for Appointment of
Successor Independent Trustee to Fill Vacancy (“Cross-Petition”) on January 3, 2014, both to
challenge the Kathryn C. Qvale Exempt Marital Trust, dated January 31, 2006 (the “Exempt
Marital Trust”), and to justify seeking discovery to support his broader challenge to Kjell and
Kathryn Qvale’s entire estate plan (the “Qvale Estate Plan”)'. The Cross-Petition contests the
Exempt Marital Trust and the Qvale Estate Plan by improperly expanding its defined term
“Independent Trustee” beyond the settlors’ intent such that, according to Jeff, the Independent
Trustee must have no connections to either Jeff or Bruce Qvale or the business dealings of either
sibling, and alleging that settlor Kjell Qvale’s (“Kjell”) intended and preferred Independent
Trustee, Laura Hiura, is not independent and has purported conflicts of interest due to her
employment at QAG.
Jeffs challenge to Ms. Hiura is disingenuous. First, Ms. Hiura is Kjell’s hand-
selected Independent Trustee as set forth in the Statement of Intention, a document that Jeff
chooses to ignore against Kjell’s express wishes. Second, and equally important, Ms. Hiura has
been a trustee of other related trusts for 18 months, and indeed, has assisted in the administration
of the Exempt Marital Trust for many months, without a single objection from Jeff. In every
material respect, until submitting his sham Cross-Petition (and recently by filing of his
Preliminary Response to Petition for Appointment of Successor Independent Trustee to Fill
Vacancy in this matter on December 23, 2013), Jeff has never once challenged Ms. Hiura or any
of her decisions or proposals.
' The Qvale Estate Plan includes the following documents: (i) 2002 Restatement of the Trust Agreement for the Kjell
and Kathryn Qvale Family Trust Dated June 2, 1983, dated December 5, 2002; (ii) First Amendment to the 2002
Restatement of the Trust Agreement for the Kjell and Kathryn Qvale Family Trust Dated June 2, 1983, dated
February 11, 2004; (iii) Second Amendment to the 2002 Restatement of the Trust Agreement for the Kjell and
Kathryn Qvale Family Trust Dated June 2, 1983, dated July 2, 2004; (iv) Statement of Intention with Respect to
Successor Independent Trustee for The Kathryn C. Qvale Exempt Marital Trust dated January 31, 2006 and the
Kathryn C. Qvale Nonexempt Marital Trust Dated January 31, 2006, executed June 20, 2012; (v) Exercise of Power
of Appointment by Kjell H. Qvale for The Kathryn C. Qvale Exempt Marital Trust, dated January 30, 2013;
(vi) Exercise of Power of Appointment by Kjell H. Qvale for The Kathryn C. Qvale Nonexempt Marital Trust, dated
January 30, 2013; and (vii) Amended and Restated Declaration of Trust for the Kjell H. Qvale Survivor's Trust Dated
January 30, 2013.
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Jeff purportedly seeks the appointment of Mr. Malone as “Independent Trustee”
instead of Ms. Hiura. But the Cross-Petition makes clear that is not really Jeff"s primary goal.
Indeed, Ms. Hiura is admittedly a co-trustee for numerous other trusts as to which Bruce and Jeff
are also co-trustees, and Jeff has never challenged her qualifications or abilities. Only now, as the
deadline for Jeffs ability to contest the terms and distributions of his parents’ various Trusts is
nearing expiration, has he decided to take action against Ms, Hiura. And, tellingly, the Cross-
Petition focuses largely on discovery and allegations irrelevant to the terms of the Exempt Marital
Trust and, instead, focuses on discovery and allegations that Jeff hopes will support his planned
contest of the Qvale Estate Plan.
Simply put, Jeff in his capacity as Trustee is not permitted to use these proceedings
ag an attempt to launch a risk-free fishing expedition to attempt to bolster a potential contest for
Jeff as beneficiary. The Cross-Petition is improper and a sham and should be stricken in its
entirety.
H. ARGUMENT
A. Legal Standard
“The court may, upon a motion . . . and upon terms it deems proper: (a) strike out
any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436.)
Thus, “{a] trial court has authority to strike sham pleadings ....” (Ricard v. Grobstein, Goldman,
Sievenson, Siegel, LeVine & Mangei (1992) 6 Cal.App.4th 157, 162; see also Lyons v. Wickhorst
(1986) 42 Cal.3d 911, 915 [dismissal with prejudice permitted where “complaint has been shown
to be ‘fictitious or sham’”].) The grounds establishing the sham nature of the pleadings must
either appear on the face of the challenged pleading or be subject to judicial notice. (Code Civ.
Proc. § 437.)
Here, the Cross-Petition was brought as an improper attempt to justify discovery to
assist Jeff as a beneficiary in his potential contest of the Qvale Estate Plan in his misguided belief
that the Cross-Petition was not itself a contest. Therefore, as set forth more fully below, the Court
should strike the Cross-Petition in its entirety as a sham pleading.
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B. The Cross-Petition is an Improper Sham Pleading and Should By Stricken in
its Entirety
1. The Cross-Petition is Contrary to the Settlor’s Express Intent and
Misconstrues “Independent Trustee”
Kjell, as a settlor of the Trusts, expressly stated his intention for the Independent
Trustee after the prior Independent Trustee declined to continue serving: Laura Hiura. (See
Cross-Petition { 6 [referring to Statement of Intention, attached to Petition as Exhibit 2],) Kjell
explained that her appointment was preferred because she already was designated by Kjell to
serve as the Independent Trustee of the Survivor’s Trust, and “[t]o promote efficient
administration of the Exempt Marital Trust, the Nonexempt Marital Trust, and the Survivor's
Trust, it is important for the same individuals to serve as Trustees of the Exempt Marital Trust,
the Nonexempt Marital Trust, and the Survivor's Trust.” (/bid.)
Indeed, this expression of intent was consistent with Kjel!’s and Kathryn’s initial
selection of an “Independent Trustee”--Don Endo—whose declination to serve as the trustee
resulted in the vacancy that Ms. Hiura is being appointed to fill. Wid.) Don Endo was an
employee of QAG when Kjell and Kathryn designated him to be the Independent Trustee—the
very same “conflict” that supposedly renders Ms. Hiura unfit to serve in such role. (See Report of
Guardian Ad Litem 49.) Jeffs Cross-Petition asserts a definition of Independent Trustee that
subverts Kjell’s and Kathryn’s original intent, as evidenced by their selection of Don Endo as the
initial Independent Trustee, and Kjell’s restated intent as expressed in the Statement of Intention.
Kjell and Don Endo took all steps that were available to them to cause Ms. Hiura
to be the successor Independent Trustee. Mr. Endo was serving as the Independent Trustee of
numerous related trusts for the benefit of Kjell and Kathryn Qvale’s grandchildren. When he
resigned as the Independent Trustee of those trusts, he affirmatively designated Ms, Hiura as his
successor, and she has been serving as the Independent Trustee of each of those trusts for more
than 18 months. Kjell, at a time when he knew that Ms. Hiura was an employee of Bruce’s at
QAG, intentionally designated Ms. Hiura as the Independent Trustee of his Survivor’s Trust. The
only trusts with respect to which Mr. Endo could not designate his successor and Kjell could not
designate the Independent Trustee were the Exempt Marital Trust and the Nonexempt Marital
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Trust. With respect to those trusts, Kjell made his intention clear that he wished Ms. Hiura to
serve as successor Independent Trustee.
2. The Cross-Petition is an Unpermitted Attempt to Seek Discovery By
Jeff as Trustee in Order to Enable Jeff as Beneficiary to Contest the
Qvale Estate Plan
The Cross-Petition is a blatant attempt by Jeff, Trustee, to seek discovery to
support a contest of the Qvale Estate Plan by Jeff, Beneficiary. Indeed, the Cross-Petition shows
its true colors by identifying a broad scope of discovery supposedly necessary for the Cross-
Petition—but actually necessary only for Jeff to bolster his misguided and meritless contest as
beneficiary. (See, e.g., Cross-Petition at 3:4-5; 5:24-6:10.)
Obtaining such information through this improper channel is critical for Jeff—
although entirely unpermitted—because the Exempt Marital Trust and other documents included
in the Qvale Estate Plan contain an applicable no-contest clause, (See Exercise of Power of
Appointment, § 10 [on file under seal pursuant to December 27, 2013 Court Order].)° Because
Jeff does not have any probable cause to challenge his parents’ estate plan, in general, and the
Exempt Marital Trust, specifically, and because he risks forfeiting all of his interest under the
Qvale Estate Plan ifhe files a pleading challenging various constituent parts of the Qvale Estate
Plan without such probable cause, by the Cross-Petition he is now attempting to use his trustee
role improperly to devise what he believes to be a risk-free method to conduct a fishing
expedition to search for probable cause to enable his contest. (See Prob. Code § 21310.)
Aside from the fact that nothing supports Jeff's anticipated trust contest, when
viewed in this light, Jeffs decision to ignore his father’s express, written wishes regarding the
appointment of the third trustee (the person who now holds a similar position at QAG that the
‘previous trustee, Don Endo, held when he was designated by Kjell and Kathryn as Independent
Trustee of the Exempt Marital Trust) becomes transparent, (See Report of Guardian Ad Litem §
9.) Indeed, Jeff sets forth in Paragraph 7 of the Cross-Petition the information he seeks to attempt
? Indeed, consistent with his true purpose, Jeff’s counsel requested a vast array of documents, purportedly for the
purposes of the hearing on the Cross-Petition, but quite clearly designed to search for information that could support
Jeffs contest of the Trusts. (See Request for Judicial Notice, Ex. 1.)
> The Cross-Petition refers to and implicitly incorporates the Trust and the currently-effective Trust documents, of
which the Exercise of Power of Appointment is indisputably one.
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to contest the Qvale Estate Plan, and some of the grounds upon which he intends to make such
challenge. (See, e.g., Cross-Petition { 7 (“Jeff has repeatedly asked Jordan Rose .. . to provide
copies of communications with Kjell regarding . . . documents explaining the various plans which
were provided to the psychologist evaluating Kjeil for capacity and ability to resist undue
influence ....”].) Jeff's intention to contest his parents’ estate plan could not be more clear, and
indeed, he is entitled to make such contest in his role as a beneficiary-—but he is not entitled to
seek documents for his contest while hiding behind his role as a trustee in this sham Cross-
Petition pretending to concern itself with the appointment of the Independent Trustee.
Jeff's challenge to Laura Hiura is disingenuous. Despite the fact that Jeff has
trumped up numerous complaints about Ms. Hiura’s conflicts of interest as a co-trustee in other
trusts in which Jeff is also a co-trustee—for which the underlying facts have existed for more than
18 months—auntil recently (in his December 23, 2013 Preliminary Response) and now (in his
Cross-Petition) he has never taken any action based on those “complaints” despite the serious-
sounding nature of his fabricated issues. Again, when viewed through the prism of Jeff's actual
intent, the seemingly irrational behavior makes sense: he is not interested in Ms. Hiura’s
“conflicts of interest” but, rather, merely needed to engineer a vehicle through which he could
conduct his fishing expedition prior to directly contesting the ‘Trust.
3. The Cross-Petition is an Improper Challenge by Jeff as Trustee
A trustee has a general duty to defend the trust against challenges to its validity.
(See Estate of Duffill (1922) 188 Cal. 536, 555.) Thus, “{g]enerally, [a] court will not permit the
trustee to attack the trust.” (Bogert, Trusts § 98 (6th Ed. 1987).) In other words, a trustee cannot
contest a trust for self-interested grounds—as Jeff’s sham Cross-Petition does here. (See, ¢.g.,
Estate of Guzzetta (1950) 97 Cal.App.2d 169, 172 [trustee breached fiduciary duty by contesting
will for self-interested purposes].) Jeff, Trustee, is seeking to take advantage of this proceeding
to assist and benefit Jeff, Beneficiary, while attacking the terms of the Trust and Kjell’s express
“itis highly likely that Jeff will demand an accelerated discovery schedule in order to accommodate a soon-to-be-
invented, phantom necessity that happens to precede April $, 2014. For the Court’s edification, that is the deadline
for Jeff to contest the Exempt Marital Trust (among other things), explaining the true nature of his forthcoming
requests regarding the timing of discovery and acting as an admission that the Cross-Petition is a sham. (See Ricard,
6 Cal. App. 4th at 162.)
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intentions. By doing so, Jeff is breaching his duties as trustee. His actions cannot be condoned.
Cc. Despite Jeff's Attempt at Obfuscation, the Cross-Petition Actually Is a
Contest In Violation of the Applicable No Contest Clause
Despite Jeff's attempt to seek risk-free discovery by the sham Cross-Petition, the
Cross-Petition meets the elements of a contest as provided in the no-contest provision applicable
to the Exempt Marital Trust. Because this contest lacks probable cause, Jeff must, therefore,
forfeit all of his interests in the Exempt Marital Trust. Jeff similarly has contested the Nonexempt
Marital Trust and the Survivor's Trust in violation of the no-contest clauses applicable to those
trusts.
On January 30, 2013, Kjell Qvale signed the Exercise of Power of Appointment
for the Exempt Marital Trust, which contains the following no contest clause:*
(10) “If any beneficiary under this instrument contests the
validity of this instrument, any other protected instrument, or any of
the provisions of this instrument or of any other protected
instrument, then the right of that person to take any interest given to
him or her by this instrument or any other protected instrument
shall be void, and any gift or other interest in the trust property to
which the beneficiary would otherwise have been entitled shall pass
as if he or she had predeceased the Surviving Spouse without issue.
(a) For purposes of this Paragraph (10), a contest means
any of the following:
@) A pleading filed with a court by a
beneficiary, without probable cause, that alleges the invalidity ofa
protected instrument or one or more of its terms, on one or more of
the grounds contained in California Probate Code Section 21310(b).
(ii) A pleading filed with a court by a
beneficiary, without probable cause, that challenges a transfer of
property under this instrument or any other protected instrument on
the grounds that it was not the property of the Surviving Spouse.
Gii) . The filing of a creditor’s claim by a
beneficiary, without probable cause, or prosecution of an action by
the beneficiary, without probable cause, based on a creditor’s claim.
(b) For purposes of this Paragraph (10), probable cause
exists if, at the time that the beneficiary files a pleading, creditors
claim or action based on a creditor’s claim described in Paragraph
* The Exercise of Power of Appointment for the Nonexempt Marital Trust and the Restatement of the Survivor's
Trust each contain a no-contest provision substantially identical to the no-contest provision applicable to the Exempt
Marital Trust.
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(10){a), the facts known to the beneficiary would cause a reasonable
person to believe that there is a reasonable likelihood that the
requested relief will be granted after an opportunity for further
investigation or discovery.
(c) For purposes of this Paragraph (10), protected
instruments include any of the following instruments that are in
existence on the date that this instrument is executed: the will of
the Surviving Spouse and any codicil thereto, any contract,
agreement (including trust agreement), declaration of trust and
amendments thereto, beneficiary designation, exercise of a power
of appointment, or other document executed by the Surviving
Spouse or executed by another for the benefit of the Surviving
Spouse that is part of the Surviving Spouse’s integrated estate
plan.”
(See Exercise of Power of Appointment, { 10 [on file under seal pursuant to December 27, 2013
Court Order].)
The foregoing no contest clause is consistent with the provisions of Probate Code
sections 21310, ef. seg., which prescribes the enforceable elements of a no-contest clause, All of
the elements of a direct contest under the applicable no-contest provision are met.
First, the Cross-Petition is a pleading filed with the Court. (See Prob. Code
§ 21310(d) [defining pleading to mean “a petition, complaint, cross-complaint, objection, answer,
response, or claim” ].)
Second, although Jeff claims to bring the Cross-Petition solely in his capacity as a
trustee, he “cannot take off the beneficiary hat and put on the personal representative hat” as a
means of escaping the no contest provision. (See Genger v. Delsol (1997) 56 Cal.App.4th 1410,
1424.) A successful contest by the Cross-Petition would render the Statement of Intention
invalid, drastically alter the meaning Kjell and Kathryn assigned to “Independent Trustee” and (at
least insofar as Jeff now claims) render a benefit to Jeff as beneficiary. (See /bid.)
Third, the Cross-Petition expressly alleges that the Statement of Intention is
invalid. (Cross-Petition {ff 6-8.)
Fourth, the Statement of Intention is a protected instrument. The Statement of
Intention was executed on June 20, 2012, well before the January 30, 2013 Exercise of Power of
Appointment containing the no-contest clause.® The no-contest clause also expressly identifies
* The Cross-Petition erroneously refers to the date of the Statement of Intention as January 30, 2013 but does not
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any “other document executed by the Surviving Spouse .. . that is part of the Surviving Spouse’s
integrated estate plan.” The Statement of Intention was executed with the express purpose “to
promote efficient administration of the Exempt Marital Trust, the Nonexempt Marital Trust, and
the Survivor’s Trust... ..” (See Cross-Petition § 6 [referring to Statement of Intention, attached
to Petition as Exhibit 2].) Because the Statement of Intention is expressly related to the
administration of a trust, it is mandatorily integrated into the estate plan and within the scope of
the no-contest clause. (See Estate of Collias (1951) 37 Cal.2d 587, 589-590 [“Words of request,
recommendation, and the like will be interpreted as mandatory when they are addressed to an
executor, but only as a request—i.e., in their actual precatory sense—if addressed to a devisee.”].)
Fifth, the Cross-Petition alleges invalidity of the protected instrument based on
grounds set forth in section 21310(b): lack of capacity and undue influence. (Cross-Petition 7.)
Based on the foregoing, the Cross-Petition itself qualifies as a direct contest of the
Exempt Marital Trust, in particular, and of the Qvale Estate Plan, in general—despite the obvious
procedural maneuvers to protect Jeff from risking his assets as beneficiary by secking discovery
under the guise of the Cross-Petition brought in his role as Trustee.
Ii. CONCLUSION
Therefore, for the foregoing reasons Bruce respectfully requests that the Court
strike Jeff’s Cross-Petition in its entirety.
Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP
By: Zig: MM. ole: AK,
‘Barry W, Lee
Attorneys for Petitioner
Bruce H. Qvale, Family Trustee
attach the document. The Statement of Intention is attached to the Petition and is clearly dated June 20, 2012.
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PROOF OF SERVICE
L Michelle A. Chavez, declare as follows:
J am employed in San Francisco County, San Francisco, California. 1 am over the
age of cighteen 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
January 30, 2014, 1 served the within:
PETITIONER BRUCE H. QVALE, FAMILY TRUSTEE’S NOTICE OF MOTION
AND 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, jmcguire@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 Manait, Phelps & Phillips, LLP,
San Francisco, California following ordinary business practice. I 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 January 30, 2014, at
San Francisco, California.
Md th Us favs asies
Michelle A, Chavez
311389485.1 9
BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONVIA U.S, MAIL:
Norma Hepworth
P.O. Box 871
Hailey, ID 83333
Nancy Bong
23 Kingston Place
Walnut Creek, CA 94596
Roger Hansen
868 East 2830 South
Hagerman, ID 83332
Don Endo
21000 Glenwood Drive
Castro Valley, CA 94552
Raymonde Gely
3532 Sacramento St., #2
San Francisco, CA 94118
Kendel Hailey Qvale
3500 Scott St.
San Francisco, CA 94123
Connor Hammond Qvale
98 Via Poinciana Lane
Boca Raton, FL 33487
Caroline Paige Qvale
461 ~ 2" Street, C227
San Francisco, CA 94107
Max Keaton Qvale
147 Lagunitas Road
Ross, CA 94957
VIA U.S, MAIL & E-MAIL:
Peter L. Muhs
(Counsel for Miles Jeffrey Qvale)
Cooper, White & Cooper, LLP
201 California Street, 17th Floor
San Francisco, CA 94111-5002
- email: pmuhs@cwclaw.com
311392460.1
Service List
PTR-13-297016
Lillian Fredriksson
1318 Hale Drive
Concord, CA 94518
Laura Hiura
901 Van Ness Ave.
San Francisco, CA 94109
Karen Duarteau
2600 Nicasio Valley Road
Nicasio, CA 94946
Rita Jelincic
3636 Jackson St.
San Francisco, CA 94118
Hubert Gely
3532 Sacramento St., #2
San Francisco, CA 94118
Blake Henry Qvale
336 E. 18th St., Apt. E-2
New York, NY 10003
Christopher Kjell Qvale
2945 Pacific Ave., Unit 6
San Francisco, CA 94115
Miles Colin Qvale
147 Lagunitas Road
Ross, CA 94957
Miles Jeffrey Qvale
P.O. Box 667
Ross, CA 94957
VIA U.S. MAIL & E-MAIL:
Richard J. Collier
(Counsel for Miles Jeffrey Qvale}
Cooper, White & Cooper, LLP
201 California Street, 17th Floor
San Francisco, CA 94111-5002
email: rcollier@ewclaw.com.Service List
PTR-13-297016
VIA U.S, MAIL & E-MAIL:
Dominic J, Campisi
(Counsel for Miles Jeffrey Qvale)
Evans, Latham & Campisi
One Post Street, Suite 600
San Francisco, CA 94104
email: dcampisi@elc-law.com
VIA U.S. MAIL & E-MAIL:
Monica Dell’Osso
(Guardian Ad Litem for Minors Miles Colin
Qvale and Max Keaton Qvale)
Burnham Brown
A Professional Corporation
P.O, Box 119
Oakland, CA 94604
email: mdell’osso@burnhambrown.com
311392460.
VIA U.S. MAIL & E-MAIL:
Andrew Zabronsky
(Counsel for Miles Jeffrey Qvale)
Evans, Latham & Campisi
One Post Street, Suite 600
San Francisco, CA 94104
email: azabronsky@ele-law.com
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28 Manart, PHELPS & Paiiiirs, LLP Artouesys AY Law Sass FRanersce 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 Superior Court of California, CHRISTOPHER A. RHEINHEIMER (Bar No. CA 253890) County of San Francisee One Embarcadero Center, 30th Floor San Francisco, CA 94111 Telephone: (415) 291-7400 Facsimile: (415) 291-7474 Attorneys for Petitioner Bruce H. Qvale, Family Trustee JAN 31 2014 Clerk of the Court BY: LESLIE GOMEZ 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 BRESB94KS.E Case No. PTR-13-297016 PETITIONER BRUCE H. QVALE, FAMILY TRUSTEE’S NOTICE OF MOTION AND MOTION TO STRIKE MILES JEFFREY QVALE, TRUSTEE’S CROSS-PETITION FOR APPOINTMENT OF SUCCESSOR INDEPENDENT TRUSTEE TO FILL VACANCY; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT Date: March 5, 2014 Date approved Time: 2:30 p.m, by Rosie Dept: 204 Judge: Andrew Cheng BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANATT, PHELPS & PHELPS, LLP ATTORNEYS AT LAW Sax Penncisear NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on March 5, 2014 at 2:30 p.m., or as soon thereafter as this matter may be heard in the Probate Department, Room 204 of the above-entitled Court located at 400 McAllister Street, San Francisco, California 94102, Petitioner Bruce H. Qvale, in his capacity as Family Trustee of the above referenced trust (“Bruce”), will and hereby does move to strike the Cross-Petition filed by Cross-Petitioner Miles Jeffrey Qvale, in his capacity as Family Trustee of the above referenced trust (“Jeff”). This Motion is based on the grounds that Jeff, as Trustee, filed the Cross-Petition for an improper purpose and that the Cross-Petition is a sham pleading designed to permit Jeff to engage in a discovery fishing expedition prior to his filing of a contest to the Trust. This Motion is based upon this Notice of Motion and Motion; the Memorandum of Points and Authorities in support thereof; the Request for Judicial Notice; the pleadings on file, and upon such argument and further documents or materials as may be presented at or prior to the hearing on this Motion. Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP Ligh & By: gp RA fee Barfy W. Lee Attorneys for Petitioner Bruce H. Qvale, Family Trustee 311389485,1 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANATT, PHELPS & PHILLIPS, LLP ATTORNEYS 47 Law San Feawrasce MEMORANDUM OF POINTS AND AUTHORITIES 1 INTRODUCTION AND FACTUAL BACKGROUND Miles Jeff Qvale, Trustee (“Jeff”) filed a Cross-Petition for Appointment of Successor Independent Trustee to Fill Vacancy (“Cross-Petition”) on January 3, 2014, both to challenge the Kathryn C. Qvale Exempt Marital Trust, dated January 31, 2006 (the “Exempt Marital Trust”), and to justify seeking discovery to support his broader challenge to Kjell and Kathryn Qvale’s entire estate plan (the “Qvale Estate Plan”)'. The Cross-Petition contests the Exempt Marital Trust and the Qvale Estate Plan by improperly expanding its defined term “Independent Trustee” beyond the settlors’ intent such that, according to Jeff, the Independent Trustee must have no connections to either Jeff or Bruce Qvale or the business dealings of either sibling, and alleging that settlor Kjell Qvale’s (“Kjell”) intended and preferred Independent Trustee, Laura Hiura, is not independent and has purported conflicts of interest due to her employment at QAG. Jeffs challenge to Ms. Hiura is disingenuous. First, Ms. Hiura is Kjell’s hand- selected Independent Trustee as set forth in the Statement of Intention, a document that Jeff chooses to ignore against Kjell’s express wishes. Second, and equally important, Ms. Hiura has been a trustee of other related trusts for 18 months, and indeed, has assisted in the administration of the Exempt Marital Trust for many months, without a single objection from Jeff. In every material respect, until submitting his sham Cross-Petition (and recently by filing of his Preliminary Response to Petition for Appointment of Successor Independent Trustee to Fill Vacancy in this matter on December 23, 2013), Jeff has never once challenged Ms. Hiura or any of her decisions or proposals. ' The Qvale Estate Plan includes the following documents: (i) 2002 Restatement of the Trust Agreement for the Kjell and Kathryn Qvale Family Trust Dated June 2, 1983, dated December 5, 2002; (ii) First Amendment to the 2002 Restatement of the Trust Agreement for the Kjell and Kathryn Qvale Family Trust Dated June 2, 1983, dated February 11, 2004; (iii) Second Amendment to the 2002 Restatement of the Trust Agreement for the Kjell and Kathryn Qvale Family Trust Dated June 2, 1983, dated July 2, 2004; (iv) Statement of Intention with Respect to Successor Independent Trustee for The Kathryn C. Qvale Exempt Marital Trust dated January 31, 2006 and the Kathryn C. Qvale Nonexempt Marital Trust Dated January 31, 2006, executed June 20, 2012; (v) Exercise of Power of Appointment by Kjell H. Qvale for The Kathryn C. Qvale Exempt Marital Trust, dated January 30, 2013; (vi) Exercise of Power of Appointment by Kjell H. Qvale for The Kathryn C. Qvale Nonexempt Marital Trust, dated January 30, 2013; and (vii) Amended and Restated Declaration of Trust for the Kjell H. Qvale Survivor's Trust Dated January 30, 2013. 311389485.1 1 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANAT?, Petes & PHILLIPS, LLP ATrogney Ar Law BAW FRANCISCO Jeff purportedly seeks the appointment of Mr. Malone as “Independent Trustee” instead of Ms. Hiura. But the Cross-Petition makes clear that is not really Jeff"s primary goal. Indeed, Ms. Hiura is admittedly a co-trustee for numerous other trusts as to which Bruce and Jeff are also co-trustees, and Jeff has never challenged her qualifications or abilities. Only now, as the deadline for Jeffs ability to contest the terms and distributions of his parents’ various Trusts is nearing expiration, has he decided to take action against Ms, Hiura. And, tellingly, the Cross- Petition focuses largely on discovery and allegations irrelevant to the terms of the Exempt Marital Trust and, instead, focuses on discovery and allegations that Jeff hopes will support his planned contest of the Qvale Estate Plan. Simply put, Jeff in his capacity as Trustee is not permitted to use these proceedings ag an attempt to launch a risk-free fishing expedition to attempt to bolster a potential contest for Jeff as beneficiary. The Cross-Petition is improper and a sham and should be stricken in its entirety. H. ARGUMENT A. Legal Standard “The court may, upon a motion . . . and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc. § 436.) Thus, “{a] trial court has authority to strike sham pleadings ....” (Ricard v. Grobstein, Goldman, Sievenson, Siegel, LeVine & Mangei (1992) 6 Cal.App.4th 157, 162; see also Lyons v. Wickhorst (1986) 42 Cal.3d 911, 915 [dismissal with prejudice permitted where “complaint has been shown to be ‘fictitious or sham’”].) The grounds establishing the sham nature of the pleadings must either appear on the face of the challenged pleading or be subject to judicial notice. (Code Civ. Proc. § 437.) Here, the Cross-Petition was brought as an improper attempt to justify discovery to assist Jeff as a beneficiary in his potential contest of the Qvale Estate Plan in his misguided belief that the Cross-Petition was not itself a contest. Therefore, as set forth more fully below, the Court should strike the Cross-Petition in its entirety as a sham pleading. 311380485.1 2 BRUCE H, QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONoO 2S em RDN wD 28 MANATT, PHELPS & PRILLIES, LLP Avronseys At Lay GaN FRANCISCO, B. The Cross-Petition is an Improper Sham Pleading and Should By Stricken in its Entirety 1. The Cross-Petition is Contrary to the Settlor’s Express Intent and Misconstrues “Independent Trustee” Kjell, as a settlor of the Trusts, expressly stated his intention for the Independent Trustee after the prior Independent Trustee declined to continue serving: Laura Hiura. (See Cross-Petition { 6 [referring to Statement of Intention, attached to Petition as Exhibit 2],) Kjell explained that her appointment was preferred because she already was designated by Kjell to serve as the Independent Trustee of the Survivor’s Trust, and “[t]o promote efficient administration of the Exempt Marital Trust, the Nonexempt Marital Trust, and the Survivor's Trust, it is important for the same individuals to serve as Trustees of the Exempt Marital Trust, the Nonexempt Marital Trust, and the Survivor's Trust.” (/bid.) Indeed, this expression of intent was consistent with Kjel!’s and Kathryn’s initial selection of an “Independent Trustee”--Don Endo—whose declination to serve as the trustee resulted in the vacancy that Ms. Hiura is being appointed to fill. Wid.) Don Endo was an employee of QAG when Kjell and Kathryn designated him to be the Independent Trustee—the very same “conflict” that supposedly renders Ms. Hiura unfit to serve in such role. (See Report of Guardian Ad Litem 49.) Jeffs Cross-Petition asserts a definition of Independent Trustee that subverts Kjell’s and Kathryn’s original intent, as evidenced by their selection of Don Endo as the initial Independent Trustee, and Kjell’s restated intent as expressed in the Statement of Intention. Kjell and Don Endo took all steps that were available to them to cause Ms. Hiura to be the successor Independent Trustee. Mr. Endo was serving as the Independent Trustee of numerous related trusts for the benefit of Kjell and Kathryn Qvale’s grandchildren. When he resigned as the Independent Trustee of those trusts, he affirmatively designated Ms, Hiura as his successor, and she has been serving as the Independent Trustee of each of those trusts for more than 18 months. Kjell, at a time when he knew that Ms. Hiura was an employee of Bruce’s at QAG, intentionally designated Ms. Hiura as the Independent Trustee of his Survivor’s Trust. The only trusts with respect to which Mr. Endo could not designate his successor and Kjell could not designate the Independent Trustee were the Exempt Marital Trust and the Nonexempt Marital 311389485.1 3 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONa ww Ww 28 MANATT, PHELPS & PHILLIPS, LEP. ATTORNEYS AT LAW SAN FRanensea Trust. With respect to those trusts, Kjell made his intention clear that he wished Ms. Hiura to serve as successor Independent Trustee. 2. The Cross-Petition is an Unpermitted Attempt to Seek Discovery By Jeff as Trustee in Order to Enable Jeff as Beneficiary to Contest the Qvale Estate Plan The Cross-Petition is a blatant attempt by Jeff, Trustee, to seek discovery to support a contest of the Qvale Estate Plan by Jeff, Beneficiary. Indeed, the Cross-Petition shows its true colors by identifying a broad scope of discovery supposedly necessary for the Cross- Petition—but actually necessary only for Jeff to bolster his misguided and meritless contest as beneficiary. (See, e.g., Cross-Petition at 3:4-5; 5:24-6:10.) Obtaining such information through this improper channel is critical for Jeff— although entirely unpermitted—because the Exempt Marital Trust and other documents included in the Qvale Estate Plan contain an applicable no-contest clause, (See Exercise of Power of Appointment, § 10 [on file under seal pursuant to December 27, 2013 Court Order].)° Because Jeff does not have any probable cause to challenge his parents’ estate plan, in general, and the Exempt Marital Trust, specifically, and because he risks forfeiting all of his interest under the Qvale Estate Plan ifhe files a pleading challenging various constituent parts of the Qvale Estate Plan without such probable cause, by the Cross-Petition he is now attempting to use his trustee role improperly to devise what he believes to be a risk-free method to conduct a fishing expedition to search for probable cause to enable his contest. (See Prob. Code § 21310.) Aside from the fact that nothing supports Jeff's anticipated trust contest, when viewed in this light, Jeffs decision to ignore his father’s express, written wishes regarding the appointment of the third trustee (the person who now holds a similar position at QAG that the ‘previous trustee, Don Endo, held when he was designated by Kjell and Kathryn as Independent Trustee of the Exempt Marital Trust) becomes transparent, (See Report of Guardian Ad Litem § 9.) Indeed, Jeff sets forth in Paragraph 7 of the Cross-Petition the information he seeks to attempt ? Indeed, consistent with his true purpose, Jeff’s counsel requested a vast array of documents, purportedly for the purposes of the hearing on the Cross-Petition, but quite clearly designed to search for information that could support Jeffs contest of the Trusts. (See Request for Judicial Notice, Ex. 1.) > The Cross-Petition refers to and implicitly incorporates the Trust and the currently-effective Trust documents, of which the Exercise of Power of Appointment is indisputably one. 311389485. 4 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANATT, PHELPS & PHILLIPS, LLP ATIORNEYS AY Law SAN FRaNciseo to contest the Qvale Estate Plan, and some of the grounds upon which he intends to make such challenge. (See, e.g., Cross-Petition { 7 (“Jeff has repeatedly asked Jordan Rose .. . to provide copies of communications with Kjell regarding . . . documents explaining the various plans which were provided to the psychologist evaluating Kjeil for capacity and ability to resist undue influence ....”].) Jeff's intention to contest his parents’ estate plan could not be more clear, and indeed, he is entitled to make such contest in his role as a beneficiary-—but he is not entitled to seek documents for his contest while hiding behind his role as a trustee in this sham Cross- Petition pretending to concern itself with the appointment of the Independent Trustee. Jeff's challenge to Laura Hiura is disingenuous. Despite the fact that Jeff has trumped up numerous complaints about Ms. Hiura’s conflicts of interest as a co-trustee in other trusts in which Jeff is also a co-trustee—for which the underlying facts have existed for more than 18 months—auntil recently (in his December 23, 2013 Preliminary Response) and now (in his Cross-Petition) he has never taken any action based on those “complaints” despite the serious- sounding nature of his fabricated issues. Again, when viewed through the prism of Jeff's actual intent, the seemingly irrational behavior makes sense: he is not interested in Ms. Hiura’s “conflicts of interest” but, rather, merely needed to engineer a vehicle through which he could conduct his fishing expedition prior to directly contesting the ‘Trust. 3. The Cross-Petition is an Improper Challenge by Jeff as Trustee A trustee has a general duty to defend the trust against challenges to its validity. (See Estate of Duffill (1922) 188 Cal. 536, 555.) Thus, “{g]enerally, [a] court will not permit the trustee to attack the trust.” (Bogert, Trusts § 98 (6th Ed. 1987).) In other words, a trustee cannot contest a trust for self-interested grounds—as Jeff’s sham Cross-Petition does here. (See, ¢.g., Estate of Guzzetta (1950) 97 Cal.App.2d 169, 172 [trustee breached fiduciary duty by contesting will for self-interested purposes].) Jeff, Trustee, is seeking to take advantage of this proceeding to assist and benefit Jeff, Beneficiary, while attacking the terms of the Trust and Kjell’s express “itis highly likely that Jeff will demand an accelerated discovery schedule in order to accommodate a soon-to-be- invented, phantom necessity that happens to precede April $, 2014. For the Court’s edification, that is the deadline for Jeff to contest the Exempt Marital Trust (among other things), explaining the true nature of his forthcoming requests regarding the timing of discovery and acting as an admission that the Cross-Petition is a sham. (See Ricard, 6 Cal. App. 4th at 162.) 311389485.1 5 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANATT, Pitetes & ‘PHILLIPS, LLP Artouners At Lat Sas Fraxcssco, intentions. By doing so, Jeff is breaching his duties as trustee. His actions cannot be condoned. Cc. Despite Jeff's Attempt at Obfuscation, the Cross-Petition Actually Is a Contest In Violation of the Applicable No Contest Clause Despite Jeff's attempt to seek risk-free discovery by the sham Cross-Petition, the Cross-Petition meets the elements of a contest as provided in the no-contest provision applicable to the Exempt Marital Trust. Because this contest lacks probable cause, Jeff must, therefore, forfeit all of his interests in the Exempt Marital Trust. Jeff similarly has contested the Nonexempt Marital Trust and the Survivor's Trust in violation of the no-contest clauses applicable to those trusts. On January 30, 2013, Kjell Qvale signed the Exercise of Power of Appointment for the Exempt Marital Trust, which contains the following no contest clause:* (10) “If any beneficiary under this instrument contests the validity of this instrument, any other protected instrument, or any of the provisions of this instrument or of any other protected instrument, then the right of that person to take any interest given to him or her by this instrument or any other protected instrument shall be void, and any gift or other interest in the trust property to which the beneficiary would otherwise have been entitled shall pass as if he or she had predeceased the Surviving Spouse without issue. (a) For purposes of this Paragraph (10), a contest means any of the following: @) A pleading filed with a court by a beneficiary, without probable cause, that alleges the invalidity ofa protected instrument or one or more of its terms, on one or more of the grounds contained in California Probate Code Section 21310(b). (ii) A pleading filed with a court by a beneficiary, without probable cause, that challenges a transfer of property under this instrument or any other protected instrument on the grounds that it was not the property of the Surviving Spouse. Gii) . The filing of a creditor’s claim by a beneficiary, without probable cause, or prosecution of an action by the beneficiary, without probable cause, based on a creditor’s claim. (b) For purposes of this Paragraph (10), probable cause exists if, at the time that the beneficiary files a pleading, creditors claim or action based on a creditor’s claim described in Paragraph * The Exercise of Power of Appointment for the Nonexempt Marital Trust and the Restatement of the Survivor's Trust each contain a no-contest provision substantially identical to the no-contest provision applicable to the Exempt Marital Trust. 311389485, 6 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITION28 MANAtT, PHELPS & PHILLIPS, LLP ArroRNEYS AT LAW SAN FRANCESCO (10){a), the facts known to the beneficiary would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery. (c) For purposes of this Paragraph (10), protected instruments include any of the following instruments that are in existence on the date that this instrument is executed: the will of the Surviving Spouse and any codicil thereto, any contract, agreement (including trust agreement), declaration of trust and amendments thereto, beneficiary designation, exercise of a power of appointment, or other document executed by the Surviving Spouse or executed by another for the benefit of the Surviving Spouse that is part of the Surviving Spouse’s integrated estate plan.” (See Exercise of Power of Appointment, { 10 [on file under seal pursuant to December 27, 2013 Court Order].) The foregoing no contest clause is consistent with the provisions of Probate Code sections 21310, ef. seg., which prescribes the enforceable elements of a no-contest clause, All of the elements of a direct contest under the applicable no-contest provision are met. First, the Cross-Petition is a pleading filed with the Court. (See Prob. Code § 21310(d) [defining pleading to mean “a petition, complaint, cross-complaint, objection, answer, response, or claim” ].) Second, although Jeff claims to bring the Cross-Petition solely in his capacity as a trustee, he “cannot take off the beneficiary hat and put on the personal representative hat” as a means of escaping the no contest provision. (See Genger v. Delsol (1997) 56 Cal.App.4th 1410, 1424.) A successful contest by the Cross-Petition would render the Statement of Intention invalid, drastically alter the meaning Kjell and Kathryn assigned to “Independent Trustee” and (at least insofar as Jeff now claims) render a benefit to Jeff as beneficiary. (See /bid.) Third, the Cross-Petition expressly alleges that the Statement of Intention is invalid. (Cross-Petition {ff 6-8.) Fourth, the Statement of Intention is a protected instrument. The Statement of Intention was executed on June 20, 2012, well before the January 30, 2013 Exercise of Power of Appointment containing the no-contest clause.® The no-contest clause also expressly identifies * The Cross-Petition erroneously refers to the date of the Statement of Intention as January 30, 2013 but does not 341389485,1 q BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONoOo 6 RD A 28 MANATT, PHELPS & PHiLLies, LLP ATTORNEYS AT LAW Sats PRancisce any “other document executed by the Surviving Spouse .. . that is part of the Surviving Spouse’s integrated estate plan.” The Statement of Intention was executed with the express purpose “to promote efficient administration of the Exempt Marital Trust, the Nonexempt Marital Trust, and the Survivor’s Trust... ..” (See Cross-Petition § 6 [referring to Statement of Intention, attached to Petition as Exhibit 2].) Because the Statement of Intention is expressly related to the administration of a trust, it is mandatorily integrated into the estate plan and within the scope of the no-contest clause. (See Estate of Collias (1951) 37 Cal.2d 587, 589-590 [“Words of request, recommendation, and the like will be interpreted as mandatory when they are addressed to an executor, but only as a request—i.e., in their actual precatory sense—if addressed to a devisee.”].) Fifth, the Cross-Petition alleges invalidity of the protected instrument based on grounds set forth in section 21310(b): lack of capacity and undue influence. (Cross-Petition 7.) Based on the foregoing, the Cross-Petition itself qualifies as a direct contest of the Exempt Marital Trust, in particular, and of the Qvale Estate Plan, in general—despite the obvious procedural maneuvers to protect Jeff from risking his assets as beneficiary by secking discovery under the guise of the Cross-Petition brought in his role as Trustee. Ii. CONCLUSION Therefore, for the foregoing reasons Bruce respectfully requests that the Court strike Jeff’s Cross-Petition in its entirety. Dated: January 30, 2014 MANATT, PHELPS & PHILLIPS, LLP By: Zig: MM. ole: AK, ‘Barry W, Lee Attorneys for Petitioner Bruce H. Qvale, Family Trustee attach the document. The Statement of Intention is attached to the Petition and is clearly dated June 20, 2012. 311380485.1 8 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONID UW B WN 28 MANATT, PHELPS é& Penis, LEP AYTORNEYS AT LAW Sant Feancisee PROOF OF SERVICE L Michelle A. Chavez, declare as follows: J am employed in San Francisco County, San Francisco, California. 1 am over the age of cighteen 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 January 30, 2014, 1 served the within: PETITIONER BRUCE H. QVALE, FAMILY TRUSTEE’S NOTICE OF MOTION AND 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, jmcguire@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 Manait, Phelps & Phillips, LLP, San Francisco, California following ordinary business practice. I 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 January 30, 2014, at San Francisco, California. Md th Us favs asies Michelle A, Chavez 311389485.1 9 BRUCE H. QVALE, FAMILY TRUSTEE’S MOTION TO STRIKE CROSS-PETITIONVIA U.S, MAIL: Norma Hepworth P.O. Box 871 Hailey, ID 83333 Nancy Bong 23 Kingston Place Walnut Creek, CA 94596 Roger Hansen 868 East 2830 South Hagerman, ID 83332 Don Endo 21000 Glenwood Drive Castro Valley, CA 94552 Raymonde Gely 3532 Sacramento St., #2 San Francisco, CA 94118 Kendel Hailey Qvale 3500 Scott St. San Francisco, CA 94123 Connor Hammond Qvale 98 Via Poinciana Lane Boca Raton, FL 33487 Caroline Paige Qvale 461 ~ 2" Street, C227 San Francisco, CA 94107 Max Keaton Qvale 147 Lagunitas Road Ross, CA 94957 VIA U.S, MAIL & E-MAIL: Peter L. Muhs (Counsel for Miles Jeffrey Qvale) Cooper, White & Cooper, LLP 201 California Street, 17th Floor San Francisco, CA 94111-5002 - email: pmuhs@cwclaw.com 311392460.1 Service List PTR-13-297016 Lillian Fredriksson 1318 Hale Drive Concord, CA 94518 Laura Hiura 901 Van Ness Ave. San Francisco, CA 94109 Karen Duarteau 2600 Nicasio Valley Road Nicasio, CA 94946 Rita Jelincic 3636 Jackson St. San Francisco, CA 94118 Hubert Gely 3532 Sacramento St., #2 San Francisco, CA 94118 Blake Henry Qvale 336 E. 18th St., Apt. E-2 New York, NY 10003 Christopher Kjell Qvale 2945 Pacific Ave., Unit 6 San Francisco, CA 94115 Miles Colin Qvale 147 Lagunitas Road Ross, CA 94957 Miles Jeffrey Qvale P.O. Box 667 Ross, CA 94957 VIA U.S. MAIL & E-MAIL: Richard J. Collier (Counsel for Miles Jeffrey Qvale} Cooper, White & Cooper, LLP 201 California Street, 17th Floor San Francisco, CA 94111-5002 email: rcollier@ewclaw.com.Service List PTR-13-297016 VIA U.S, MAIL & E-MAIL: Dominic J, Campisi (Counsel for Miles Jeffrey Qvale) Evans, Latham & Campisi One Post Street, Suite 600 San Francisco, CA 94104 email: dcampisi@elc-law.com VIA U.S. MAIL & E-MAIL: Monica Dell’Osso (Guardian Ad Litem for Minors Miles Colin Qvale and Max Keaton Qvale) Burnham Brown A Professional Corporation P.O, Box 119 Oakland, CA 94604 email: mdell’osso@burnhambrown.com 311392460. VIA U.S. MAIL & E-MAIL: Andrew Zabronsky (Counsel for Miles Jeffrey Qvale) Evans, Latham & Campisi One Post Street, Suite 600 San Francisco, CA 94104 email: azabronsky@ele-law.com