Preview
845113
KEKER & VAN NEST LLP
JOHN W. KEKER - # 49092
jkeker@kvn.com
WARREN A. BRAUNIG - # 243884
whraunig@kvn.com
BENJAMIN BERKOWITZ - # 244441
bberkowitz@kvn.com
ABHISHEK BAJORIA - #255294
abajoria@kyn.com
633 Battery Street
San Francisco, CA 94111-1809
Telephone: 415 391 5400
Facsimile: 415 397 7188
MYERS URBATSCH P.C.
PETER S. MYERS - # 115113
psmyers@myersurbatsch.com
MATTHEW R. MRAULE - # 263433
mmraule@myersurbatsch.com
625 Market Street, 4th Floor
San Francisco, California 94105
Phone: (415) 896-1500
Fax: (415) 979-0761
Attorneys for Petitioner and Respondent
BRUCE H. QVALE, FAMILY TRUSTEE
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
JUL 17 2014
Clerk of the Court
BY: NOELIA RIVERA
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
In the Matter of the
Kathryn C. Qvale Exempt Marital Trust,
dated January 31, 2006
Miles Jeffrey Qvale, individually and as
trustee,
VWs.
Bruce H. Qvale, Laura Hiura, and Does 1-10
Case No. PTR-13-297016
REPLY IN SUPPORT OF
RESPONDENT’S MOTION TO STRIKE
PETITION TO REMOVE, SUSPEND, AND
INSTRUCT CO-TRUSTEE
Date: July 24, 2014
Time: 2:00 p.m.
Dept.: Probate, Room 204
Date approved by Ella
REPLY IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016845113
L INTRODUCTION
Three days after asserting his Fifth Amendment privilege against self-incrimination at his
deposition and refusing to testify regarding allegations in his petitions, Miles Jeffrey Qvale
(“Jeff”) treats the verification of his petitions to remove his co-trustees as a mere technicality by
submitting an “amended verification” for a stale pleading filed months earlier that he
unquestionably knows to contain false information and be inconsistent with his repeated
assertions of the Fifth Amendment,
The requirement to verify a probate petition accusing his co-trustees of bad faith and
misconduct is not a mere technicality. A “‘verification’ is an affidavit verifying the truth of the
matters covered by it.” Star Metor Imports, Inc. v. Superior Court, 88 Cal. App. 3d 201, 204
(1979) (citations omitted and emphasis added). Rather than withdraw or amend his petitions in
good faith, Jeff in opposition submits an “amended verification” regarding (1) facts he knows to
be false, and that he pleaded incensistently in this very action only eight days prior to submitting
his “amended verification,” and (2) facts regarding which he has asserted his Fifth Amendment
privilege against self-incrimination. Because Jeff's verification renders his factual averments
inconsistent with the verified allegations made in his other petitions, Bruce Qvale is left to guess
as to the content of the “true” allegations against him. Nor can Jeff be permitted to have it both
ways by refusing to testify about his own criminal conduct while simultaneously verifying under
oath allegations gleaned from that conduct.
California law and basic due process require that Jeff's improperly verified petition be
struck, and that he re-plead his petition (if he can) consistent with the requirements of a pleading
under oath and penalty of perjury, as required by the Probate Code and California Rules of Court.
Ik ARGUMENT
A. Jeff’s purported verification of inconsistent petitions is perjurious on its face
and should be stricken.
A “plaintiff may not plead facts that contradict the facts or positions that the plaintiff
pleaded in earlier actions or suppress facts that prove the pleaded facts false.” Cantu v.
Resolution Trust Corp., 4 Cal. App. 4th 857, 877~78 (1992). Jeff's “amended verification,”
1
REPLY IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016845113
submitted on July 11, 2014 with his Opposition to this Motion to Strike, purports to “verify”
under penalty of perjury the allegations in his May 2, 2014 petition to remove his co-trustee.
However, Jeff’s “amended verification” directly contradicts the verified amended petitions he
filed only eight days earlier, on July 3, 2014, in this very action. Jeffs verification is thus a sham
and his petitions should be struck because they are both perjurious on their face and serve to
prevent respondent from knowing the true content of the allegations against him. Janis v.
California State Lottery Comm., 68 Cal. App. 4th 824, 829 (1998) (trial court has authority to
strike “sham” pleadings); Code Civ. Proc. § 436(b) (the Court may “[s}trike out all or any part of
any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order
of the court.”).
A striking example of Jeffs inconsistently verified allegations is that his July 11, 2014
“amended verification” purports to verify allegations that in the “first quarter of 2013” his father
Kjell told him that Kjell had made a “mistake” with respect to his estate planning. See May 2,
2014 Removal Petition, { 26 (emphasis added). Yet in three other verified petitions that Jeff filed
only eight days before this “amended verification,” Jeff alleged (and verified) a different
chronology, claiming that this conversation with his father took place in May 2013, not during
“the first quarter of 2013.” See First Amended Validity Petition, § 52; see also PTR-13-297017,
First Amended Validity Petition, { 52; PTR-13-297143, First Amended Validity Petition, § 52.
This is not a mere minor difference in timing, but casts significant doubt on at least one of Jeff's
causes of action, because, as Jeff has pleaded, Kjell was evaluated and determined to be suffering
from cognitive difficulties as of April 30, 2013 and was unable by May 2013 to manage his daily
financial affairs. See May 2, 2014 Removal Petition, § 27.
While the timing of the allegations regarding the conversation between Kjell and Jeff may
be the most prejudicial of the inconsistencies between Jeff’s various verified petitions, other
inconsistencies are similarly troubling. For example, Jeff's verified petitions contradict each
other with respect to the date and content of Jeff's dealings with Jordan Rose, an allegation upon
which Jeff's removal petition seeks to justify its requested relief. Compare May 2, 2014 Removal
Petition, {38 with First Amended Validity Petition, 4 55 (inconsistently alleging dates of meeting
2
REPLY IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016845113
and documents provided). |
As a matter of basic due process, and under the California Court of Appeal’s decision in
Cantu, 4 Cal. App. 4th at 877-88, Bruce is entitled to know which of the contradictory sets of
“verified” allegations Jeff intends to pursue; consequently, Jeffs sham verification of inconsistent
pleadings must be stricken, and he must be required to re-plead based upon the true facts known
to him, if he can.
B. Jeff cannot verify allegations regarding which he previously refused to testify
based on his Fifth Amendment privilege against self-incrimination.
The evidence in this case will show that, during a time when he alleges that his father
Kjell was suffering from cognitive difficulties and incapable of managing his financial affairs and
resisting fraud and undue influence, Jeff repeatedly attempted to browbeat Kjell into changing his
estate plan. Jeff also made secret recordings of those conversations, without Kjell’s consent, in
violation of California Penal Code § 632. As a result, during his deposition, Jeff asserted his
Fifth Amendment privilege against self-incrimination fourteen times, and refused to testify about
certain alleged meetings with his father. Notwithstanding his refusal to testify based upon his
assertion of the Fifth Amendment, three days later, Jeff submitted his “amended verification,”
which purported to verify allegations regarding those same meetings. See May 2, 2014 Removal
Petition, § 26.
The California Court of Appeal held long ago that litigants cannot “initiate a lawsuit and
then by reliance upon the privilege against self-incrimination effectively prevent the party sued
from getting at the facts by way of discovery, and thus prejudice preparation of his defense.”
Fremont Indemnity Co. v. Superior Court, 137 Cal, App. 3d 554, 557 (1982), In other words,
where a plaintiff asserts his Fifth Amendment privilege against self-incrimination, “he cannot
have his cake and eat it too.” /d. at 560 (citations omitted).
' Similarly, Jeff's “amended verification” also purports to verify other stale allegations, including
the allegation that the Manatt firm continues to represent Bruce and Laura in this proceeding
(which Jeff alleges is a conflict of interest), even though Jeff is well aware that Bruce and Laura
obtained separate litigation counsel shortly after Jeff originally made this allegation in his May 2,
2014 petition. See May 2, 2014 Removal Petition, | 42. As Jeff knows, and contrary to the
“amended verification,” Bruce and Laura filed substitutions of counsel on May 27, 2014.
3
REPLY IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016845113
On July 8, 2014, Jeff asserted his Fifth Amendment privilege against self-incrimination
regarding numerous questions directed at meetings between Jeff and his father. See Respondent’s
Request for Judicial Notice, Ex. A (Deposition of Miles Jeffrey Qvale) at 12:24-13:7; 13:9-14;
13:16-14:2; 14:6-10; 15:15-21; 17:4-11; 17:25-18:13; 109:2-11; 109:13-25; 124:11-17; 189:8-14;
190:21-191:6; 216:25-217:5; and 221:21-222:2. In total, Jeff refused to answer fourteen
questions based on his Fifth Amendment privilege, effectively precluding Bruce from discovering
information regarding Jeff's allegations related to Kjell’s statements. Yet, despite his assertion of
the Fifth Amendment, Jeff purported to “verify” those very statements—Kjell’s alleged
admission of a mistake in his planning-—-under oath three days later. Such tactics have explicitly
been rejected, and “courts have prevented the plaintiff in such a situation from blowing hot and
cold.” Dwyer v. Crocker Nat. Bank, 194 Cal. App. 3d 1418, 1432 (1987) (refusing to permit
plaintiff to testify regarding facts for which he previously invoked the Fifth Amendment
privilege) (internal quotation and other marks omitted). Here, Jeff must either withdraw his
petition or amend it to omit the allegations over which he asserted the Fifth Amendment privilege
and refused to testify. He cannot have his cake and eat it too.
TE, CONCLUSION
For the foregoing reasons, the Court should strike Jeffs petition to remove, suspend and
instruct his co-trustee.
Dated: July 17, 2014 KEKER & VAN NEST LLP
By: _/s/ Benjamin Berkowitz
BENJAMIN W. BERKOWITZ
Attorneys for Petitioner and Respondent
BRUCE H. QVALE, FAMILY TRUSTEE
4
REPLY IN SUPPORT OF RESPONDENT'S
MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
Case No. PTR-13-297016827733.01
PROOF OF SERVICE BY ELECTRONIC TRANSMISSION,
EMAIL VIA PDF FILE AND UNITED STATES MAIL
1am employed in the City and County of San Francisco, State of California in the office ofa
member of the bar of this court at whose direction the following service was made. I am over the
age of eighteen years and not a party to the within action. My business address is Keker & Van
Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809.
On July 17, 2014, I served the following documents described as:
REPLY IN SUPPORT OF RESPONDENT’S MOTION TO STRIKE PETITION TO
REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT’S MOTION TO
STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT COTRUSTEE
by serving a true copy of the above-described documents in the following manner:
SION A TT LL OC LTTE,
BY LEXIS NEXIS® FILE & SERVE
| se
On the date executed below, I electronically served the documents described above via
Lexis Nexis® File & Serve on the recipients designated on the Transaction Receipt
located on the via Lexis Nexis® File & Serve website.
A A AO LTT
BY E-MAIL VIA PDF FILE
@ by E-MAIL VIA PDF FILE, by transmitting on this date via e-mail a true and correct copy
scanned into an electronic file in Adobe “pdf” format. The transmission was reported as
complete and without error.
Edward Koplowitz
MacInnis, Donner & Koplowitz
465 California Street, Suite 222
San Francisco, CA 94104
eakatt@aol.com
Ronald Hayes Malone
9098 Mustang Court
Petaluma, CA 94954
ron@circleoakequine.com
George Montgomery
Friedman, McCubbin, Spalding,
Bilter Roosevelt & Montgomery
425 California Street, 25th Floor
San Francisco, CA 94104
george@fomlaw.com
Peter L. Muhs
Richard J. Collier
Cooper, White & Cooper LLP
201 California Street, 17th Floor
San Francisco, CA 94111-5002
pmuhs@cwclaw.com
reollier@cwclaw.com.
PROOF OF SERVICE
Case No. PTR-13-2970161
Dominic J. Campisi Monica Dell’ Osso
21) Andrew Zabronsky Burnham Brown
3 Evans, Latham & Campisi A Professional Corporation
One Post Street, Suite 600 P.O. Box 119
4|| San Francisco, CA 94104 Oakland, CA 94604
deampisi@elc-law.com mdellosso@burnhambrown.com
5|| AZabronsky@elc-law.com
6
LEO TTT
7
BY UNITED STATES MAIL
8
SSAA
ow by regular UNITED STATES MAIL by placing Copy in a sealed envelope addressed as
10 shown below. I am readily familiar with the practice of Keker & Van Nest LLP for
collection and processing of correspondence for mailing. According to that practice, items
11 are deposited with the United States Postal Service at San Francisco, California on that same
day with postage thereon fully prepaid. I am aware that, on motion of the party served,
12 service is presumed invalid if the postal cancellation date or the postage meter date is more
B than one day after the date of deposit for mailing stated in this affidavit.
141) Norina Hepworth Lillian Fredriksson
15 P.O. Box 871 1318 Hale Drive
Hailey, ID 83333 Concord, CA 94518
16 Nancy Bong Roger Hansen
17|| 23 Kingston Place 868 East 2830 South
Walnut Creek, CA 94596 Hagerman, ID 83332
18
Karen Duarteau Don Endo
19|| 2600 Nicasio Valley Road 21000 Glenwood Drive
20 Nicasio, CA 94946 Castro Valley, CA 94552
21 || Rita Jelincic Raymonde Gely
25385 Palomares Road 3532 Sacramento St., #2
221) Castro Valley, CA 94552 San Francisco, CA 94118
231! Hubert Gely Kendel Hailey Qvale
24 3532 Sacramento St., #2 3500 Scott St.
San Francisco, CA 94118 San Francisco, CA 94123
25
Blake Henry Qvale Connor Hammond Qvale
26|| 336 E. 18th St, Apt. E-2 98 Via Poinciana Lane
4 New York, NY 10003 Boca Raton, FL 33487
28
PROOF OF SERVICE
Case No. PTR-13-297016
82773301827733.01
w
‘Caroline Paige Qvale.
461 ~2™ Street, C227
San Francisco, CA 94107
Executed on July 17, 2014, at San Francisco, California,
I declare under penalty of perjury under the laws of the State of California that the above is true
and correct. : Ltt
Joanne Winars
PROOF OF SERVICE,
Case No. PTR-13-297016
Preview
845113 KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com WARREN A. BRAUNIG - # 243884 whraunig@kvn.com BENJAMIN BERKOWITZ - # 244441 bberkowitz@kvn.com ABHISHEK BAJORIA - #255294 abajoria@kyn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188 MYERS URBATSCH P.C. PETER S. MYERS - # 115113 psmyers@myersurbatsch.com MATTHEW R. MRAULE - # 263433 mmraule@myersurbatsch.com 625 Market Street, 4th Floor San Francisco, California 94105 Phone: (415) 896-1500 Fax: (415) 979-0761 Attorneys for Petitioner and Respondent BRUCE H. QVALE, FAMILY TRUSTEE ELECTRONICALLY FILED Superior Court of California, County of San Francisco JUL 17 2014 Clerk of the Court BY: NOELIA RIVERA Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO In the Matter of the Kathryn C. Qvale Exempt Marital Trust, dated January 31, 2006 Miles Jeffrey Qvale, individually and as trustee, VWs. Bruce H. Qvale, Laura Hiura, and Does 1-10 Case No. PTR-13-297016 REPLY IN SUPPORT OF RESPONDENT’S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Date: July 24, 2014 Time: 2:00 p.m. Dept.: Probate, Room 204 Date approved by Ella REPLY IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016845113 L INTRODUCTION Three days after asserting his Fifth Amendment privilege against self-incrimination at his deposition and refusing to testify regarding allegations in his petitions, Miles Jeffrey Qvale (“Jeff”) treats the verification of his petitions to remove his co-trustees as a mere technicality by submitting an “amended verification” for a stale pleading filed months earlier that he unquestionably knows to contain false information and be inconsistent with his repeated assertions of the Fifth Amendment, The requirement to verify a probate petition accusing his co-trustees of bad faith and misconduct is not a mere technicality. A “‘verification’ is an affidavit verifying the truth of the matters covered by it.” Star Metor Imports, Inc. v. Superior Court, 88 Cal. App. 3d 201, 204 (1979) (citations omitted and emphasis added). Rather than withdraw or amend his petitions in good faith, Jeff in opposition submits an “amended verification” regarding (1) facts he knows to be false, and that he pleaded incensistently in this very action only eight days prior to submitting his “amended verification,” and (2) facts regarding which he has asserted his Fifth Amendment privilege against self-incrimination. Because Jeff's verification renders his factual averments inconsistent with the verified allegations made in his other petitions, Bruce Qvale is left to guess as to the content of the “true” allegations against him. Nor can Jeff be permitted to have it both ways by refusing to testify about his own criminal conduct while simultaneously verifying under oath allegations gleaned from that conduct. California law and basic due process require that Jeff's improperly verified petition be struck, and that he re-plead his petition (if he can) consistent with the requirements of a pleading under oath and penalty of perjury, as required by the Probate Code and California Rules of Court. Ik ARGUMENT A. Jeff’s purported verification of inconsistent petitions is perjurious on its face and should be stricken. A “plaintiff may not plead facts that contradict the facts or positions that the plaintiff pleaded in earlier actions or suppress facts that prove the pleaded facts false.” Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857, 877~78 (1992). Jeff's “amended verification,” 1 REPLY IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016845113 submitted on July 11, 2014 with his Opposition to this Motion to Strike, purports to “verify” under penalty of perjury the allegations in his May 2, 2014 petition to remove his co-trustee. However, Jeff’s “amended verification” directly contradicts the verified amended petitions he filed only eight days earlier, on July 3, 2014, in this very action. Jeffs verification is thus a sham and his petitions should be struck because they are both perjurious on their face and serve to prevent respondent from knowing the true content of the allegations against him. Janis v. California State Lottery Comm., 68 Cal. App. 4th 824, 829 (1998) (trial court has authority to strike “sham” pleadings); Code Civ. Proc. § 436(b) (the Court may “[s}trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”). A striking example of Jeffs inconsistently verified allegations is that his July 11, 2014 “amended verification” purports to verify allegations that in the “first quarter of 2013” his father Kjell told him that Kjell had made a “mistake” with respect to his estate planning. See May 2, 2014 Removal Petition, { 26 (emphasis added). Yet in three other verified petitions that Jeff filed only eight days before this “amended verification,” Jeff alleged (and verified) a different chronology, claiming that this conversation with his father took place in May 2013, not during “the first quarter of 2013.” See First Amended Validity Petition, § 52; see also PTR-13-297017, First Amended Validity Petition, { 52; PTR-13-297143, First Amended Validity Petition, § 52. This is not a mere minor difference in timing, but casts significant doubt on at least one of Jeff's causes of action, because, as Jeff has pleaded, Kjell was evaluated and determined to be suffering from cognitive difficulties as of April 30, 2013 and was unable by May 2013 to manage his daily financial affairs. See May 2, 2014 Removal Petition, § 27. While the timing of the allegations regarding the conversation between Kjell and Jeff may be the most prejudicial of the inconsistencies between Jeff’s various verified petitions, other inconsistencies are similarly troubling. For example, Jeff's verified petitions contradict each other with respect to the date and content of Jeff's dealings with Jordan Rose, an allegation upon which Jeff's removal petition seeks to justify its requested relief. Compare May 2, 2014 Removal Petition, {38 with First Amended Validity Petition, 4 55 (inconsistently alleging dates of meeting 2 REPLY IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016845113 and documents provided). | As a matter of basic due process, and under the California Court of Appeal’s decision in Cantu, 4 Cal. App. 4th at 877-88, Bruce is entitled to know which of the contradictory sets of “verified” allegations Jeff intends to pursue; consequently, Jeffs sham verification of inconsistent pleadings must be stricken, and he must be required to re-plead based upon the true facts known to him, if he can. B. Jeff cannot verify allegations regarding which he previously refused to testify based on his Fifth Amendment privilege against self-incrimination. The evidence in this case will show that, during a time when he alleges that his father Kjell was suffering from cognitive difficulties and incapable of managing his financial affairs and resisting fraud and undue influence, Jeff repeatedly attempted to browbeat Kjell into changing his estate plan. Jeff also made secret recordings of those conversations, without Kjell’s consent, in violation of California Penal Code § 632. As a result, during his deposition, Jeff asserted his Fifth Amendment privilege against self-incrimination fourteen times, and refused to testify about certain alleged meetings with his father. Notwithstanding his refusal to testify based upon his assertion of the Fifth Amendment, three days later, Jeff submitted his “amended verification,” which purported to verify allegations regarding those same meetings. See May 2, 2014 Removal Petition, § 26. The California Court of Appeal held long ago that litigants cannot “initiate a lawsuit and then by reliance upon the privilege against self-incrimination effectively prevent the party sued from getting at the facts by way of discovery, and thus prejudice preparation of his defense.” Fremont Indemnity Co. v. Superior Court, 137 Cal, App. 3d 554, 557 (1982), In other words, where a plaintiff asserts his Fifth Amendment privilege against self-incrimination, “he cannot have his cake and eat it too.” /d. at 560 (citations omitted). ' Similarly, Jeff's “amended verification” also purports to verify other stale allegations, including the allegation that the Manatt firm continues to represent Bruce and Laura in this proceeding (which Jeff alleges is a conflict of interest), even though Jeff is well aware that Bruce and Laura obtained separate litigation counsel shortly after Jeff originally made this allegation in his May 2, 2014 petition. See May 2, 2014 Removal Petition, | 42. As Jeff knows, and contrary to the “amended verification,” Bruce and Laura filed substitutions of counsel on May 27, 2014. 3 REPLY IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016845113 On July 8, 2014, Jeff asserted his Fifth Amendment privilege against self-incrimination regarding numerous questions directed at meetings between Jeff and his father. See Respondent’s Request for Judicial Notice, Ex. A (Deposition of Miles Jeffrey Qvale) at 12:24-13:7; 13:9-14; 13:16-14:2; 14:6-10; 15:15-21; 17:4-11; 17:25-18:13; 109:2-11; 109:13-25; 124:11-17; 189:8-14; 190:21-191:6; 216:25-217:5; and 221:21-222:2. In total, Jeff refused to answer fourteen questions based on his Fifth Amendment privilege, effectively precluding Bruce from discovering information regarding Jeff's allegations related to Kjell’s statements. Yet, despite his assertion of the Fifth Amendment, Jeff purported to “verify” those very statements—Kjell’s alleged admission of a mistake in his planning-—-under oath three days later. Such tactics have explicitly been rejected, and “courts have prevented the plaintiff in such a situation from blowing hot and cold.” Dwyer v. Crocker Nat. Bank, 194 Cal. App. 3d 1418, 1432 (1987) (refusing to permit plaintiff to testify regarding facts for which he previously invoked the Fifth Amendment privilege) (internal quotation and other marks omitted). Here, Jeff must either withdraw his petition or amend it to omit the allegations over which he asserted the Fifth Amendment privilege and refused to testify. He cannot have his cake and eat it too. TE, CONCLUSION For the foregoing reasons, the Court should strike Jeffs petition to remove, suspend and instruct his co-trustee. Dated: July 17, 2014 KEKER & VAN NEST LLP By: _/s/ Benjamin Berkowitz BENJAMIN W. BERKOWITZ Attorneys for Petitioner and Respondent BRUCE H. QVALE, FAMILY TRUSTEE 4 REPLY IN SUPPORT OF RESPONDENT'S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE Case No. PTR-13-297016827733.01 PROOF OF SERVICE BY ELECTRONIC TRANSMISSION, EMAIL VIA PDF FILE AND UNITED STATES MAIL 1am employed in the City and County of San Francisco, State of California in the office ofa member of the bar of this court at whose direction the following service was made. I am over the age of eighteen years and not a party to the within action. My business address is Keker & Van Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809. On July 17, 2014, I served the following documents described as: REPLY IN SUPPORT OF RESPONDENT’S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT CO-TRUSTEE REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF RESPONDENT’S MOTION TO STRIKE PETITION TO REMOVE, SUSPEND, AND INSTRUCT COTRUSTEE by serving a true copy of the above-described documents in the following manner: SION A TT LL OC LTTE, BY LEXIS NEXIS® FILE & SERVE | se On the date executed below, I electronically served the documents described above via Lexis Nexis® File & Serve on the recipients designated on the Transaction Receipt located on the via Lexis Nexis® File & Serve website. A A AO LTT BY E-MAIL VIA PDF FILE @ by E-MAIL VIA PDF FILE, by transmitting on this date via e-mail a true and correct copy scanned into an electronic file in Adobe “pdf” format. The transmission was reported as complete and without error. Edward Koplowitz MacInnis, Donner & Koplowitz 465 California Street, Suite 222 San Francisco, CA 94104 eakatt@aol.com Ronald Hayes Malone 9098 Mustang Court Petaluma, CA 94954 ron@circleoakequine.com George Montgomery Friedman, McCubbin, Spalding, Bilter Roosevelt & Montgomery 425 California Street, 25th Floor San Francisco, CA 94104 george@fomlaw.com Peter L. Muhs Richard J. Collier Cooper, White & Cooper LLP 201 California Street, 17th Floor San Francisco, CA 94111-5002 pmuhs@cwclaw.com reollier@cwclaw.com. PROOF OF SERVICE Case No. PTR-13-2970161 Dominic J. Campisi Monica Dell’ Osso 21) Andrew Zabronsky Burnham Brown 3 Evans, Latham & Campisi A Professional Corporation One Post Street, Suite 600 P.O. Box 119 4|| San Francisco, CA 94104 Oakland, CA 94604 deampisi@elc-law.com mdellosso@burnhambrown.com 5|| AZabronsky@elc-law.com 6 LEO TTT 7 BY UNITED STATES MAIL 8 SSAA ow by regular UNITED STATES MAIL by placing Copy in a sealed envelope addressed as 10 shown below. I am readily familiar with the practice of Keker & Van Nest LLP for collection and processing of correspondence for mailing. According to that practice, items 11 are deposited with the United States Postal Service at San Francisco, California on that same day with postage thereon fully prepaid. I am aware that, on motion of the party served, 12 service is presumed invalid if the postal cancellation date or the postage meter date is more B than one day after the date of deposit for mailing stated in this affidavit. 141) Norina Hepworth Lillian Fredriksson 15 P.O. Box 871 1318 Hale Drive Hailey, ID 83333 Concord, CA 94518 16 Nancy Bong Roger Hansen 17|| 23 Kingston Place 868 East 2830 South Walnut Creek, CA 94596 Hagerman, ID 83332 18 Karen Duarteau Don Endo 19|| 2600 Nicasio Valley Road 21000 Glenwood Drive 20 Nicasio, CA 94946 Castro Valley, CA 94552 21 || Rita Jelincic Raymonde Gely 25385 Palomares Road 3532 Sacramento St., #2 221) Castro Valley, CA 94552 San Francisco, CA 94118 231! Hubert Gely Kendel Hailey Qvale 24 3532 Sacramento St., #2 3500 Scott St. San Francisco, CA 94118 San Francisco, CA 94123 25 Blake Henry Qvale Connor Hammond Qvale 26|| 336 E. 18th St, Apt. E-2 98 Via Poinciana Lane 4 New York, NY 10003 Boca Raton, FL 33487 28 PROOF OF SERVICE Case No. PTR-13-297016 82773301827733.01 w ‘Caroline Paige Qvale. 461 ~2™ Street, C227 San Francisco, CA 94107 Executed on July 17, 2014, at San Francisco, California, I declare under penalty of perjury under the laws of the State of California that the above is true and correct. : Ltt Joanne Winars PROOF OF SERVICE, Case No. PTR-13-297016