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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
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Case Number: PTR-06-288755
Filing Date: Aug-10-2010 8:42
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SUBSEQUENT PROBATE PETITION
IN THE MATTER OF THE ROSIA L. HART REVOCABLE TRUST
001P02935052
Instructions:
Please place this sheet on top of the document to be scanned.MacINNtS, DONNER & KOPLOWITZ
ATTORNEYS AT LAW
SUITE 222
465 CALIFORNIA STREET
SAN FRANCISCO, CA 94104
TELEPHONE: (415) 434.2400
FAX: (418) 433-1917
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Andrew K. Schultz, Esq. (SBN: 215917,
Witherspoon & Siracusa L
1550 Bryant Street, Suite 875 San Francisco County Superior Cou
San Francisco, California 94103-4879 San Fra
Telephone: (415) 552-1814 AUG 1 6 2010 County Bunerior Co
Facsimile: (415) 552-2158
CLERK OF THe COURT
Edward A. Koplowitz, Esq. (SBN: itn “Sacre CLER
MacInnis, Donner & Koplowitz
465 California Street, Suite 222
San Francisco, CA 94104
Telephone: (415) 434-2400
Facsimile: (415) 433-1917
SEP 13 2010
209 A.M., RM. 204
SUPERIOR COURT OF THE STATE OF CALIFORNIA
Attorneys for Herb Thomas, conservator
of the estate and successor trustee
IN AND FOR THE COUNTY OF SAN FRANCISCO
In re the Conservatorship of the Estate of Case Nos.: PTR-06-288755 a“
ROSIA LEE HART, PCN-06-288756
Conservatee. AMENDED AND SUPPLEMENTAL
PETITION FOR RECOVERY OF TRUST
PROPERTY, FOR CANCELLATION OF
INSTRUMENTS, AND FOR DAMAGES,
INCLUDING FOR ELDER ABUSE
(Probate Code §§850, 859; Civil Code §3412;
Inst. & Wel. Code §§15610.30, 15657)
Inre
THE ROSIA L. HART
REVOCABLE TRUST DATED
MAY 19, 2004
HERB THOMAS, as conservator of the
estate of Rosia Lee Hart, conservatee, and as
successor trustee,
Petitioner,
vs.
GREGORY K. WIGGINS, individually and
as trustee of the Gregory K. Wiggins Trust;
BAY VILLAGE LLC; and DOES 1 - 10,
inclusive,
Respondents.
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.x
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Petitioner Herb Thomas, as conservator of the estate of Rosia Lee Hart, conservatee, and
as successor trustee of the Rosia L. Hart Revocable Trust dated May 19, 2004 (“the Trust”),
alleges as follows:
GENERAL ALLEGATIONS
1. Petitioner Herb Thomas is the duly appointed and acting successor trustee of the
Trust.
2. Petitioner Herb Thomas is also the duly appointed and acting conservator of the
estate of Rosia Lee Hart, conservatee.
3. Petitioner Herb Thomas petitioned for appointment as temporary conservator and
for appointment as temporary trustee because of investigations conducted and reports obtained
by a number of agencies which exist to protect the interests of susceptible senior citizens such as
conservatee, including, but not limited to, the offices of Adult Protective Services for Contra
Costa and San Francisco Counties, the Hercules Police Department, the San Francisco City
Attorney, the San Francisco Public Guardian, Contra Costa Aging and Adult Services, and the
Contra Costa District Attorney’s Office. The conclusions reached from such investigations and
reports were that conservatee was cognitively impaired, that conservatee was unaware of
respondent Gregory K. Wiggins’ (“respondent Wiggins”) machinations, that conservatee was
susceptible to fraud and to the undue influence and elder abuse practiced by respondent Wiggins,
and that conservatee was helpless to prevent the financial elder abuse inflicted by respondent
Wiggins.
4, Conservatee Rosia Lee Hart is the settlor, original trustee and life income
beneficiary of the Trust. The Trust was appropriately funded, and property of the Trust included
settlor’s fee interest in that certain improved real estate in the City and County of San Francisco
described and commonly known as 950 Newhall Street, San Francisco, California, and legally
described as follows:
Beginning at the point of intersection of the northeasterly line of Kirkwood
Avenue and the northwesterly line of Newhall Street; running thence
northwesterly along said line of Kirkwood Avenue 75 feet; thence at a right angle
northeasterly 100 feet; thence at a right angle southeasterly 75 feet to the
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS, DONNER & KOPLOWITZ
ATTORNEYS AT LAW
SUITE 222
465 CALIFORNIA STREET
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FAX: (418) 433-1917
northwesterly line of Newhall Street; thence southwesterly along said line of
Newhall Street 100 feet to the point of beginning. Being Lots 25, 26 and 27, in
Block 210, O’Neil and Haley Tract.
Block 5279, Lot 4
Commonly known as: 950 Newhall Avenue, San Francisco, California.
5. Respondent Wiggins is a stranger to conservatee. He is believed to have
befriended conservatee following the death of her husband and insinuated himself into
conservatce’s private affairs, living arrangements, finances, property interests, assets, and
administration of the Trust. Respondent Wiggins is believed to have procured one or more
powers of attorney in his favor from conservatee, and he assumed a confidential and fiduciary
relationship with conservatee.
6. Petitioner is informed and believes, and thercon alleges, that respondent Bayview
Village LLC is an entity formed, operated, and purported to be owned by respondent Wiggins as
a front, shell, and ruse; that said entity is not in good standing and is undercapitalized; that
respondent Bayview Village LLC is the alter ego of respondent Wiggins; and that its recognition
would sanction fraud and promote injustice.
7. Petitioner is ignorant of the true names and capacities of respondents sued herein
as DOES 1-10, inclusive, and therefore sues these respondents by such fictitious names.
Petitioner will further amend this petition to show their true names, capacities and involvement
when ascertained. Each of the DOE respondents is responsible in some manner for the
occurrences herein alleged, and the damages as herein alleged were proximately caused by their
conduct. At all times herein mentioned, each of the respondents sued herein as a DOE was
acting as the agent, employee, or co-conspirator of the remaining respondents and was acting at
all times within the scope of such agency, employment, and/or conspiracy.
8. Conservatee is an individual who is, and at all times herein mentioned was,
susceptible to fraud, overreaching, and the undue influence of persons in a confidential and/or
fiduciary relationship with her, including respondent Wiggins.
9. Petitioner is informed and believes, and thereon alleges, that respondent Wiggins
has followed a practice and pattern of unduly influencing and/or taking advantage of elderly
and/or infirm persons other than conservatee.
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ATTORNEYS AT LAW
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10. Petitioner is informed and believes, and thereon alleges, that after the filing and
service of the original petition herein, and in particular on or about January 17, 2007, being at a
time when Rosia L. Hart was a conservatee and lacked either the capacity or authority to transfer
any interests in property, respondent Wiggins caused Mrs. Hart to transfer her one-half
undivided joint tenancy interest in the real property at 211 Tanager Way in Hercules, California
to respondent Wiggins, an unmarried man. See Exhibit 1.
11. Onor about January 17, 2007, respondent Wiggins obtained a loan for $540,000
from World Savings, secured by his ostensible ownership interest in 211 Tanager Way.
12. Inor about November 2007, respondent Wiggins transferred title to 211 Tanager
Way to himself as trustee of the Gregory K. Wiggins Trust.
13. Respondent Wiggins has not restored the name of Mrs. Hart or that of her
conservator to the title of 211 Tanager Way, has not distributed any of the aforesaid loan
proceeds to Mrs. Hart or her conservator, and has not paid over or accounted for any profits,
fruits, or investments made with such loan proceeds.
CLAIMS
14, Respondent Wiggins has abused his confidential and fiduciary relationship with
conservatee, and unduly influenced conservatee, as follows:
a. He caused conservatee to sell her long-time residence at 706 De Haro
Street in San Francisco, California, although there was no medical, emotional or financial
reason for her to do so.
b. He unlawfully obtained or converted funds from conservatee, from the
Trust, and/or from the laundromat owned by conservatee at 950-A Newhall Street in San
Francisco, California.
e He unlawfully obtained funds from conservatee or her Trust, or used the
funds of conservatee or her Trust, to purchase interests in real estate for himself.
d. He unlawfully wrote checks on conservatee’s accounts for his personal
benefit.
Mit
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.ATTORNEYS AT LAW
SUITE 222
465 CALIFORNIA STREET
SAN FRANCISCO, CA 94104
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e. He held himself out as the owner of 950 Newhall Street in San Francisco,
California, and dealt with such property as though it were his own, while causing all bills
and expenses incurred for such property to be charged to conservatee or the Trust. In
particular, respondent Wiggins devised a plan and scheme to obtain the interest in 950
Newhall for himself, and to use conservatee’s funds and credit to undertake a
development project for his own benefit and profit, even though he had no legal interest
in said real estate nor has he contributed any funds to any development project therefor.
f. Respondent Wiggins wrongfully took over management of the laundromat
located at 950-A Newhall Street and operated it as though it were his own, including
keeping all proceeds from the operation thereof.
g. Respondent Wiggins isolated conservatee from her friends, relatives and
those who would have helped sustain her. Respondent Wiggins interfered with and
impeded the rendition of necessary social and medical services to conservatee, as well as
with the investigations of Adult Protective Services and others concerned about
conservatee’s welfare and the status of her assets and finances.
h. Respondent Wiggins purported to operate an unregistered credit repair
business from premises owned by conservatee or the Trust.
i, Respondent Wiggins undertook and is in the process of undertaking
additional acts intended to improperly and unlawfully obtain the money and assets of
conservatee and the Trust, the precise nature of which will be specified by further
amendment when ascertained.
j Respondent Wiggins has improperly made charges and/or withdrawals
against conservatee’s credit card accounts.
k, Respondent Wiggins wrongfully induced and caused conservatee to
transfer her undivided joint tenancy interest in 211 Tanager Way to him for no
consideration.
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FIRST CAUSE OF ACTION
(Conversion)
15. Petitioner realleges paragraphs | through 14 above as though the same were set
forth herein at length.
16. Respondent Wiggins intentionally, and without authorization, wrongfully took, or
obtained funds from conservatee and/or the Trust to which he was not entitled, including, but not
limited to, loan proceeds received for 211 Tanager Way.
17. Despite repeated requests therefor, respondent Wiggins has failed and refused,
and continues to fail and refuse, to restore said funds.
18. Such acts and conduct by respondent Wiggins constitute conversion, and
petitioner is entitled to recover all of such sums so converted, including interest thereon at the
legal rate from the date of conversion, as well as all sums expended in pursuing such converted
property, including, but not limited to, attorneys’ fees.
19, Respondent Wiggins’ acts of conversion were intentional and malicious, and
constituted despicable conduct in derogation of the property rights of the conservatee and the
Trust, thereby entitling petitioner to recover punitive damages.
SECOND CAUSE OF ACTION
(Breach of Confidential and Fiduciary Duty - Constructive Fraud)
20. Petitioner realleges paragraphs 1 through 19 above as though the same were set
forth herein at length.
21. By his acts as herein alleged, respondent Wiggins breached his confidential
relationship with and fiduciary duties owed to conservatee, both individually, as a trustee and as
the beneficiary of the Trust, as well as to the remaining persons interested in the eventual
devolution of the Trust. Such conduct constitutes constructive fraud under Civil Code §1573.
22. Respondent Wiggins’ acts were intentional and malicious, and constituted
despicable conduct in derogation of the property rights of the conservatee and of the Trust,
thereby entitling petitioner to recover punitive damages.
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THIRD CAUSE OF ACTION
(Financial Elder Abuse)
23. Petitioner realleges paragraphs 1 through 22 above as though the same were set
forth herein at length.
24. Conservatee was, at all times mentioned herein, an “elder” within the definition of
Welfare & Institutions Code §15610.27. The acts and conduct of respondent Wiggins as alleged
hereinabove constitute financial elder abuse under Welfare & Institutions Code §15657, as
defined by Welfare & Institutions Code §15610.30.
25. Respondent Wiggins was guilty of recklessness, oppression, fraud, and malice in
the commission of the abuse described above.
26. Under Welfare and Institutions Code §15657.5(a), respondent Wiggins is liable to
petitioner for reasonable attomey fees and costs, including reasonable fees for the services of
petitioner and petitioner’s attorneys, as required for the litigation of this claim.
27. The conduct of respondent Wiggins was willful and intended to cause injury to
conservatee. Petitioner is therefore entitled to recover punitive damages from respondent
Wiggins.
FOURTH CAUSE OF ACTION
(Damages for Undue Influence)
28. Petitioner realleges paragraphs | through 27 above as though the same were set
forth herein at length.
29, Conservatee reposed trust and confidence in respondent Wiggins, who also stood
in a fiduciary relationship to her.
30. | Respondent Wiggins used and abused such trust and relationship to gain unfair
advantage of conservatee and to induce and cause her to make, consent, or purport to “ratify”
transfers involving her property and Trust property, which transfers were undertaken for his sole
benefit. Any such actions taken or alleged to have been taken by conservatee were not of her
own free will and consistent with her own desires, rights and obligations, or with her desires,
rights and obligations as trustee of the Trust, but rather reflected the desires and importunings of
respondent Wiggins.
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.Q
| 31. Any apparent or belated alleged consents of conservatee were, therefore, not real
2 | and free, in that they were obtained through respondent Wiggins’ undue influence and abuse of
3 || his confidential and fiduciary relationship, and conservatee would not have given any of such
4 || ostensible consents, if give them she did, but for such undue influence and other misconduct by
5 || respondent Wiggins.
6 32. Respondent Wiggins actively procured the prohibited transfers and transactions,
7 || as alleged hereinabove. In so doing, respondent Wiggins unduly benefitted, and enriched
8 || himself, at the expense of conservatee and all other persons interested in the assets and
9 || devolution of the Trust.
10 33. Petitioner, as successor trustee, is therefore entitled to rescind all transfers of
11 j| money from conservatee and from or on account of Trust assets, and is entitled to recover
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. up : ; 13 || all of such monies and their fruits, interest, and investments as constructive trustee for the use
¥ Pees a 14 || and benefit of petitioner, with the obligation to forthwith restore such monies and their fruits to
6 E #15 petitioner, and to pay legal interest thereon to the date of their return.
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3 {For Recovery of Property - Probate Code §§850, 859)
= 8 34, _ Petitioner realleges paragraphs 1 through 33 above as though the same were set
" forth herein at length.
20 35. All transfers of assets and property from conservatee or the Trust, for the benefit
2 of or at the direction of respondent Wiggins, or derived from Trust property as alleged
2 hereinabove, and all sums taken by respondent Wiggins from conservatee and/or the Trust, were
3 invalid transfers, made without consideration and should be set aside. Such transfers include, but
2 are not limited to:
s a. Any purported transfer of any interest in 950 Newhall Street, San
26 Francisco, California to respondent Wiggins or any other holder at his direction;
” b. The purported transfer of the Trust’s interest in 950 Newhall Street, San
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Francisco, California to respondent Bayview Village LLC;
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.ATTORNEYS AT LAW
Sure 222
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FAX; (418) 433-1917
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GQ Any purported transfer of any interest or right to proceeds of conservatee
in 32 Argonaut Avenue in San Francisco, California to respondent Wiggins or any other
holder at his direction;
d. Any purported transfer of conservatee’s or the Trust’s interest in 1760
Dover Circle in Suisun City, California to respondent Wiggins or any other holder at his
direction; and
e Any purported transfer of conservatee’s or the Trust’s interest in 211
Tanager Way, Hercules, California to respondent Wiggins, to the Gregory K. Wiggins
Trust, or to any other holder at his direction.
36. Asa person who, in bad faith, wrongfully took, concealed, or disposed of such
property, respondent Wiggins should be assessed damages in an amount twice the value of the
property taken, pursuant to Probate Code §859,
SIXTH CAUSE OF ACTION
(Accounting)
37. Petitioner realleges paragraphs | through 36 above as though the same were set
forth herein at length.
38. Respondent Wiggins and respondent Bayview Village LLC should each be
ordered to provide a full and complete accounting of all assets and property which respondent
Wiggins and respondent Bayview Village LLC took or obtained from conservatee or from the
Trust, or on account of any assets of either of them, including for the loan secured on 211
Tanager Way. All sums found to be owed or restorable to conservatee or the Trust should be
repaid immediately to petitioner with interest thereon at the legal rate from the dates received or
taken.
SEVENTH CAUSE OF ACTION
(Unjust Enrichment)
39, Petitioner realleges paragraphs 1 through 38 above as though the same were set
forth herein at length.
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40. If respondent Wiggins or respondent Bayview Village LLC is allowed to retain
the assets, property and/or money of conservatee and/or the Trust and/or their fruits, including
the proceeds of the loan received on 211 Tanager Way, such respondent will have been unjustly
enriched at the expense of conservatee and the Trust beneficiaries entitled thereto.
41. Accordingly, respondent Wiggins and respondent Bayview Village LLC hold all
such proceeds and the fruits thereof each as a constructive trustee for the use and benefit of
petitioner, with the obligation to forthwith convey the same to petitioner, with interest thereon at
the legal rate.
EIGHTH CAUSE OF ACTION
(Actual Fraud)
42. Petitioner realleges paragraphs | through 41 above as though the same were set
forth herein at length.
43. Petitioner is informed and believes, and thereon alleges, that respondent Wiggins
made misstatements and false promises to conservatee which he knew, or in the exercise of
reasonable diligence, should have known, were not true, including, but not limited to, the
following:
a. That he would take care of conservatee for the remainder of her life.
b. That conservatee could rely on him to look out for her best interests and
preserve and maximize her financial position.
c That he would only use funds of conservatee or her Trust to advance her
interests and not his own.
d. That his name would appear on title to assets owned by conservatee or the
Trust only for convenience.
e That Bayview Village LLC was established for conservatee’s benefit.
f. That conservatee was obligated to deed her interest in 211 Tanager Way to
respondent Wiggins.
44, In fact, the aforesaid representations and promises were false:
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Amended and Supplemental Petition for Recovery of Trust Property, Etc.MaciNNIS, DONNER & KOPLOWITZ
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a. Respondent Wiggins had no intention of taking care of conservatee, but
only of obtaining access to, control over and ultimate ownership of the assets of
conservatee and of her Trust.
b. Respondent Wiggins intended to, and has sought to, advance his own
financial interests without disclosure to, and at the expense of, conservatee and the Trust.
e Respondent Wiggins has used conservatee’s assets and those of the Trust,
including bank accounts, to write checks for himself, for his own expenses, and for third
persons with whom he (but not conservatee) has been in a relationship, and he has sought
to advance his own interests at the expense of those of conservatee.
d. Respondent Wiggins intended to and has obtained ostensible legal rights
and credit by reason of improperly having placed his name on title to or claiming
interests in property which belongs to conservatee or the Trust.
e Bayview Village LLC was established by respondent Wiggins for his sole
personal benefit and to conceal his own improper activity, and for which he made himself
manager, although he contributed no capital to it and was and is unqualified for such
position,
f. Conservatee was under no legal obligation to transfer her interest in 211
Tanager Way to respondent Wiggins, particularly for no consideration.
45. Conservatee justifiably relied on the statements, blandishments, promises, and
representations of respondent Wiggins because of his confidential and fiduciary relationship with
her.
46. Had conservatee known the true facts, she would not have acted as she did, nor
sign any documents at the behest of respondent Wiggins.
47. The conduct of respondent Wiggins was despicable, oppressive, fraudulent, and
malicious, and was taken in conscious disregard of the property rights of conservatee and of the
Trust. As a consequence, petitioner is entitled to recover punitive damages from respondent
Wiggins.
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NINTH CAUSE OF ACTION
(Cancellation of Instruments - Civil Code §3412)
48. Petitioner realleges paragraphs 1 through 47 above as though the same were set
forth herein at length.
49. _ Petitioner is informed and believes, and thereon alleges, that there are in existence
one or more written instruments which purport to bind conservatee, affect the rights of
conservatee, grant power or authority to respondent Wiggins and/or Bayview Village LLC,
and/or affect the title or ownership of property, including, but not limited to, contracts, deeds,
agreements, loan obligations, powers of attorney, wills, codicils, and the like, and particularly
including (a) the purported transfer of conservatee’s interest in 211 Tanager Way, a copy of
which is attached as Exhibit 1, and (b) the purported transfer deed for 950 Newhall Street in San
Francisco, California from conservatee as trustee to Bayview Village LLC dated August 19,
2005, a copy of which is attached as Exhibit 2.
50. Each and all of such written instruments are void or voidable since having been
obtained by respondent Wiggins by means of actual fraud, constructive fraud, breach of fiduciary
duty, breach of confidential relationship, mistake, undue influence, and/or at a time when
conservatee lacked the capacity to understand or lawfully consent to them.
51. If left outstanding, each and all of such written instruments will be injurious to
conservatee and/or the Trust, in that they purport to affect conservatee’s personal and property
rights contrary to her wishes, welfare or best interests, but were instead intended to unlawfully
advance the wishes and interests of respondent Wiggins.
52. Respondent Wiggins knew at the time of the procurement, execution, and delivery
of each of the said written instruments that they were improper, improperly obtained, not valid,
and were contrary to the interests of conservatee and/or the Trust. Such actions were taken by
respondent Wiggins with the intention to defraud and injure conservatee. Petitioner is therefore
entitled to recover punitive damages from respondent Wiggins.
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TENTH CAUSE OF ACTION
(Disqualification of Donee under Probate Code §21350)
53. Petitioner realleges paragraphs 1 through 52 above as though the same were set
forth herein at length.
54. Any purported deeds of transfers of property or interests therein from conservatee
or from the Trust are invalid because respondent Wiggins was, at the time thereof, a disqualified
person, in a confidential and fiduciary relationship with conservatee within the proscription of
Probate Code §21350(a)(1), (a)(4) and/or (a}(6).
ELEVENTH CAUSE OF ACTION
(Declaratory Relief)
55. Petitioner realleges paragraphs 1 through 54 above as though the same were set
forth herein at length.
56. An actual controversy has arisen and now exists between petitioner on the one
hand, and respondents on the other hand, relative to their respective rights and duties, as follows:
a. Petitioner contends that neither respondent Wiggins nor respondent
Bayview Village LLC has.or should retain any purported right, title or interest in any real
estate which formerly belonged to conservatec or the Trust, or which was purchased with
the funds of or based on the credit of conservatee and/or the Trust, including, but not
limited to, 950 Newhall Street in San Francisco, California, 211 Tanager Way in Hercules,
California, 32 Argonaut Avenue in San Francisco, California, and 1760 Dover Circle in
Suisun City, California, whereas respondents claim such right, title and/or interest.
b. Petitioner contends that neither respondent Wiggins nor respondent
Bayview Village LLC has or should retain any purported right, title, or interest in the
laundromat business known as Mama Rosia’s Laundromat located at 950-A Newhall
Street in San Francisco, whereas respondents claim such right, title and/or interest.
57. Petitioner seeks a declaration that his aforesaid position is correct and that neither
respondent Wiggins nor respondent Bayview Village LLC has or is entitled to retain any
purported right, title, or interest in the real property or personal property identified hereinabove.
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58. A judicial declaration is necessary and appropriate at this time under the
circumstances in order to determine the judicial rights of the parties, and to avoid inconsistency
and circularity of action.
WHEREFORE, petitioner prays for judgment as follows:
First Cause of Action:
1. For the value of the property converted.
2. For compensatory damages according to proof.
3. For interest on the foregoing sums at the legal rate until restored.
4 For damages for time and money properly expended in the pursuit and recovery
of all property and assets converted, including attorneys’ fees.
5. For punitive damages.
Second Cause of Action:
6. For compensatory damages according to proof.
7. For rescission and restoration to the Trust of all sums taken or received by
respondent Wiggins from conservatee or the Trust.
8. For punitive damages.
Third Cause of Action:
9. For compensatory damages according to proof.
10. For attorneys’ fees.
1l. For punitive damages.
Fourth Cause of Action:
12. For rescission of all transfers and restoration thereof to petitioner, and for
restoration of all sums so taken or received by respondent Wiggins from
conservatee or from the Trust, plus interest thereon at the legal rate.
Fifth Cause of Action:
13. For restoration of all assets, property and monies received or obtained by
respondent Wiggins from conservatee or the Trust.
14. For compensatory damages according to proof.
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15. For interest at the legal rate on all sums ordered restored.
16. For double damages under Probate Code §859.
Sixth Cause of Action:
17. For the rendition of an accounting and restoration of all amounts shown therein to
be owing to petitioner or the Trust, including interest thereon at the legal rate.
Seventh Cause of Action:
18. For rescission of all transfers and restoration thereof to petitioner, and for
restoration of all sums so taken or received by respondent Wiggins from
conservatee or from the Trust, plus interest thereon at the legal rate.
Eighth Cause of Action:
19. | For compensatory damages according to proof.
20. For rescission and restoration of all sums taken or received by respondent
Gregory Wiggins from conservatee or the Trust.
21. For punitive damages.
Ninth Cause of Action:
22. That each instrument procured from conservatee by respondent Gregory Wiggins
or respondent Bayview Village LLC be declared void, including, but not limited
to, the purported deed from conservatee to respondent Wiggins and then from
respondent Wiggins to his trust for 211 Tanager Way, attached as Exhibit 1, and
the purported transfer deed for 950 Newhail Street in San Francisco, California,
attached as Exhibit 2.
23. That respondents deliver all such invalidated instruments immediately to the clerk
of the court for cancellation.
24. For damages according to proof in the event that respondents fail to surrender the
invalidated instruments for cancellation pursuant to the judgment.
25. For other general and special damages according to proof.
26. For pre-judgment interest at the legal rate.
27. For punitive damages.
15
Amended and Supplemental Petition for Recovery of Trust Property, Etc.SUITE 222
AGS CALIFORNIA STREET
MacINNIS. DONNER & KOPLOWITZ
ATTORNEYS AT LAW
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Tenth Cause of Action:
28.
For an order, decree, and judgment invalidating each purported deed or transfer of
any property or interest from conservatee or the Trust to respondent Wiggins or
his designee.
Eleventh Cause of Action:
29.
For a declaration that none of respondent Wiggins, respondent Bayview Village
LLC or the transferees of cither own or are entitled to claim or retain any right,
title or interest in any real or personal property owned by conservatec or the Trust
or purchased with the funds of either, including, but not limited to, 950 Newhall
Street in San Francisco, California, 211 Tanager Way in Hercules, California, 32
Argonaut Avenue in San Francisco, California, 1760 Dover Circle in Suisun City,
California and/or the laundromat business known as Mama Rosia’s Laundromat
located at 950-A Newhall Street in San Francisco, California.
All Causes of Action:
30.
31.
32.
33.
Dated: August 6, 2010
Rescission of any and all documents executed by conservatee (or forged on behalf
of conservatee) in favor of respondent Wiggins, including, but not limited to, any
outstanding or purported deeds, conveyances, contracts, agreements, loan
obligations, wills, codicils, trusts, powers of attorney, or otherwise.
Costs.
Attomeys’ fees.
Such other and further relief as may be just
MACINNIS, DONNER & KOPLOWITZ
By: A
Edwar oplewitz
Attorneys for Attorneys for Herb
Thomas, conservator of the estate and
successor trustee
16
Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS. DONNER & KOPLOWITZ
ATTORNEYS AT LAW
‘SUITE 222
46S CALIFORNIA STREET
SAN FRANCISCO. CA 94104
TELEPHONE: (415) 424-2400
FAX; (415) 433-1917
VERIFICATION
I, Herb Thomas, an individual, conservator of the Estate of Rosia L. Hart and trustee of
the Rosia L. Hart Revocable Trust, am a defendant namied in the above-entitled pleading. [ am
authorized to make this verification. I have read the “AMENDED AND SUPPLEMENTAL
PETITION FOR RECOVERY OF TRUST PROPERTY, FOR CANCELLATION OF
INSTRUMENTS, AND FOR DAMAGES, INCLUDING FOR ELDER ABUSE (Probate Code
§§850, 859; Civil Code §3412; Inst. & Wel. Code §§15610.30, 15657)” and know the contents
thereof. The same is true of my own knowledge, except as to matters stated therein on
information and belief, and as to those matters, I believe it to be true.
i declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Dated: Aust 4.2010
hed) yore Ss
Herb Thomas, individually as
conservator and successor trustec
17
Amended and Supplemental Petition for Recovery of Trust Property, Etc.> ¢
2
RECORDING REQUESTED BY: ' . _
Chicago Titte Company 1 \
Tea ne CactT nos praa3s5 n3s1 10212 bacarder iftice ~
Title Ho.: 06-39210212-RM ca EIST Cp he ta fear ie
when Recorded Mal ocament DOC 2667-0014021-00
cove won fect 2- Chicage Title natn.
ry i
211 Tanager Way Wednesday, JON 17, 207 ae are
Hercules, CA 94547 FTC $2.00! ;
Wt mH 4M 1ea/R2/1-3
“RN 360-655-006 FREEONES OE
GRANT DEED
The undersigned grantor(s) declare(s)
Documentary transfer tax is $ 0.00 brant tex $00
{x 1 ae ar Ram valor ie von of eons
{ } computed on full value less value of lens or encumbrances remaining at time of sale,
t ] Unincorporated Area City of Hercules,
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
Rosia L. Hart and Gregory K. Wiggins, as joint tenants
hereby GRANT(S) to Gregory K. Wiggins, an unmarried man
the following described real property In the City of Hercules, County of Contra Costa, State of California:
SEE EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF
DATED: January 8, 2007
STATE OF CALIFORNIA ) Raa lea ar
county oF Cortes CoSfo—______) ROSIA (, HART
: ere me,
Callao Beary Buti
appeared _ SOSA LAR Tn GREGORY K.
===
personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that a
his/her/their signature(s) on the instrument
person(s), or the entity upon behalt of which the
person(s) acted, executed the instrument.
Witness my hand and offidat
Sign
FD-213 (Rev 7/96) ‘GRANT DEED
(granttiy(07-06)OL4AGE1
State of Califomia }
}ss
County of San Francie }
On _ b= 4-97 ‘ before me
lendin Vere. incon RoC.
personally appeared
Careapess Anttags
personally known to me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized
capacityies) and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
v
WITNESS my hand and official seat.
Signature (seal)
F. APPS WRATAAADOC-ACKNOW-ZDOC
© Doceateas and Seningy ham Destiny Homie esezew Goce PONDS ack dae
EXHIBIT 1-
Escrow No. 06-35503297-LH 014624
Locate No.: CACTI7707-7738-2355-00391 10212
Tite No.: 06-39110222-RM
EXHIBIT "A"
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HERCULES, COUNTY OF CONTRA COSTA,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
Lot 23, map of Subdivision 6505, filed December 30, 1986, in Book 310 of Maps, page 29, Contra Costa County Records.
APN: 360 - 653 - 006
EXHIBIT 1MANE TAX STATEMINTS 70: crores strates mes ry
Common Addrem: 950-A Newhall
Sn Pree Caloris 4134
GRANT DEED
‘HE UNDERSICNED GRANTOR(S) DECLARE(S) ©The sranior and the grantee i this.
DOCUMENTARY TRANSFER TAX is $ -0- Exempr®: conveyance atc compeland of the seme’
1] computed on full valag of property conveyed, oF ‘panties who opntings to bold the same
{compet on fo alas les vai of ine or propartionnie imerest in the property,
snouenbrances rerusining as time of usle, Californas Revenue and Tazation
(| Unincorporated area: Chyof Cotte § 11923i0}.
POR VALUABLE CONSIDERATION, receipt of which ix horeby acknowledged,
ROSIA L. HART, TRUSTEE OF THE ROSIA L. HART REVOCABLE TRUST DATED
MAY 19, 2006 Grantor”);
hercby grants ta:
BAYVIEW VILLAGE LLC; A CALIFORNIA LIMITED LIAMILITY COMPANY
Bae arn CE A a Se eee ated in the Caunly of San Franriaza, Se of
Califoraia, as more particularly described on Exhibli “A” susched
IN WITNESS WHEREOF. the Granzor has execated this Grant Deed asot_ £-/G __. 2005,
_
e
HART, ROSIA L. HART
REVOCABLE TRUST OATHD MAY? 19, 2004
aabrend
EXHIBIT 2STATEOF CALIFORNIA.)
so)
COUNTY OF Set At hZ&2o. )
personally appeaneh AL. a
[] personally known to me ee
to. be Ue person whose susie avi mgensa anges oe ne
The caccured the same i in 8B sutorized capacity, and that by be signature on the inetrument the
person, or the catity upon behalf of which the perenn acted, executed the
SIGNER IS REPRESENTING:
or Enwity(ies): ROSIA L. HART, TRUSTEE OF THE ROSIA L. HART
REVOCABLE TRUST DATED MAY 19, 2906
Name of Lastrumeat;’ GRANT DEED
Phd
EXHIBIT 2ey
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHEASTERLY UNE
OF KIRKWOOD AVENUE AND THE NORTHWESTERLY LINE OF NEWHALL
STREET; RUNNING THENCE NORTHWESTERLY ALONG SAID LINE OF
KIRKWOOD AVENUE 75 FEET; THENCE AT A RIGHT ANGLE NORTHEASTERLY
"400 FEET; THENCE AT A RIGHT ANGLE SOUTHEASTERLY 75 FEET TO THE
NORTHWESTERLY LINE OF NEWHALL STREET: THENCE SQUTHWESTERLY
ALONG SAID LINE OF NEWHALL STREET 100 FEET TO THE POINT OF
SEGINNING. BEING LOTS.25, 28 AND 27, IN BLOCK 210, O*NEIL AND HALEY
TRACT.
BLOCK 5279, LOT 4
COMMONLY KNOWN AS: 850 NEWHALL STREET, SAN FRANCISCO, CA
ann
EXHIBIT.2
Preview
IOUT SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-10-2010 8:47 am Case Number: PTR-06-288755 Filing Date: Aug-10-2010 8:42 Juke Box: 001 Image: 02935052 SUBSEQUENT PROBATE PETITION IN THE MATTER OF THE ROSIA L. HART REVOCABLE TRUST 001P02935052 Instructions: Please place this sheet on top of the document to be scanned.MacINNtS, DONNER & KOPLOWITZ ATTORNEYS AT LAW SUITE 222 465 CALIFORNIA STREET SAN FRANCISCO, CA 94104 TELEPHONE: (415) 434.2400 FAX: (418) 433-1917 27 28 Cc o Andrew K. Schultz, Esq. (SBN: 215917, Witherspoon & Siracusa L 1550 Bryant Street, Suite 875 San Francisco County Superior Cou San Francisco, California 94103-4879 San Fra Telephone: (415) 552-1814 AUG 1 6 2010 County Bunerior Co Facsimile: (415) 552-2158 CLERK OF THe COURT Edward A. Koplowitz, Esq. (SBN: itn “Sacre CLER MacInnis, Donner & Koplowitz 465 California Street, Suite 222 San Francisco, CA 94104 Telephone: (415) 434-2400 Facsimile: (415) 433-1917 SEP 13 2010 209 A.M., RM. 204 SUPERIOR COURT OF THE STATE OF CALIFORNIA Attorneys for Herb Thomas, conservator of the estate and successor trustee IN AND FOR THE COUNTY OF SAN FRANCISCO In re the Conservatorship of the Estate of Case Nos.: PTR-06-288755 a“ ROSIA LEE HART, PCN-06-288756 Conservatee. AMENDED AND SUPPLEMENTAL PETITION FOR RECOVERY OF TRUST PROPERTY, FOR CANCELLATION OF INSTRUMENTS, AND FOR DAMAGES, INCLUDING FOR ELDER ABUSE (Probate Code §§850, 859; Civil Code §3412; Inst. & Wel. Code §§15610.30, 15657) Inre THE ROSIA L. HART REVOCABLE TRUST DATED MAY 19, 2004 HERB THOMAS, as conservator of the estate of Rosia Lee Hart, conservatee, and as successor trustee, Petitioner, vs. GREGORY K. WIGGINS, individually and as trustee of the Gregory K. Wiggins Trust; BAY VILLAGE LLC; and DOES 1 - 10, inclusive, Respondents. 1 Amended and Supplemental Petition for Recovery of Trust Property, Etc.x g = a < é . ti z¢ ab « Ras Nz Sue gee 52 tag ons ge 3 3 = 3 a a o x w a Ww Zz z o a a Zz Zz a < = 27 28 c oS Petitioner Herb Thomas, as conservator of the estate of Rosia Lee Hart, conservatee, and as successor trustee of the Rosia L. Hart Revocable Trust dated May 19, 2004 (“the Trust”), alleges as follows: GENERAL ALLEGATIONS 1. Petitioner Herb Thomas is the duly appointed and acting successor trustee of the Trust. 2. Petitioner Herb Thomas is also the duly appointed and acting conservator of the estate of Rosia Lee Hart, conservatee. 3. Petitioner Herb Thomas petitioned for appointment as temporary conservator and for appointment as temporary trustee because of investigations conducted and reports obtained by a number of agencies which exist to protect the interests of susceptible senior citizens such as conservatee, including, but not limited to, the offices of Adult Protective Services for Contra Costa and San Francisco Counties, the Hercules Police Department, the San Francisco City Attorney, the San Francisco Public Guardian, Contra Costa Aging and Adult Services, and the Contra Costa District Attorney’s Office. The conclusions reached from such investigations and reports were that conservatee was cognitively impaired, that conservatee was unaware of respondent Gregory K. Wiggins’ (“respondent Wiggins”) machinations, that conservatee was susceptible to fraud and to the undue influence and elder abuse practiced by respondent Wiggins, and that conservatee was helpless to prevent the financial elder abuse inflicted by respondent Wiggins. 4, Conservatee Rosia Lee Hart is the settlor, original trustee and life income beneficiary of the Trust. The Trust was appropriately funded, and property of the Trust included settlor’s fee interest in that certain improved real estate in the City and County of San Francisco described and commonly known as 950 Newhall Street, San Francisco, California, and legally described as follows: Beginning at the point of intersection of the northeasterly line of Kirkwood Avenue and the northwesterly line of Newhall Street; running thence northwesterly along said line of Kirkwood Avenue 75 feet; thence at a right angle northeasterly 100 feet; thence at a right angle southeasterly 75 feet to the 2 Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS, DONNER & KOPLOWITZ ATTORNEYS AT LAW SUITE 222 465 CALIFORNIA STREET SAN FRANCISCO, CA 94104 TELEPHONE: (418) 434.2400 FAX: (418) 433-1917 northwesterly line of Newhall Street; thence southwesterly along said line of Newhall Street 100 feet to the point of beginning. Being Lots 25, 26 and 27, in Block 210, O’Neil and Haley Tract. Block 5279, Lot 4 Commonly known as: 950 Newhall Avenue, San Francisco, California. 5. Respondent Wiggins is a stranger to conservatee. He is believed to have befriended conservatee following the death of her husband and insinuated himself into conservatce’s private affairs, living arrangements, finances, property interests, assets, and administration of the Trust. Respondent Wiggins is believed to have procured one or more powers of attorney in his favor from conservatee, and he assumed a confidential and fiduciary relationship with conservatee. 6. Petitioner is informed and believes, and thercon alleges, that respondent Bayview Village LLC is an entity formed, operated, and purported to be owned by respondent Wiggins as a front, shell, and ruse; that said entity is not in good standing and is undercapitalized; that respondent Bayview Village LLC is the alter ego of respondent Wiggins; and that its recognition would sanction fraud and promote injustice. 7. Petitioner is ignorant of the true names and capacities of respondents sued herein as DOES 1-10, inclusive, and therefore sues these respondents by such fictitious names. Petitioner will further amend this petition to show their true names, capacities and involvement when ascertained. Each of the DOE respondents is responsible in some manner for the occurrences herein alleged, and the damages as herein alleged were proximately caused by their conduct. At all times herein mentioned, each of the respondents sued herein as a DOE was acting as the agent, employee, or co-conspirator of the remaining respondents and was acting at all times within the scope of such agency, employment, and/or conspiracy. 8. Conservatee is an individual who is, and at all times herein mentioned was, susceptible to fraud, overreaching, and the undue influence of persons in a confidential and/or fiduciary relationship with her, including respondent Wiggins. 9. Petitioner is informed and believes, and thereon alleges, that respondent Wiggins has followed a practice and pattern of unduly influencing and/or taking advantage of elderly and/or infirm persons other than conservatee. 3 Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS, DONNER & KOPLOWITZ ATTORNEYS AT LAW SUITE 222 465 CALIFORNIA STREET SAN FRANCISCO, CA 94104 10. Petitioner is informed and believes, and thereon alleges, that after the filing and service of the original petition herein, and in particular on or about January 17, 2007, being at a time when Rosia L. Hart was a conservatee and lacked either the capacity or authority to transfer any interests in property, respondent Wiggins caused Mrs. Hart to transfer her one-half undivided joint tenancy interest in the real property at 211 Tanager Way in Hercules, California to respondent Wiggins, an unmarried man. See Exhibit 1. 11. Onor about January 17, 2007, respondent Wiggins obtained a loan for $540,000 from World Savings, secured by his ostensible ownership interest in 211 Tanager Way. 12. Inor about November 2007, respondent Wiggins transferred title to 211 Tanager Way to himself as trustee of the Gregory K. Wiggins Trust. 13. Respondent Wiggins has not restored the name of Mrs. Hart or that of her conservator to the title of 211 Tanager Way, has not distributed any of the aforesaid loan proceeds to Mrs. Hart or her conservator, and has not paid over or accounted for any profits, fruits, or investments made with such loan proceeds. CLAIMS 14, Respondent Wiggins has abused his confidential and fiduciary relationship with conservatee, and unduly influenced conservatee, as follows: a. He caused conservatee to sell her long-time residence at 706 De Haro Street in San Francisco, California, although there was no medical, emotional or financial reason for her to do so. b. He unlawfully obtained or converted funds from conservatee, from the Trust, and/or from the laundromat owned by conservatee at 950-A Newhall Street in San Francisco, California. e He unlawfully obtained funds from conservatee or her Trust, or used the funds of conservatee or her Trust, to purchase interests in real estate for himself. d. He unlawfully wrote checks on conservatee’s accounts for his personal benefit. Mit 4 Amended and Supplemental Petition for Recovery of Trust Property, Etc.ATTORNEYS AT LAW SUITE 222 465 CALIFORNIA STREET SAN FRANCISCO, CA 94104 a z Sx gt 4 a ? MacINNIS, DONNER & KOPLOWITZ 27 28 He e. He held himself out as the owner of 950 Newhall Street in San Francisco, California, and dealt with such property as though it were his own, while causing all bills and expenses incurred for such property to be charged to conservatee or the Trust. In particular, respondent Wiggins devised a plan and scheme to obtain the interest in 950 Newhall for himself, and to use conservatee’s funds and credit to undertake a development project for his own benefit and profit, even though he had no legal interest in said real estate nor has he contributed any funds to any development project therefor. f. Respondent Wiggins wrongfully took over management of the laundromat located at 950-A Newhall Street and operated it as though it were his own, including keeping all proceeds from the operation thereof. g. Respondent Wiggins isolated conservatee from her friends, relatives and those who would have helped sustain her. Respondent Wiggins interfered with and impeded the rendition of necessary social and medical services to conservatee, as well as with the investigations of Adult Protective Services and others concerned about conservatee’s welfare and the status of her assets and finances. h. Respondent Wiggins purported to operate an unregistered credit repair business from premises owned by conservatee or the Trust. i, Respondent Wiggins undertook and is in the process of undertaking additional acts intended to improperly and unlawfully obtain the money and assets of conservatee and the Trust, the precise nature of which will be specified by further amendment when ascertained. j Respondent Wiggins has improperly made charges and/or withdrawals against conservatee’s credit card accounts. k, Respondent Wiggins wrongfully induced and caused conservatee to transfer her undivided joint tenancy interest in 211 Tanager Way to him for no consideration. 5 Amended and Supplemental Petition for Recovery of Trust Property, Etc.al a ° x & a ui z Zz ° a g Z Z Q < = 5 ® @ 2 a 2 @ 6 2 E % b g e Se a2 z ee 5 a3 3 ® 3 3 3 3 3 < é 8 FIRST CAUSE OF ACTION (Conversion) 15. Petitioner realleges paragraphs | through 14 above as though the same were set forth herein at length. 16. Respondent Wiggins intentionally, and without authorization, wrongfully took, or obtained funds from conservatee and/or the Trust to which he was not entitled, including, but not limited to, loan proceeds received for 211 Tanager Way. 17. Despite repeated requests therefor, respondent Wiggins has failed and refused, and continues to fail and refuse, to restore said funds. 18. Such acts and conduct by respondent Wiggins constitute conversion, and petitioner is entitled to recover all of such sums so converted, including interest thereon at the legal rate from the date of conversion, as well as all sums expended in pursuing such converted property, including, but not limited to, attorneys’ fees. 19, Respondent Wiggins’ acts of conversion were intentional and malicious, and constituted despicable conduct in derogation of the property rights of the conservatee and the Trust, thereby entitling petitioner to recover punitive damages. SECOND CAUSE OF ACTION (Breach of Confidential and Fiduciary Duty - Constructive Fraud) 20. Petitioner realleges paragraphs 1 through 19 above as though the same were set forth herein at length. 21. By his acts as herein alleged, respondent Wiggins breached his confidential relationship with and fiduciary duties owed to conservatee, both individually, as a trustee and as the beneficiary of the Trust, as well as to the remaining persons interested in the eventual devolution of the Trust. Such conduct constitutes constructive fraud under Civil Code §1573. 22. Respondent Wiggins’ acts were intentional and malicious, and constituted despicable conduct in derogation of the property rights of the conservatee and of the Trust, thereby entitling petitioner to recover punitive damages. “i 6 Amended and Supplemental Petition for Recovery of Trust Property, Etc.3 3 Suite 222 465 CALIFORNIA STREET ATTORNEYS AT LAW ou Zz £9 gr ae zu fa we MacINNIS, DONNER & KOPLOWITZ THIRD CAUSE OF ACTION (Financial Elder Abuse) 23. Petitioner realleges paragraphs 1 through 22 above as though the same were set forth herein at length. 24. Conservatee was, at all times mentioned herein, an “elder” within the definition of Welfare & Institutions Code §15610.27. The acts and conduct of respondent Wiggins as alleged hereinabove constitute financial elder abuse under Welfare & Institutions Code §15657, as defined by Welfare & Institutions Code §15610.30. 25. Respondent Wiggins was guilty of recklessness, oppression, fraud, and malice in the commission of the abuse described above. 26. Under Welfare and Institutions Code §15657.5(a), respondent Wiggins is liable to petitioner for reasonable attomey fees and costs, including reasonable fees for the services of petitioner and petitioner’s attorneys, as required for the litigation of this claim. 27. The conduct of respondent Wiggins was willful and intended to cause injury to conservatee. Petitioner is therefore entitled to recover punitive damages from respondent Wiggins. FOURTH CAUSE OF ACTION (Damages for Undue Influence) 28. Petitioner realleges paragraphs | through 27 above as though the same were set forth herein at length. 29, Conservatee reposed trust and confidence in respondent Wiggins, who also stood in a fiduciary relationship to her. 30. | Respondent Wiggins used and abused such trust and relationship to gain unfair advantage of conservatee and to induce and cause her to make, consent, or purport to “ratify” transfers involving her property and Trust property, which transfers were undertaken for his sole benefit. Any such actions taken or alleged to have been taken by conservatee were not of her own free will and consistent with her own desires, rights and obligations, or with her desires, rights and obligations as trustee of the Trust, but rather reflected the desires and importunings of respondent Wiggins. 7 Amended and Supplemental Petition for Recovery of Trust Property, Etc.Q | 31. Any apparent or belated alleged consents of conservatee were, therefore, not real 2 | and free, in that they were obtained through respondent Wiggins’ undue influence and abuse of 3 || his confidential and fiduciary relationship, and conservatee would not have given any of such 4 || ostensible consents, if give them she did, but for such undue influence and other misconduct by 5 || respondent Wiggins. 6 32. Respondent Wiggins actively procured the prohibited transfers and transactions, 7 || as alleged hereinabove. In so doing, respondent Wiggins unduly benefitted, and enriched 8 || himself, at the expense of conservatee and all other persons interested in the assets and 9 || devolution of the Trust. 10 33. Petitioner, as successor trustee, is therefore entitled to rescind all transfers of 11 j| money from conservatee and from or on account of Trust assets, and is entitled to recover E 3 & g : 53 3 . 12 || damages in the amount of such transfers from respondent Wiggins. Respondent Wiggins holds . up : ; 13 || all of such monies and their fruits, interest, and investments as constructive trustee for the use ¥ Pees a 14 || and benefit of petitioner, with the obligation to forthwith restore such monies and their fruits to 6 E #15 petitioner, and to pay legal interest thereon to the date of their return. wi 16 z 7 FIFTH CAUSE OF ACTION 3 {For Recovery of Property - Probate Code §§850, 859) = 8 34, _ Petitioner realleges paragraphs 1 through 33 above as though the same were set " forth herein at length. 20 35. All transfers of assets and property from conservatee or the Trust, for the benefit 2 of or at the direction of respondent Wiggins, or derived from Trust property as alleged 2 hereinabove, and all sums taken by respondent Wiggins from conservatee and/or the Trust, were 3 invalid transfers, made without consideration and should be set aside. Such transfers include, but 2 are not limited to: s a. Any purported transfer of any interest in 950 Newhall Street, San 26 Francisco, California to respondent Wiggins or any other holder at his direction; ” b. The purported transfer of the Trust’s interest in 950 Newhall Street, San 28 Francisco, California to respondent Bayview Village LLC; 8 Amended and Supplemental Petition for Recovery of Trust Property, Etc.ATTORNEYS AT LAW Sure 222 46S CALIFORNIA STREET SAN FRANCISCO. CA 94104 TELEPHONE: (415) 434-2400 FAX; (418) 433-1917 MacINNIS. DONNER & KOPLOWITZ 27 28 on _ we Nw GQ Any purported transfer of any interest or right to proceeds of conservatee in 32 Argonaut Avenue in San Francisco, California to respondent Wiggins or any other holder at his direction; d. Any purported transfer of conservatee’s or the Trust’s interest in 1760 Dover Circle in Suisun City, California to respondent Wiggins or any other holder at his direction; and e Any purported transfer of conservatee’s or the Trust’s interest in 211 Tanager Way, Hercules, California to respondent Wiggins, to the Gregory K. Wiggins Trust, or to any other holder at his direction. 36. Asa person who, in bad faith, wrongfully took, concealed, or disposed of such property, respondent Wiggins should be assessed damages in an amount twice the value of the property taken, pursuant to Probate Code §859, SIXTH CAUSE OF ACTION (Accounting) 37. Petitioner realleges paragraphs | through 36 above as though the same were set forth herein at length. 38. Respondent Wiggins and respondent Bayview Village LLC should each be ordered to provide a full and complete accounting of all assets and property which respondent Wiggins and respondent Bayview Village LLC took or obtained from conservatee or from the Trust, or on account of any assets of either of them, including for the loan secured on 211 Tanager Way. All sums found to be owed or restorable to conservatee or the Trust should be repaid immediately to petitioner with interest thereon at the legal rate from the dates received or taken. SEVENTH CAUSE OF ACTION (Unjust Enrichment) 39, Petitioner realleges paragraphs 1 through 38 above as though the same were set forth herein at length. Hil 9 Amended and Supplemental Petition for Recovery of Trust Property, Etc.3 a ° ¥it ait we is 25358. Ok gtéi QO 5g Wi Zz Z g = 27 28 40. If respondent Wiggins or respondent Bayview Village LLC is allowed to retain the assets, property and/or money of conservatee and/or the Trust and/or their fruits, including the proceeds of the loan received on 211 Tanager Way, such respondent will have been unjustly enriched at the expense of conservatee and the Trust beneficiaries entitled thereto. 41. Accordingly, respondent Wiggins and respondent Bayview Village LLC hold all such proceeds and the fruits thereof each as a constructive trustee for the use and benefit of petitioner, with the obligation to forthwith convey the same to petitioner, with interest thereon at the legal rate. EIGHTH CAUSE OF ACTION (Actual Fraud) 42. Petitioner realleges paragraphs | through 41 above as though the same were set forth herein at length. 43. Petitioner is informed and believes, and thereon alleges, that respondent Wiggins made misstatements and false promises to conservatee which he knew, or in the exercise of reasonable diligence, should have known, were not true, including, but not limited to, the following: a. That he would take care of conservatee for the remainder of her life. b. That conservatee could rely on him to look out for her best interests and preserve and maximize her financial position. c That he would only use funds of conservatee or her Trust to advance her interests and not his own. d. That his name would appear on title to assets owned by conservatee or the Trust only for convenience. e That Bayview Village LLC was established for conservatee’s benefit. f. That conservatee was obligated to deed her interest in 211 Tanager Way to respondent Wiggins. 44, In fact, the aforesaid representations and promises were false: ML 10 Amended and Supplemental Petition for Recovery of Trust Property, Etc.MaciNNIS, DONNER & KOPLOWITZ ATTORNEYS AT LAW ‘SUITE 222 465 CALIFORNIA STREET SAN FRANCISCO, CA 94104 27 28 c oS a. Respondent Wiggins had no intention of taking care of conservatee, but only of obtaining access to, control over and ultimate ownership of the assets of conservatee and of her Trust. b. Respondent Wiggins intended to, and has sought to, advance his own financial interests without disclosure to, and at the expense of, conservatee and the Trust. e Respondent Wiggins has used conservatee’s assets and those of the Trust, including bank accounts, to write checks for himself, for his own expenses, and for third persons with whom he (but not conservatee) has been in a relationship, and he has sought to advance his own interests at the expense of those of conservatee. d. Respondent Wiggins intended to and has obtained ostensible legal rights and credit by reason of improperly having placed his name on title to or claiming interests in property which belongs to conservatee or the Trust. e Bayview Village LLC was established by respondent Wiggins for his sole personal benefit and to conceal his own improper activity, and for which he made himself manager, although he contributed no capital to it and was and is unqualified for such position, f. Conservatee was under no legal obligation to transfer her interest in 211 Tanager Way to respondent Wiggins, particularly for no consideration. 45. Conservatee justifiably relied on the statements, blandishments, promises, and representations of respondent Wiggins because of his confidential and fiduciary relationship with her. 46. Had conservatee known the true facts, she would not have acted as she did, nor sign any documents at the behest of respondent Wiggins. 47. The conduct of respondent Wiggins was despicable, oppressive, fraudulent, and malicious, and was taken in conscious disregard of the property rights of conservatee and of the Trust. As a consequence, petitioner is entitled to recover punitive damages from respondent Wiggins. “it i Amended and Supplemental Petition for Recovery of Trust Property, Etc.538 3 8E4, § Elsa Ee rots hel 58 8$o88 ecZ8 gE oe a ER5zZe2 O° z<5 £ SfTs & wl ht ged ae MacINNIS. DONNER & KOPLOWITZ 27 28 NINTH CAUSE OF ACTION (Cancellation of Instruments - Civil Code §3412) 48. Petitioner realleges paragraphs 1 through 47 above as though the same were set forth herein at length. 49. _ Petitioner is informed and believes, and thereon alleges, that there are in existence one or more written instruments which purport to bind conservatee, affect the rights of conservatee, grant power or authority to respondent Wiggins and/or Bayview Village LLC, and/or affect the title or ownership of property, including, but not limited to, contracts, deeds, agreements, loan obligations, powers of attorney, wills, codicils, and the like, and particularly including (a) the purported transfer of conservatee’s interest in 211 Tanager Way, a copy of which is attached as Exhibit 1, and (b) the purported transfer deed for 950 Newhall Street in San Francisco, California from conservatee as trustee to Bayview Village LLC dated August 19, 2005, a copy of which is attached as Exhibit 2. 50. Each and all of such written instruments are void or voidable since having been obtained by respondent Wiggins by means of actual fraud, constructive fraud, breach of fiduciary duty, breach of confidential relationship, mistake, undue influence, and/or at a time when conservatee lacked the capacity to understand or lawfully consent to them. 51. If left outstanding, each and all of such written instruments will be injurious to conservatee and/or the Trust, in that they purport to affect conservatee’s personal and property rights contrary to her wishes, welfare or best interests, but were instead intended to unlawfully advance the wishes and interests of respondent Wiggins. 52. Respondent Wiggins knew at the time of the procurement, execution, and delivery of each of the said written instruments that they were improper, improperly obtained, not valid, and were contrary to the interests of conservatee and/or the Trust. Such actions were taken by respondent Wiggins with the intention to defraud and injure conservatee. Petitioner is therefore entitled to recover punitive damages from respondent Wiggins. Hite 12 Amended and Supplemental Petition for Recovery of Trust Property, Ete.3 4 3 « $ o a & & s 2 5 z 6 2 8 ¢ MacINNIS, DONNER & KOPLOWITZ 27 28 TENTH CAUSE OF ACTION (Disqualification of Donee under Probate Code §21350) 53. Petitioner realleges paragraphs 1 through 52 above as though the same were set forth herein at length. 54. Any purported deeds of transfers of property or interests therein from conservatee or from the Trust are invalid because respondent Wiggins was, at the time thereof, a disqualified person, in a confidential and fiduciary relationship with conservatee within the proscription of Probate Code §21350(a)(1), (a)(4) and/or (a}(6). ELEVENTH CAUSE OF ACTION (Declaratory Relief) 55. Petitioner realleges paragraphs 1 through 54 above as though the same were set forth herein at length. 56. An actual controversy has arisen and now exists between petitioner on the one hand, and respondents on the other hand, relative to their respective rights and duties, as follows: a. Petitioner contends that neither respondent Wiggins nor respondent Bayview Village LLC has.or should retain any purported right, title or interest in any real estate which formerly belonged to conservatec or the Trust, or which was purchased with the funds of or based on the credit of conservatee and/or the Trust, including, but not limited to, 950 Newhall Street in San Francisco, California, 211 Tanager Way in Hercules, California, 32 Argonaut Avenue in San Francisco, California, and 1760 Dover Circle in Suisun City, California, whereas respondents claim such right, title and/or interest. b. Petitioner contends that neither respondent Wiggins nor respondent Bayview Village LLC has or should retain any purported right, title, or interest in the laundromat business known as Mama Rosia’s Laundromat located at 950-A Newhall Street in San Francisco, whereas respondents claim such right, title and/or interest. 57. Petitioner seeks a declaration that his aforesaid position is correct and that neither respondent Wiggins nor respondent Bayview Village LLC has or is entitled to retain any purported right, title, or interest in the real property or personal property identified hereinabove. Mit 13 Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS. DONNER & KOPLOWITZ ATTORNEYS AT LAW SUITE 222 58. A judicial declaration is necessary and appropriate at this time under the circumstances in order to determine the judicial rights of the parties, and to avoid inconsistency and circularity of action. WHEREFORE, petitioner prays for judgment as follows: First Cause of Action: 1. For the value of the property converted. 2. For compensatory damages according to proof. 3. For interest on the foregoing sums at the legal rate until restored. 4 For damages for time and money properly expended in the pursuit and recovery of all property and assets converted, including attorneys’ fees. 5. For punitive damages. Second Cause of Action: 6. For compensatory damages according to proof. 7. For rescission and restoration to the Trust of all sums taken or received by respondent Wiggins from conservatee or the Trust. 8. For punitive damages. Third Cause of Action: 9. For compensatory damages according to proof. 10. For attorneys’ fees. 1l. For punitive damages. Fourth Cause of Action: 12. For rescission of all transfers and restoration thereof to petitioner, and for restoration of all sums so taken or received by respondent Wiggins from conservatee or from the Trust, plus interest thereon at the legal rate. Fifth Cause of Action: 13. For restoration of all assets, property and monies received or obtained by respondent Wiggins from conservatee or the Trust. 14. For compensatory damages according to proof. 14 Amended and Supplemental Petition for Recovery of Trust Property, Etc.‘SUITE 222 465 CALIFORNIA STREET ATTORNEYS AT LAW SAN FRANCIS( MacINNIS. DONNER & KOPLOWITZ 27 28 -~, ~~ 15. For interest at the legal rate on all sums ordered restored. 16. For double damages under Probate Code §859. Sixth Cause of Action: 17. For the rendition of an accounting and restoration of all amounts shown therein to be owing to petitioner or the Trust, including interest thereon at the legal rate. Seventh Cause of Action: 18. For rescission of all transfers and restoration thereof to petitioner, and for restoration of all sums so taken or received by respondent Wiggins from conservatee or from the Trust, plus interest thereon at the legal rate. Eighth Cause of Action: 19. | For compensatory damages according to proof. 20. For rescission and restoration of all sums taken or received by respondent Gregory Wiggins from conservatee or the Trust. 21. For punitive damages. Ninth Cause of Action: 22. That each instrument procured from conservatee by respondent Gregory Wiggins or respondent Bayview Village LLC be declared void, including, but not limited to, the purported deed from conservatee to respondent Wiggins and then from respondent Wiggins to his trust for 211 Tanager Way, attached as Exhibit 1, and the purported transfer deed for 950 Newhail Street in San Francisco, California, attached as Exhibit 2. 23. That respondents deliver all such invalidated instruments immediately to the clerk of the court for cancellation. 24. For damages according to proof in the event that respondents fail to surrender the invalidated instruments for cancellation pursuant to the judgment. 25. For other general and special damages according to proof. 26. For pre-judgment interest at the legal rate. 27. For punitive damages. 15 Amended and Supplemental Petition for Recovery of Trust Property, Etc.SUITE 222 AGS CALIFORNIA STREET MacINNIS. DONNER & KOPLOWITZ ATTORNEYS AT LAW 38 is 28 gf ge Os gs Cu zy ee zh z4 oF 5 & 4 3 3 a 2 % i 27 28 Tenth Cause of Action: 28. For an order, decree, and judgment invalidating each purported deed or transfer of any property or interest from conservatee or the Trust to respondent Wiggins or his designee. Eleventh Cause of Action: 29. For a declaration that none of respondent Wiggins, respondent Bayview Village LLC or the transferees of cither own or are entitled to claim or retain any right, title or interest in any real or personal property owned by conservatec or the Trust or purchased with the funds of either, including, but not limited to, 950 Newhall Street in San Francisco, California, 211 Tanager Way in Hercules, California, 32 Argonaut Avenue in San Francisco, California, 1760 Dover Circle in Suisun City, California and/or the laundromat business known as Mama Rosia’s Laundromat located at 950-A Newhall Street in San Francisco, California. All Causes of Action: 30. 31. 32. 33. Dated: August 6, 2010 Rescission of any and all documents executed by conservatee (or forged on behalf of conservatee) in favor of respondent Wiggins, including, but not limited to, any outstanding or purported deeds, conveyances, contracts, agreements, loan obligations, wills, codicils, trusts, powers of attorney, or otherwise. Costs. Attomeys’ fees. Such other and further relief as may be just MACINNIS, DONNER & KOPLOWITZ By: A Edwar oplewitz Attorneys for Attorneys for Herb Thomas, conservator of the estate and successor trustee 16 Amended and Supplemental Petition for Recovery of Trust Property, Etc.MacINNIS. DONNER & KOPLOWITZ ATTORNEYS AT LAW ‘SUITE 222 46S CALIFORNIA STREET SAN FRANCISCO. CA 94104 TELEPHONE: (415) 424-2400 FAX; (415) 433-1917 VERIFICATION I, Herb Thomas, an individual, conservator of the Estate of Rosia L. Hart and trustee of the Rosia L. Hart Revocable Trust, am a defendant namied in the above-entitled pleading. [ am authorized to make this verification. I have read the “AMENDED AND SUPPLEMENTAL PETITION FOR RECOVERY OF TRUST PROPERTY, FOR CANCELLATION OF INSTRUMENTS, AND FOR DAMAGES, INCLUDING FOR ELDER ABUSE (Probate Code §§850, 859; Civil Code §3412; Inst. & Wel. Code §§15610.30, 15657)” and know the contents thereof. The same is true of my own knowledge, except as to matters stated therein on information and belief, and as to those matters, I believe it to be true. i declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: Aust 4.2010 hed) yore Ss Herb Thomas, individually as conservator and successor trustec 17 Amended and Supplemental Petition for Recovery of Trust Property, Etc.> ¢ 2 RECORDING REQUESTED BY: ' . _ Chicago Titte Company 1 \ Tea ne CactT nos praa3s5 n3s1 10212 bacarder iftice ~ Title Ho.: 06-39210212-RM ca EIST Cp he ta fear ie when Recorded Mal ocament DOC 2667-0014021-00 cove won fect 2- Chicage Title natn. ry i 211 Tanager Way Wednesday, JON 17, 207 ae are Hercules, CA 94547 FTC $2.00! ; Wt mH 4M 1ea/R2/1-3 “RN 360-655-006 FREEONES OE GRANT DEED The undersigned grantor(s) declare(s) Documentary transfer tax is $ 0.00 brant tex $00 {x 1 ae ar Ram valor ie von of eons { } computed on full value less value of lens or encumbrances remaining at time of sale, t ] Unincorporated Area City of Hercules, FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, Rosia L. Hart and Gregory K. Wiggins, as joint tenants hereby GRANT(S) to Gregory K. Wiggins, an unmarried man the following described real property In the City of Hercules, County of Contra Costa, State of California: SEE EXHIBIT “A” ATTACHED HERETO AND MADE A PART HEREOF DATED: January 8, 2007 STATE OF CALIFORNIA ) Raa lea ar county oF Cortes CoSfo—______) ROSIA (, HART : ere me, Callao Beary Buti appeared _ SOSA LAR Tn GREGORY K. === personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that a his/her/their signature(s) on the instrument person(s), or the entity upon behalt of which the person(s) acted, executed the instrument. Witness my hand and offidat Sign FD-213 (Rev 7/96) ‘GRANT DEED (granttiy(07-06)OL4AGE1 State of Califomia } }ss County of San Francie } On _ b= 4-97 ‘ before me lendin Vere. incon RoC. personally appeared Careapess Anttags personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacityies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. v WITNESS my hand and official seat. Signature (seal) F. APPS WRATAAADOC-ACKNOW-ZDOC © Doceateas and Seningy ham Destiny Homie esezew Goce PONDS ack dae EXHIBIT 1- Escrow No. 06-35503297-LH 014624 Locate No.: CACTI7707-7738-2355-00391 10212 Tite No.: 06-39110222-RM EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF HERCULES, COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS: Lot 23, map of Subdivision 6505, filed December 30, 1986, in Book 310 of Maps, page 29, Contra Costa County Records. APN: 360 - 653 - 006 EXHIBIT 1MANE TAX STATEMINTS 70: crores strates mes ry Common Addrem: 950-A Newhall Sn Pree Caloris 4134 GRANT DEED ‘HE UNDERSICNED GRANTOR(S) DECLARE(S) ©The sranior and the grantee i this. DOCUMENTARY TRANSFER TAX is $ -0- Exempr®: conveyance atc compeland of the seme’ 1] computed on full valag of property conveyed, oF ‘panties who opntings to bold the same {compet on fo alas les vai of ine or propartionnie imerest in the property, snouenbrances rerusining as time of usle, Californas Revenue and Tazation (| Unincorporated area: Chyof Cotte § 11923i0}. POR VALUABLE CONSIDERATION, receipt of which ix horeby acknowledged, ROSIA L. HART, TRUSTEE OF THE ROSIA L. HART REVOCABLE TRUST DATED MAY 19, 2006 Grantor”); hercby grants ta: BAYVIEW VILLAGE LLC; A CALIFORNIA LIMITED LIAMILITY COMPANY Bae arn CE A a Se eee ated in the Caunly of San Franriaza, Se of Califoraia, as more particularly described on Exhibli “A” susched IN WITNESS WHEREOF. the Granzor has execated this Grant Deed asot_ £-/G __. 2005, _ e HART, ROSIA L. HART REVOCABLE TRUST OATHD MAY? 19, 2004 aabrend EXHIBIT 2STATEOF CALIFORNIA.) so) COUNTY OF Set At hZ&2o. ) personally appeaneh AL. a [] personally known to me ee to. be Ue person whose susie avi mgensa anges oe ne The caccured the same i in 8B sutorized capacity, and that by be signature on the inetrument the person, or the catity upon behalf of which the perenn acted, executed the SIGNER IS REPRESENTING: or Enwity(ies): ROSIA L. HART, TRUSTEE OF THE ROSIA L. HART REVOCABLE TRUST DATED MAY 19, 2906 Name of Lastrumeat;’ GRANT DEED Phd EXHIBIT 2ey EXHIBIT A LEGAL DESCRIPTION OF PROPERTY BEGINNING AT THE POINT OF INTERSECTION OF THE NORTHEASTERLY UNE OF KIRKWOOD AVENUE AND THE NORTHWESTERLY LINE OF NEWHALL STREET; RUNNING THENCE NORTHWESTERLY ALONG SAID LINE OF KIRKWOOD AVENUE 75 FEET; THENCE AT A RIGHT ANGLE NORTHEASTERLY "400 FEET; THENCE AT A RIGHT ANGLE SOUTHEASTERLY 75 FEET TO THE NORTHWESTERLY LINE OF NEWHALL STREET: THENCE SQUTHWESTERLY ALONG SAID LINE OF NEWHALL STREET 100 FEET TO THE POINT OF SEGINNING. BEING LOTS.25, 28 AND 27, IN BLOCK 210, O*NEIL AND HALEY TRACT. BLOCK 5279, LOT 4 COMMONLY KNOWN AS: 850 NEWHALL STREET, SAN FRANCISCO, CA ann EXHIBIT.2