Party Discovery: THE ESTATE OF HANS HERBERT BARTSCH

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Oct-12-2011 3:23 pm

Case Number: PES-08-291846
Filing Date: Oct-12-2011 3:21
Juke Box: 001 Image: 03351261
DECLARATION

THE ESTATE OF HANS HERBERT BARTSCH

001P03351261

Instructions:
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mw BH NM NY NY NY NY NY HN @ Bae sa se oa a we Bs a
on oO Om fF Ww HS =F GOGH ON OD oO FF OW NY = 8

THE LAW OFFICE OF CIARAN O’SULLIVAN

Ciaran O'Sullivan — SBN 198970

ciaran@cosullivaniaw.com
1 Post Street, Suite 800
San Francisco, CA 94101
Telephone: (415) 391-3711
Facsimile: (415) 247-7901

JOHN A. HARTOG, INC.
DAVID W. BAER — 99262

D

FI
Seen meagre
OCT 12 20

CLERK OF THE
dbaer@calteclaw.com By. #5 Lee
4 Orinda Way, Suite 250-B . =

Orinda, CA 94563

Telephone:
Facsimile:

(925) 253-1717
(925) 253-0334

Attorneys for Objector
Norman Bartsch Herterich

ESTATE OF HANS HERBERT
BARTSCH, aka HANS H. BARTSCH,
aka HANS BARTSCH

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

No. PES-08-291846

REPLY DECLARATION OF CIARAN
O’SULLIVAN IN SUPPORT MOTION TO
QUASH NOTICE OF DEPOSITION AND
FOR PROTECTIVE ORDER BARRING
FURTHER LITIGATION ACTIVITIES BY
EXECUTOR; FOR SANCTIONS AND
AWARD OF ATTORNEYS FEES

C.C.P. § 2025.240; C.C.P, § 2025.410(c);
CCP. § 2025.420: C.C-P. § 2026.010

Decedent.

Date: October 19 , 2014
Time: 2:30 p.m.
Department: 204

Judge: Hon. Mary Wiss

|, Ciaran O'Sullivan, declare:

1.

lam an attorney in good standing licensed to practice in all of the courts of

the State of California, and am one of the attorneys of record for Objector Norman

Bartsch Herterich (“Norman”). | have personal knowledge of the following facts, and if

-1-

REPLY DECLARATION OF CIARAN O’SULLIVAN IN SUPPORT OF MOTION TO QUASH
MORIGI DEPOSITION NOTICE AND FOR PROTECTIVE ORDERoo 0 ON OO FF WOW NY =

=

called upon to do so as a witness | could and would competently testify thereto.

2. Attached hereto as Exhibit A is a true and correct copy of the “amicus
curiae” letter filed by Robert F. Temmerman, Neil F. Horton, and Peter Stern, former
chairpersons of the State Bar of California's Trusts and Estates Section Executive
Committee, in support of the petition for review of the Court of Appeal’s decision in
Estate of Bartsch, 193 Cal.App.4th 885 (2011) filed by Norman Herterich in the California
Supreme Court.

| declare under penalty of perjury under the laws of the State of California that the

foregoing is true and correct.

DATED: October 12, 2011
-

By: \J A
CIARAN O’SULLIVAN

-2-

REPLY DECLARATION OF CIARAN O’SULLIVAN IN SUPPORT OF MOTION TO

| QUASH MORIGI DEPOSITION NOTICE AND FOR PROTECTIVE ORDER0 |

Exhibit A- ™

ww 7
Rowen B, Tenaenivan, 1 E Temmerman, Cilley
PaTRick A. KOHUMANN * & Kohlmann, LLP TeLePHONE

> (408) 998-9500

SONDRA J. ALLPHIN *
Mark A. SCHMUCK FACSIMILE,
CrpistinE M. KOUVARIS (408) 998-9700
Erin N. KOLKo 2502 STEVENS Creek BLVD
MASON L. BRAWLEY SAN JOSE, CALIFORNIA 95128-1654
‘Ti8A M. PEDERSEN www. icklawfirm.com

Catuy E, NELSON
Tricia L. MANNING
GAD! ZOHAR

May 19, 2011

Chief Justice Tani Cantil-Sakauye
California Supreme Court

350 McAllister Street

San Francisco, CA 94102

Re: — Supreme Court Case No. $192755: Petition for Review of Estate of Bartsch (2011)
193 Cal.App.4th 885, filed and certified for publication on March 22, 2011
by the First District Court of Appeal, Division One.

Dear Chief Justice Cantil-Sakauye:

The undersigned former chairs of the State Bar of California's Trusts and Estates Section
Executive Committee write, as individuals, to urge the Court to grant review of the First District
Court of Appeal's recent opinion in the above case. In our view, the petition for review filed by
Norman Herterich asks the Court to settle an important question of law within the meaning of
California Rules of Court 8.500(b), and this Court should therefore grant review. We believe that
the Court of Appeal misread the language of Probate Code section 11704(b), which states that in
proceedings to determine distribution rights ("heirship proceedings") "the personal representative
may file papers and otherwise participate in the proceeding as a party to assist the court." In doing
so the Court undermined the duty of impartiality required of personal representatives in disputes
between beneficiaries of estates. The Court of Appeal not only allowed the personal representative
to take sides in heirship disputes, but allowed the personal representative to charge the estate with
the costs of doing so, even if the representative has a present interest in the matter or takes a position
that is not ultimately upheld by the court. The decision therefore will undoubtedly result in abuse
of the office of estate representative by unscrupulous fiduciaries and their attorneys.

Estate of Bartsch is also the only case since the statute's enactment in 1976 to interpret
section 11704(b), yet it provides the probate bar with no specific guidance as to when or how
personal representatives may participate in proceedings to determine entitlement to estate
distribution. Instead, it provides representatives with a carte blanche to participate in any case, which
is surely not what the Legislature intended. Because heirship proceedings fulfill an important
function in probate procedure - being invoked to resolve a wide variety of issues - California's
judicial officers and probate practitioners need a definitive decision by this Court to guide them
going forward as to the permitted role of the personal representative during heirship proceedings.

* Certified as a Specialist in Estate Planning, Trust and Probate Law by the State Bar of California, Board of Legal SpecializationMay 19, 2011 i
Chief Justice Tani Cantil-Sakauye
Page 2

Construing Probate Code section 11704(b) to allow a personal representative who has a
personal interest in the estate to litigate, at estate expense, the merits of a competing claim to a
beneficial interest in the estate effects a radical change in the personal representative's duty of
impartiality. The purpose of the statute, however, was much more limited - to allow the personal
representative to participate solely o assist the court. The Bartsch court's reading of the statute, by
contrast, allows the representative to assist himself. The phrase “assist the court” must mean
something other than the representative's unrestrained participation as a party with the ability to
deplete the estate to further his own interests as a beneficiary. This is antithetical to the role of a
fiduciary, whose duties are to others.

We respectfully urge the Court to grant review, and to provide meaningful guidance going
forward as to the parameters of the permitted participation by personal representatives in heirship
proceedings.

Respectfully submitted,

Temmerman, Cilley & Kohlmann, LLP

By:

Robert E. Tefhmerman, Jr.

Horton & Roberts LLP
4 aA -
ov. Tat | Hal
Neil F. Horton

Law Office of Peter Stern, Esq.

Oh. A. Sve

Peter SternCc
Pet

PROOF OF SERVICE BY MAIL

J declare that 1 am a resident of the State of California. | am over the age of 18
years and not a party to this action. My employment address is 400 Cambridge Avenue,
Suite A, Palo Alto, California 94306. On May 24, 2011, I caused to be served the
foregoing document described as:

LETTER TO CHIEF JUSTICE TANI CANTIL-SAKAUYE
by delivering a true copy thereof to the interested parties as follows:

Thomas C. Taghiarini, Esq.

LAW OFFICES OF THOMAS C. TAGLIARINI
1999 Harrison Street, Suite 1650

Oakland, CA 94612

Attorneys for Arndt Peltner, Executor, Respondent

David W. Baer, Esq.

JOHN A. HARTOG, INC.

4 Orinda Way, Suite 250B

Orinda, CA 94563

Attorneys for Norman Herterich, Petitioner and Appellant

Ciaran O'Sullivan, Esq.

THE LAW OFFICE OF CIARAN 0’SULLIVAN

1 Post Street, Suite 800

San Francisco, CA 94104

Attorneys for Norman Herterich, Petitioner and Appellant

in the manner as follows:

By enclosing a true copy thereof in an envelope addressed as shown before sealing the
same and placing the sealed envelope for collection and mailing on the date and at the
place shown following the ordinary business practices of my employer, the Law Office of
Peter S, Stern. | am readily familiar with the business practices of the Law Office of
Peter S. Stern for collecting and processing correspondence for mailing. On the same day
that correspondence is placed for collection and mailing, it is deposited in the ordinary
course of business with the United States Postal Service in a sealed envelope with
postage fully prepaid.

I declare under penalty of perjury under the laws of the State of California that the above
is true and correct and was executed on May , 2011, at Palo Alto, California.

Janet Coggins