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FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
wow ow wy ww ww w = SanFrangisco,CalifomiaM4105
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Daniel T. Bernhard (CSB #104229)
FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
San Francisco, California 94105
Telephone: (415) 541-0200
Facsimile: (415) 495-4332
Email: bernhard@freelandlaw.com
Attorneys for Petitioner
Jennifer Shuk-Han Kwok
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
04/17/2017
Clerk of the Court
BY:CARLOS MURILLO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
PROBATE
IN RE: STAN KWONG IRREVOCABLE TRUST IT
{00263482}
1
CASE NO.: PES-10-293505
REQUEST FOR JUDICIAL NOTICE OF
STATEMENT OF DECISION
TRIAL DATE: April 17, 2017
TIME: 9:30 a.m.
LOCATION: Dept. 206
Judge: not set
REQUEST FOR JUDICIAL NOTICE OF STATEMENT OF DECISIONFREELAND COOPER & FOREMAN LLP
150 Spear Street, §
San Francisco, Cal
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Ss 82
21
Pursuant to Section 452(d) of the Evidence Code, Petitioner Jennifer Shuk-Han Kwok
respectfully requests that the Court take Judicial Notice of the Statement of Decision filed on October
26, 2015 in the Superior Court of the State of California, in and for the County of San Francisco,
Case No. Pes-09-293019.
Dated: April 15, 2017 FREELAND COOPER & FOREMAN LLP
T. BERNHARD —
Attorfieys for Petitioner
Jennifer Shuk-Han Kwok
(00263482)
2
MENT OF DECISION
REQUEST FOR JUDICIAL NOT]IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
San Francisco Gounty Superior Court
PROBATE OCT 2.62015
CLERK OF THE COURT
. A,
Case No. PES-09-293019 BY: a
IN RE: STANLEY CHONG KWONG, }
)
Deceased. ) STATEMENT OF DECISION
2
JENNIFER SHUK-HAN KWOK, as Trustee
of The Marital Trust under the Stanley Kwong
and Jennifer Kwok Revocable Trust dated
April 6, 2009,
Petitioner,
Vv.
JEANNE KWONG, as Trustee of the Stanley
Kwong Trust dated July 10, 1998, as amended.
and restated April 6, 2009,
Respondent.
ee
This court trial regarded a petition to compel distribution of assets from one trust to
another. The petition is GRANTED.
FINDINGS OF FACT
Stanley Kwong founded California Financial Mortgage Corporation in the Inner
Richmond district of San Francisco. 6/30 Tr. 18, 47. Jennifer Kwok worked closely in the office
with Stan! for 23 years. Jd, at 6-7. After dating for 15 years, Stan and Jennifer married in 1998
and then had two children: Justin and Michelle. Jd. at 6-7, 14-15.
* Because many people in this case have the same or similar surnames, they are often referred to by their first
names. No disrespect is intended.Astute investment in real estate (housing mainly) led to wealth totaling $19 million. Jd.
at 8-12; Ex. 292. In September 2008, however, Stan received very bad news: he had
myclodysplastic syndrome (MDS). 6/30 Tr. 15. The disease was to take Stan’s life in July 2009,
but it did give him time to put financial affairs in order. Stan and Jennifer’s attorneys created an
estate plan. 6/30 Tr. 29-30, 44-45. The parties in this trial agreed on little else, but no one
disputed that the plan’s — and Stan’s (and Jennifer’s) — paramount priority was to ensure that the
couple’s two young children would be well cared for. Id. at 24, 29, 66, 82-84; 7/6 Tr. 10-11.
Two trusts were created: a community property trust and a separate property trust ~ the
Stanley Kwong and Jennifer Kwok Revocable Trust, and the Amendment and Restatement of the
Stan Kwong Trust. Exs. 5, 4. Upon Stan’s death, Jennifer was trustee of the former; Stan’s
sister Jeanne Kwong was trustee of the latter. /d.
After Stan’s death, his and Jennifer’s community property was divided between two sub-
trusts — a revocable survivor’s trust (by which Jennifer received her share of the community
property) and an irrevocable marital trust (by which Jennifer was to receive a life estate in Stan’s
share of the community property, which would pass to Justin and Michelle upon her death). Ex.
5 at 8-11. This avoided estate taxes, for Jennifer received what was already hers in the
survivor’ s sub-trust, and the marital sub-trust was exempt from estate taxes under the marital
deduction. See Jeanne Brf. 1:21-2:5,
The separate property trust was to fund a bypass trust “with the largest fractional part” of
Stan’s separate property that could be sheltered by the $3.5-million federal estate tax exemption.
Ex. 4 §4.2.1.2. The bypass trust’s “primary beneficiaries” were to be Stan and Jennifer’s twoyoung children, Justin and Michelle, Jd. at §5.1; 6/30 Tr. 82-83. Secondary beneficiaries were
Jeanne and four young-adult nieces.” Ex. 4 §5.1°
After Stan’s death, rancor boiled up between Jennifer and her in-laws. A week after
Stan’s funeral, his mother removed Stan and Jennifer’s children as beneficiaries from her will.
6/30 Tr. 103. A $1-million life insurance policy that Jennifer thought listed her as beneficiary
actually listed Stan’s mother. Jd. at 92-98, Stan’s family (Jeanne included) began to make
claims against his estate eventually totaling $7 million ~ claims Jennifer says the in-laws never
discussed with Stan while he lived to dispute them. /d. at 99-103; see also 7/6 Tr. 77-78.
Jennifer thus worried that Jeanne, as trustee, would mistreat Justin and Michelle in distributions
from the bypass trust. 7
Jennifer responded by relying on a provision of the community property trust to disclaim
part of what she was to receive in the marital property sub-trust, making that part ineligible to
pass free of estate tax. Ex. 1; Ex. 5 §5.9; Ex. 9. This disclaimed amount would flow to
generation-skipping trusts for Justin and Michelle (also sub-trusts of the community property
trust). See Ex. 5 §9.1; Ex, 9. The disclaimer was of “a pecuniary amount” based on a formula
? The four nieces are Amy and Sara Kwong (Jeanne’s children) and Kimberly and Krista Gon, No niece was a
petitioner or respondent in this trial; the nieces’ briefs say they are interested parties. An attorney for Amy and
Sara appeared early on, but absented himself from most of the trial, examining just one of the 13 witnesses. This
statement of decision focuses on the parties’ briefs. However, it also addresses arguments by Amy and Sara,
which largely replicate those of their mother, Jeanne, who Is a secondary beneficiary of the bypass trust just as the
nieces are.
Post-trial briefs are cited as follows: “Respondent Jeanne Kwong’s Closing Brief” is “Jeanne Brf.;” “Opening Post-
Trial Brief” is “Niece Brf.;” “Petitioner Jennifer Shuk-Han Kwok‘s Closing Post-Trial Brief” is “Jen. CB;’ “Respondent
Jeanne Kwong’s Rebuttal Closing Brief” is “Jeanne CB;” “Closing Post-Trial Brie?” is “Niece CB” and “Request for
Statement of Decision” is “Niece Rqst.” All emphasis in this decision has been added.
* Jeanne’s summary of evidence omits “primary beneficiaries,” and reports this trust’s beneficiaries as “Stan’s
sister, nieces, and children,” putting the primary beneficiaries in last place. Jeanne Brf. 2:12, 2:16.
Jennifer and Jeanne clearly do not like each other, and the rancor had simmered even before Stan‘s death.
Jennifer says she and Stan found e-mails by Jeanne calling her “the B-word” (bitch), “useless” and “lazy,” as well as
criticizing Stan and Jennifer's son Justin (Jeanne did not dispute authorship of the e-mails). 6/30 Tr. 31-41. Jeanne
suggests that Jennifer largely abandoned Stan during his illness (which Jennifer disputes) and that Jeanne instead
cared for him. See, e.g., 7/2 Tr, 81-83; 7/6 Tr. 18-19,that would calculate to as much as $2.2 million. Ex. 1, Ex. 2 at 1. To segregate assets to fund
the pecuniary amount, a chart listed four San Francisco properties (all single-family dwellings)
and bank accounts associated with those properties. Ex. 2; 6/30 Tr. 112, 142°
According to Jennifer, because the disclaimer exhausted the $3.5-million estate tax
exemption, the bypass trust was itself bypassed and assets removed from Jeanne’s control. Id. at
108; Ex. 9, Jennifer says she acted to protect Justin and Michelle from Jeanne and the other in-
laws, trying to ensure the children would benefit from what their father left them as “primary
beneficiaries.” 6/30 Tr. 106-11; Ex. 4 §5.1.° In turn, Jeanne says she and the four nieces are
deprived of money Stan left them.
Jennifer, as trustee of the community property trust, requested Jeanne, as trustee of the
separate property trust, to distribute assets from the latter to the former. 5/14/10 Petition at 6.
Jeanne refused, and Jennifer petitioned to compel distribution. Id. Five years later, the matter
came to trial.”
CONCLUSIONS OF LAW
This trial presented one issue: was Jennifer’s disclaimer valid, and thus should
distribution of the separate property trust’s assets be ordered?
The Trust Documents. Jeanne begins with a 20-page divination of “Stan’s intent” from
dendritic details extracted out of trust documents. Jeanne Brf. 10:6-30:9. Probate law provides
some support for such an exercise, but it can be taken to illogical extremes -- as it is here. Jeanne
5 As addressed below, Jeanne uses the chart’s title— “Disclaimed Assets” —to argue that the properties and bank
accounts, and not the pecuniary amount, were what was disclaimed. However, the title was simply shorthand
indicating how the pecuniary amount was to be funded. See Ex. 2; Jen. CB p. 9 n.4.
® Jeanne has no relationship with Michelle or Justin — Michelle does not remember ever seeing Jeanne, and Justin
has not seen her since 2009, when he was three years old. 6/30 Tr. 23.
” The courts were not blameless in this delay. See 6/30 Tr. 124-25.
® Jeanne admits having no authority for her contention that Jennifer “has the burden of proving a disclaimer.”
Jeanne Brf. . And, as Jennifer notes, a disclaimer is presumed valid when made. Jen. CB 3:16-17, citing Prob,
Code §§265, 280. in any event, burden-allocation matters not, as Jennifer both produced and persuaded at trial.
4makes this point herself, when she shows that the trust documents’ drafter did not recall ever
discussing the disclaimer provision with Stan. Jeanne Brf. 24:17-25:13. No doubt the same was
true of the other trust provisions — certainly Jeanne’s 90 pages of post-trial briefing cite to no
attomey discussing any particular provision with Stan?
This is understandable, The trust documents are chockfull of legal jargon, boilerplate
mainly, and Stan was no lawyer, much less a trusts lawyer. 6/30 Tr. 49. To derive “Stan’s
intent” from the arcanity of sophisticated trust instruments is, frankly, a work of fiction.'°
The most we can hope to learn are Stan’s broad intentions, and those are knowable from
the trust documents. Stan’s paramount intention was that his young children be well cared for
after he was gone. Justin and Michelle were the sole “primary beneficiaries” of the bypass trust
(Ex. 4 §5.1) —a fact not acknowledged until page 14 of Jeanne’s brief, and then grudgingly."!
Moreover, Justin and Michelle were to receive Stan’s contribution to the marital sub-trust when
their mother, Jennifer, died. Ex. 5.
Jeanne derides extrinsic evidence of intent. Jeanne Brf. 29:7-30:9. However, she
introduced plenty of that extrinsic evidence herself and waived objections to Jennifer’s evidence
by failing to assert them at trial. In any event, the testimony was entirely consistent with the
intent the trust documents reflect: Justin and Michelle were foremost in Stan’s (and Jennifer’s)
mind when his (and Jennifer’s) estate plan was drafted. Every witness asked about it ~ both
* The closest Jeanne comes to proving such a discussion is a meandering answer by an attorney, the crux of which
was: “| can’t recall specifically.” See Jeanne CB 11:8,
* Jeanne repeatedly refers to “Stan’s intent” and “Stan’s” trust documents. However, as shown by the community
property trust’s title — the Stanley Kwong and Jennifer Kwok Revocable Trust {Ex. 5] —Jennifer’s assets and her
intent are also at issue.
“Yeanne Brf. 14:19, Jeanne also asserts that “Stan wanted” her, not Jennifer, to “decide how Stan’s separate
property was distributed.” /d. at 14:3-4. However, Jeanne cites to nothing in the trial transcript, and Jennifer’s
uncontroverted testimony was that she declined to be a co-trustee of the separate property trust with Jeanne,
after being called “the B-word” (bitch), “useless” and “lazy” by her. 6/30 Tr. 31-41.
5sides — testified that Stan loved his children deeply and wanted them well cared for: that was
Stan’s intent. See, e.g., 6/30 Tr. 20, 66-67; 7/6 Tr. 10-11, 36-37.
The Disclaimer. Jeanne ends with eight arguments against Jennifer’s disclaimer,”
First, Jeanne says the disclaimer was “not ‘irrevocable and unqualified.”” Jeanne Brf.
30:11. However, Jennifer’s notarized disclaimer declared not once, but twice, that she was
acting “irrevocably, and without qualification.” Ex. 1. Jennifer confirmed the same again under
oath at trial. 6/30 Tr. 126-27.
Jeanne proceeds with extended exegesis of the disclaimer, but ignores the crucial words:
“{rrevocably and without qualification.” See Jeanne Brf. 30:10-35:10; Ex. 1. Jeanne makes two
related arguments: that the “amount disclaimed is conditioned on this Court retroactively taking
away Stan’s exemption” and that a disclaimer of a pecuniary amount using a formula that could
yield a number as low as zero is invalid. Jeanne Brf. 34:8-9, 31:8-9.
In ruling for Jennifer, this Court is not “retroactively taking away Stan’s exemption,” but
rather recognizing that Jennifer’s disclaimer has always been a valid qualified disclaimer. See id.
at 34:8-9. Every layer of Jeanne’s argument is premised on this misconception of hers. See, e.g.,
id, at 31:9 (“until a court decides that Stan’s exemption”), 32:5 (“until the Court gives retroactive
effect to the disclaimer”), 33:3-4 (“the amount disclaimed is $0 until a court gives retroactive
effect to the disclaimer”), 34:8-9 (“amount disclaimed is conditioned on this Court taking away
Stan’s exception”).
Because this Court is not “giving retroactive effect,” Jennifer did not disclaim “$0” as
Jeanne asserts, See id. at 33:3-4, 34:8-9, 31:8-9; Ex. 2 p. 1. Moreover, a disclaimer of a
pecuniary amount using a formula is valid. Federal regulations expressly so provide, and
The Court refers to “Jeanne” because she is the party-trustee. However, lawyers clearly created her arguments.
Jeanne herself has limited understanding of the at-issue trusts, and what she thinks she knows is largely wrong.
See, e.g., 7/2 Tr. 69-75. This is not to disrespect Jeanne; she was cast in a role she was not equipped to play.
6Jeanne’s expert witness so testified. 26 CFR §25.2518-3(c-d); 7/6 Tr. 171. Indeed, Jeanne’s
expert testified that Jennifer’s disclaimer was “a valid qualified disclaimer.” Jd.’*
Second, Jeanne asserts that Jennifer’s disclaimer is not “in writing.” Jeanne Brf. 35:13.
This head-scratcher of an argument relapses into the notion that a disclaimer of a pecuniary
amount using a formula is invalid. See id. at 35:24. As just shown, the argument is at war with
the federal government and Jeanne’s own expert. See 26 CFR §25,2518-3(c-d); 7/6 Tr. 171.
Third, in another prolix presentation, Jeanne argues that Jennifer “accepted the assets that
[she] purports to have disclaimed.” Jeanne Brf. 36:9. All 23 pages of this argument are again
founded on a false premise: that the four San Francisco properties and their associated bank
accounts were what Jennifer disclaimed.'* They were not. The properties and accounts are
nowhere mentioned in Jennifer’s disclaimer; rather, “a pecuniary amount” was disclaimed. Ex 1.
The houses and accounts were assets segregated to fund the disclaimed pecuniary amount. 6/30
Tr. 115-16.'5 While Jeanne lengthily disputes this point, her daughters concisely confirm it,
stating that Jennifer “disclaimed an amount, not particular assets.” Niece CB 3:12.
What was Jennifer to do? Her husband had recently died. She was now running the
family business on her own. Her sister-in-law was refusing to acknowledge her disclaimer,
casting it into legal limbo. See, e.g., 6/30 Tr. 112-13, 126-27. How were the four properties and
accounts to be addressed on tax returns, loan applications and the like? Jeanne’s gotcha
scenarios — such as they are ~ resulted from her own litigation conduct.
» This is true of both the “substance” and “form” of Jennifer’s disclaimer. See Niece Rast. 5:21-6:16; Niece Brf.
3:18-5:17.
* See, e.g., Jeanne Brf. 37:15-17, 38:9, 38:19, 39:22, 40:8, 44:3, 41:14, 41:16, 41:24-25, 42:4, 42:25, 44:1, 44:9-10,
44:14, 46:6, 47:22-23, 48:3, 48:13, 48:20, 49:15, 49:21, 50:14, 51:13, 54:21.
» A helpful exercise is to posit devastation of the four properties by earthquake or fire on the night they were
listed on the chart. Clearly, modification of segregated assets would be required, because a pecuniary amount was
disclaimed, not specific properties. Fanciful? See 1906, 1989.
7Fourth, it is argued that “the disclaimer is ineffective for” Jennifer’s “failure to comply
with 26 C.F.R. §25,2518-3(a)(2).” Jeanne Brf. 60:2-3, Not a model of clarity, this regulation
addresses disclaimers of “income derived from specific property.” Disclaimers of a pecuniary
amount are addressed later in the regulations, and that is what Jennifer disclaimed. 26 CFR
§25.2518-3(c-d); Ex. 1. As already noted, properties were segregated to fund that amount and
Jeanne’s actions then threw the disclaimer into five years of legal limbo.
Jeanne quotes from Jennifer’s trial testimony, but it actually favors Jennifer. See Jeanne
Brf. 60:23-61:3. Jeanne’s attorney insisted: “You decided on April 1st, 2010, to disclaim 630
16th Avenue [one of the four properties], didn’t you?” Jd. Though not a native English speaker,
Jennifer was not deceived: “I don’t know if J disclaimed the properties, but I segregated the
properties, you know, on April 1st. I decided to segregate the properties and all I know was that
I disclaimed the certain amounts on these funding agreement.” Id.; 7/7 Tr. 143-44, 150.
Correct. Jennifer disclaimed a pecuniary amount and segregated the four properties. Jeanne also
argues that an “asset is not segregated in lieu of disclaiming it,” but no one says it is. See Jeanne
Brf. 61:5-6.
Fifth, Jeanne relies on two inapposite court opinions — one 94 years old, the other 50.
Jeanne Brf. 63:22-66:17, citing In re Arms Estate (1921) 186 Cal. 554; In re Nicely Estate (1965)
235 Cal.App.2nd 174. Both cases construed former law. See Jen. CB 14:16; Jeanne Brf. 64:8-9.
Both featured attempts to rely on intestacy law, irrelevant here. id. at 64:7, 65:4. Neitherregarded beneficiaries at the same level of a trust. Moreover, as Jennifer shows, Jeanne misreads
the cases. Jen. CB 14:6-19.1
Sixth, without any citation to the trial record, Jeanne says that under a relation back
theory, “any person may refuse to accept a provision for him in a will so long as the rights of
third party are not involved, and of course a widower may do so.” Jeanne Brf. 66:22-25, quoting
Inre Estate of Patmore (1956) 141 Cal.App.2d 416, 421-22, As Jennifer is a widow, who may
“of course” “refuse to accept a provision,” this again favors Jennifer, not Jeanne. See id.
Seventh, Jeanne notes that “if all beneficiaries of an irrevocable trust consent, they may
compel...termination of the trust upon petition to the court.” Jeanne Brf. 67:24-68:1, quoting
Prob. Code §15403(a). No one disagrees, but the statute does not say this is the only way to
terminate a trust.
Eighth, and again without citation to the trial record, Jeanne asserts that “specific gifts”
were made to “Stan’s sister, nieces, and children” (note once again Jeanne’s placement of Justin
and Michelle) and thus “rules for abatement apply.” Jeanne Brf. 68:14-69:17. While the
separate property trust made Justin and Michelle “primary beneficiaries,” specific gifts were not
made to them, or to Jeanne or the nieces. See Ex. 4 §5.1,17
Finally, the nieces make another argument: that Jennifer disclaimed “to serve her own
interests.” Niece Brf. 8:19; see also Niece Rqst. 11:5-12:1 1.'8 As shown, Jennifer acted in the
interests of Stan’s children, as was Stan’s intent.
*5 The same is true of the nieces; Nicely is the only California authority they cite on the notion that Jennifer's
disclaimer “does not change the amount that Kwok takes from the Marital Trust.” Niece Brf. 6:5-7:12; see also
Niece Rqst. 6:17-7:2. The nieces’ argument that the disclaimer is “invalid under the statutory definition” is based
on this same notion. See id. at 7:22-9:19. As shown above, the experts for both sides reviewed the statutes and
testified that Jennifer's disclaimer was valid.
*’ The nieces also falsely suggest that specific gifts were made to them. Niece Rast. 7:6-21, 13:13-27.
- Responding, Jennifer says “it is undisputed that the Separate Trust has a $5.5 million judgment against it.” Jen.
CB 15:14-15. If this moots the reams of briefing and evidence generated in our trial, the Court would have
appreciated knowing so long before now. Shadow-boxing is not an appropriate use of the legal process.
9RESOLUTION
Jennifer Kwok’s petition and prayer for relief are GRANTED. Jeanne Kwong, as trustee
of the Amended and Restated Stan Kwong Trust, is ordered to (1) distribute immediately all
assets of that trust to petitioner Jennifer Kwok, as trustee of the marital trust established under
the Stanley Kwong and Jennifer Kwok Revocable Trust dated April 6, 2009 and (2) provide an
accounting regarding the Amended and Restated Stan Kwong Trust to Kwok within 60 days. As
prevailing party in this matter, Kwok may seek her costs by noticed motion.
Dated: October 26, 2015
Md Bote f.
Richard B. Ulmer’ Jr.
Judge of the Superior Court
* after this Court Issued its tentative statement of decision on August 13, 2015, Jeanne and the nieces filed yet
another 41 pages of briefing, Much of this argues tertiary details. However, Code of Civil Procedure §632 provides
that a court’s statement of decision is to explain the “factual and legal basis for its decision as to each of the
principal controverted issues at trial.” That is what this statement does.
10FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
San Frangisco, California 94105,
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PROOF OF SERVICE
Jennifer Shuk-Han Kwok, v. Jeanne Kwong Case No,; PES-10-293505
I am employed in the City and County of San Francisco, State of California. | am over the
age of eighteen and not a party to the within action; my business address is 150 Spear Street,
Suite 1800, San Francisco, California 94105.
On April 15, 2017, I served the foregoing document described as follows:
REQUEST FOR JUDICIAL NOTICE OF STATEMENT OF DECISION
by placing a true and correct copy thereof enclosed in a sealed envelope addressed to the party(ies) of
record whose name(s) and address(es) appear below
Phil Foster : ot Edward S. Zusman , Esq.
Tour-Sarkissian Law Offices Markun Zusman & Compton LLP
211 Gough Street, 3° Fl. 465 California Street, Suite 500
San Francisco, CA 94102 San Francisco, CA 94104
Email: phil@tslo.com Email: ezusman@mzclaw.com
Phone: 415-626-7744 Tele.: (415) 438-4515
Farsi 1>-o20 162 Fax.: (415) 434-4505
Richard M, Bryan
Bryan Hinshaw
425 California Street, #300
San Francisco, CA 94104
Fax,: 415-296-0812
BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully
repaid to be placed in the United States mail at San Francisco, California, for collection and
mailing to the office of addressee(s) on the date shown herein following ordinary business
practice.
HAND-DELIVERY/Personal/Messenger - CCP § 1011] I caused such envelope to be
hand-delivered by a courier, who personally delivered such envelope to the office of the
addressee(s) on the date herein.
BY FACSIMILE - CCP § 1013(e)] - I caused such document(s) to be transmitted via
X_ [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of
the parties to accept service by e-mail or electronic transmission, I caused the documents to
be sent to the persons at the email addresses listed ab I did not receive within a
reasonable time after the smission, any electronic message or other indication that the
transmission was unsucces
_X_ [STATE] I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
Executed on April 15, 2017, at San Francisco, California
Denise Sub
“Denise Lamb
{00263482}
PROOF OF SERVICE
Preview
FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 wow ow wy ww ww w = SanFrangisco,CalifomiaM4105 oo ~ n wn > we Nn — So XO oo a an an > we N _ Co Daniel T. Bernhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 Telephone: (415) 541-0200 Facsimile: (415) 495-4332 Email: bernhard@freelandlaw.com Attorneys for Petitioner Jennifer Shuk-Han Kwok ELECTRONICALLY FILED Superior Court of California, County of San Francisco 04/17/2017 Clerk of the Court BY:CARLOS MURILLO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO PROBATE IN RE: STAN KWONG IRREVOCABLE TRUST IT {00263482} 1 CASE NO.: PES-10-293505 REQUEST FOR JUDICIAL NOTICE OF STATEMENT OF DECISION TRIAL DATE: April 17, 2017 TIME: 9:30 a.m. LOCATION: Dept. 206 Judge: not set REQUEST FOR JUDICIAL NOTICE OF STATEMENT OF DECISIONFREELAND COOPER & FOREMAN LLP 150 Spear Street, § San Francisco, Cal na oo a Doe Ss 82 21 Pursuant to Section 452(d) of the Evidence Code, Petitioner Jennifer Shuk-Han Kwok respectfully requests that the Court take Judicial Notice of the Statement of Decision filed on October 26, 2015 in the Superior Court of the State of California, in and for the County of San Francisco, Case No. Pes-09-293019. Dated: April 15, 2017 FREELAND COOPER & FOREMAN LLP T. BERNHARD — Attorfieys for Petitioner Jennifer Shuk-Han Kwok (00263482) 2 MENT OF DECISION REQUEST FOR JUDICIAL NOT]IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO San Francisco Gounty Superior Court PROBATE OCT 2.62015 CLERK OF THE COURT . A, Case No. PES-09-293019 BY: a IN RE: STANLEY CHONG KWONG, } ) Deceased. ) STATEMENT OF DECISION 2 JENNIFER SHUK-HAN KWOK, as Trustee of The Marital Trust under the Stanley Kwong and Jennifer Kwok Revocable Trust dated April 6, 2009, Petitioner, Vv. JEANNE KWONG, as Trustee of the Stanley Kwong Trust dated July 10, 1998, as amended. and restated April 6, 2009, Respondent. ee This court trial regarded a petition to compel distribution of assets from one trust to another. The petition is GRANTED. FINDINGS OF FACT Stanley Kwong founded California Financial Mortgage Corporation in the Inner Richmond district of San Francisco. 6/30 Tr. 18, 47. Jennifer Kwok worked closely in the office with Stan! for 23 years. Jd, at 6-7. After dating for 15 years, Stan and Jennifer married in 1998 and then had two children: Justin and Michelle. Jd. at 6-7, 14-15. * Because many people in this case have the same or similar surnames, they are often referred to by their first names. No disrespect is intended.Astute investment in real estate (housing mainly) led to wealth totaling $19 million. Jd. at 8-12; Ex. 292. In September 2008, however, Stan received very bad news: he had myclodysplastic syndrome (MDS). 6/30 Tr. 15. The disease was to take Stan’s life in July 2009, but it did give him time to put financial affairs in order. Stan and Jennifer’s attorneys created an estate plan. 6/30 Tr. 29-30, 44-45. The parties in this trial agreed on little else, but no one disputed that the plan’s — and Stan’s (and Jennifer’s) — paramount priority was to ensure that the couple’s two young children would be well cared for. Id. at 24, 29, 66, 82-84; 7/6 Tr. 10-11. Two trusts were created: a community property trust and a separate property trust ~ the Stanley Kwong and Jennifer Kwok Revocable Trust, and the Amendment and Restatement of the Stan Kwong Trust. Exs. 5, 4. Upon Stan’s death, Jennifer was trustee of the former; Stan’s sister Jeanne Kwong was trustee of the latter. /d. After Stan’s death, his and Jennifer’s community property was divided between two sub- trusts — a revocable survivor’s trust (by which Jennifer received her share of the community property) and an irrevocable marital trust (by which Jennifer was to receive a life estate in Stan’s share of the community property, which would pass to Justin and Michelle upon her death). Ex. 5 at 8-11. This avoided estate taxes, for Jennifer received what was already hers in the survivor’ s sub-trust, and the marital sub-trust was exempt from estate taxes under the marital deduction. See Jeanne Brf. 1:21-2:5, The separate property trust was to fund a bypass trust “with the largest fractional part” of Stan’s separate property that could be sheltered by the $3.5-million federal estate tax exemption. Ex. 4 §4.2.1.2. The bypass trust’s “primary beneficiaries” were to be Stan and Jennifer’s twoyoung children, Justin and Michelle, Jd. at §5.1; 6/30 Tr. 82-83. Secondary beneficiaries were Jeanne and four young-adult nieces.” Ex. 4 §5.1° After Stan’s death, rancor boiled up between Jennifer and her in-laws. A week after Stan’s funeral, his mother removed Stan and Jennifer’s children as beneficiaries from her will. 6/30 Tr. 103. A $1-million life insurance policy that Jennifer thought listed her as beneficiary actually listed Stan’s mother. Jd. at 92-98, Stan’s family (Jeanne included) began to make claims against his estate eventually totaling $7 million ~ claims Jennifer says the in-laws never discussed with Stan while he lived to dispute them. /d. at 99-103; see also 7/6 Tr. 77-78. Jennifer thus worried that Jeanne, as trustee, would mistreat Justin and Michelle in distributions from the bypass trust. 7 Jennifer responded by relying on a provision of the community property trust to disclaim part of what she was to receive in the marital property sub-trust, making that part ineligible to pass free of estate tax. Ex. 1; Ex. 5 §5.9; Ex. 9. This disclaimed amount would flow to generation-skipping trusts for Justin and Michelle (also sub-trusts of the community property trust). See Ex. 5 §9.1; Ex, 9. The disclaimer was of “a pecuniary amount” based on a formula ? The four nieces are Amy and Sara Kwong (Jeanne’s children) and Kimberly and Krista Gon, No niece was a petitioner or respondent in this trial; the nieces’ briefs say they are interested parties. An attorney for Amy and Sara appeared early on, but absented himself from most of the trial, examining just one of the 13 witnesses. This statement of decision focuses on the parties’ briefs. However, it also addresses arguments by Amy and Sara, which largely replicate those of their mother, Jeanne, who Is a secondary beneficiary of the bypass trust just as the nieces are. Post-trial briefs are cited as follows: “Respondent Jeanne Kwong’s Closing Brief” is “Jeanne Brf.;” “Opening Post- Trial Brief” is “Niece Brf.;” “Petitioner Jennifer Shuk-Han Kwok‘s Closing Post-Trial Brief” is “Jen. CB;’ “Respondent Jeanne Kwong’s Rebuttal Closing Brief” is “Jeanne CB;” “Closing Post-Trial Brie?” is “Niece CB” and “Request for Statement of Decision” is “Niece Rqst.” All emphasis in this decision has been added. * Jeanne’s summary of evidence omits “primary beneficiaries,” and reports this trust’s beneficiaries as “Stan’s sister, nieces, and children,” putting the primary beneficiaries in last place. Jeanne Brf. 2:12, 2:16. Jennifer and Jeanne clearly do not like each other, and the rancor had simmered even before Stan‘s death. Jennifer says she and Stan found e-mails by Jeanne calling her “the B-word” (bitch), “useless” and “lazy,” as well as criticizing Stan and Jennifer's son Justin (Jeanne did not dispute authorship of the e-mails). 6/30 Tr. 31-41. Jeanne suggests that Jennifer largely abandoned Stan during his illness (which Jennifer disputes) and that Jeanne instead cared for him. See, e.g., 7/2 Tr, 81-83; 7/6 Tr. 18-19,that would calculate to as much as $2.2 million. Ex. 1, Ex. 2 at 1. To segregate assets to fund the pecuniary amount, a chart listed four San Francisco properties (all single-family dwellings) and bank accounts associated with those properties. Ex. 2; 6/30 Tr. 112, 142° According to Jennifer, because the disclaimer exhausted the $3.5-million estate tax exemption, the bypass trust was itself bypassed and assets removed from Jeanne’s control. Id. at 108; Ex. 9, Jennifer says she acted to protect Justin and Michelle from Jeanne and the other in- laws, trying to ensure the children would benefit from what their father left them as “primary beneficiaries.” 6/30 Tr. 106-11; Ex. 4 §5.1.° In turn, Jeanne says she and the four nieces are deprived of money Stan left them. Jennifer, as trustee of the community property trust, requested Jeanne, as trustee of the separate property trust, to distribute assets from the latter to the former. 5/14/10 Petition at 6. Jeanne refused, and Jennifer petitioned to compel distribution. Id. Five years later, the matter came to trial.” CONCLUSIONS OF LAW This trial presented one issue: was Jennifer’s disclaimer valid, and thus should distribution of the separate property trust’s assets be ordered? The Trust Documents. Jeanne begins with a 20-page divination of “Stan’s intent” from dendritic details extracted out of trust documents. Jeanne Brf. 10:6-30:9. Probate law provides some support for such an exercise, but it can be taken to illogical extremes -- as it is here. Jeanne 5 As addressed below, Jeanne uses the chart’s title— “Disclaimed Assets” —to argue that the properties and bank accounts, and not the pecuniary amount, were what was disclaimed. However, the title was simply shorthand indicating how the pecuniary amount was to be funded. See Ex. 2; Jen. CB p. 9 n.4. ® Jeanne has no relationship with Michelle or Justin — Michelle does not remember ever seeing Jeanne, and Justin has not seen her since 2009, when he was three years old. 6/30 Tr. 23. ” The courts were not blameless in this delay. See 6/30 Tr. 124-25. ® Jeanne admits having no authority for her contention that Jennifer “has the burden of proving a disclaimer.” Jeanne Brf. . And, as Jennifer notes, a disclaimer is presumed valid when made. Jen. CB 3:16-17, citing Prob, Code §§265, 280. in any event, burden-allocation matters not, as Jennifer both produced and persuaded at trial. 4makes this point herself, when she shows that the trust documents’ drafter did not recall ever discussing the disclaimer provision with Stan. Jeanne Brf. 24:17-25:13. No doubt the same was true of the other trust provisions — certainly Jeanne’s 90 pages of post-trial briefing cite to no attomey discussing any particular provision with Stan? This is understandable, The trust documents are chockfull of legal jargon, boilerplate mainly, and Stan was no lawyer, much less a trusts lawyer. 6/30 Tr. 49. To derive “Stan’s intent” from the arcanity of sophisticated trust instruments is, frankly, a work of fiction.'° The most we can hope to learn are Stan’s broad intentions, and those are knowable from the trust documents. Stan’s paramount intention was that his young children be well cared for after he was gone. Justin and Michelle were the sole “primary beneficiaries” of the bypass trust (Ex. 4 §5.1) —a fact not acknowledged until page 14 of Jeanne’s brief, and then grudgingly."! Moreover, Justin and Michelle were to receive Stan’s contribution to the marital sub-trust when their mother, Jennifer, died. Ex. 5. Jeanne derides extrinsic evidence of intent. Jeanne Brf. 29:7-30:9. However, she introduced plenty of that extrinsic evidence herself and waived objections to Jennifer’s evidence by failing to assert them at trial. In any event, the testimony was entirely consistent with the intent the trust documents reflect: Justin and Michelle were foremost in Stan’s (and Jennifer’s) mind when his (and Jennifer’s) estate plan was drafted. Every witness asked about it ~ both * The closest Jeanne comes to proving such a discussion is a meandering answer by an attorney, the crux of which was: “| can’t recall specifically.” See Jeanne CB 11:8, * Jeanne repeatedly refers to “Stan’s intent” and “Stan’s” trust documents. However, as shown by the community property trust’s title — the Stanley Kwong and Jennifer Kwok Revocable Trust {Ex. 5] —Jennifer’s assets and her intent are also at issue. “Yeanne Brf. 14:19, Jeanne also asserts that “Stan wanted” her, not Jennifer, to “decide how Stan’s separate property was distributed.” /d. at 14:3-4. However, Jeanne cites to nothing in the trial transcript, and Jennifer’s uncontroverted testimony was that she declined to be a co-trustee of the separate property trust with Jeanne, after being called “the B-word” (bitch), “useless” and “lazy” by her. 6/30 Tr. 31-41. 5sides — testified that Stan loved his children deeply and wanted them well cared for: that was Stan’s intent. See, e.g., 6/30 Tr. 20, 66-67; 7/6 Tr. 10-11, 36-37. The Disclaimer. Jeanne ends with eight arguments against Jennifer’s disclaimer,” First, Jeanne says the disclaimer was “not ‘irrevocable and unqualified.”” Jeanne Brf. 30:11. However, Jennifer’s notarized disclaimer declared not once, but twice, that she was acting “irrevocably, and without qualification.” Ex. 1. Jennifer confirmed the same again under oath at trial. 6/30 Tr. 126-27. Jeanne proceeds with extended exegesis of the disclaimer, but ignores the crucial words: “{rrevocably and without qualification.” See Jeanne Brf. 30:10-35:10; Ex. 1. Jeanne makes two related arguments: that the “amount disclaimed is conditioned on this Court retroactively taking away Stan’s exemption” and that a disclaimer of a pecuniary amount using a formula that could yield a number as low as zero is invalid. Jeanne Brf. 34:8-9, 31:8-9. In ruling for Jennifer, this Court is not “retroactively taking away Stan’s exemption,” but rather recognizing that Jennifer’s disclaimer has always been a valid qualified disclaimer. See id. at 34:8-9. Every layer of Jeanne’s argument is premised on this misconception of hers. See, e.g., id, at 31:9 (“until a court decides that Stan’s exemption”), 32:5 (“until the Court gives retroactive effect to the disclaimer”), 33:3-4 (“the amount disclaimed is $0 until a court gives retroactive effect to the disclaimer”), 34:8-9 (“amount disclaimed is conditioned on this Court taking away Stan’s exception”). Because this Court is not “giving retroactive effect,” Jennifer did not disclaim “$0” as Jeanne asserts, See id. at 33:3-4, 34:8-9, 31:8-9; Ex. 2 p. 1. Moreover, a disclaimer of a pecuniary amount using a formula is valid. Federal regulations expressly so provide, and The Court refers to “Jeanne” because she is the party-trustee. However, lawyers clearly created her arguments. Jeanne herself has limited understanding of the at-issue trusts, and what she thinks she knows is largely wrong. See, e.g., 7/2 Tr. 69-75. This is not to disrespect Jeanne; she was cast in a role she was not equipped to play. 6Jeanne’s expert witness so testified. 26 CFR §25.2518-3(c-d); 7/6 Tr. 171. Indeed, Jeanne’s expert testified that Jennifer’s disclaimer was “a valid qualified disclaimer.” Jd.’* Second, Jeanne asserts that Jennifer’s disclaimer is not “in writing.” Jeanne Brf. 35:13. This head-scratcher of an argument relapses into the notion that a disclaimer of a pecuniary amount using a formula is invalid. See id. at 35:24. As just shown, the argument is at war with the federal government and Jeanne’s own expert. See 26 CFR §25,2518-3(c-d); 7/6 Tr. 171. Third, in another prolix presentation, Jeanne argues that Jennifer “accepted the assets that [she] purports to have disclaimed.” Jeanne Brf. 36:9. All 23 pages of this argument are again founded on a false premise: that the four San Francisco properties and their associated bank accounts were what Jennifer disclaimed.'* They were not. The properties and accounts are nowhere mentioned in Jennifer’s disclaimer; rather, “a pecuniary amount” was disclaimed. Ex 1. The houses and accounts were assets segregated to fund the disclaimed pecuniary amount. 6/30 Tr. 115-16.'5 While Jeanne lengthily disputes this point, her daughters concisely confirm it, stating that Jennifer “disclaimed an amount, not particular assets.” Niece CB 3:12. What was Jennifer to do? Her husband had recently died. She was now running the family business on her own. Her sister-in-law was refusing to acknowledge her disclaimer, casting it into legal limbo. See, e.g., 6/30 Tr. 112-13, 126-27. How were the four properties and accounts to be addressed on tax returns, loan applications and the like? Jeanne’s gotcha scenarios — such as they are ~ resulted from her own litigation conduct. » This is true of both the “substance” and “form” of Jennifer’s disclaimer. See Niece Rast. 5:21-6:16; Niece Brf. 3:18-5:17. * See, e.g., Jeanne Brf. 37:15-17, 38:9, 38:19, 39:22, 40:8, 44:3, 41:14, 41:16, 41:24-25, 42:4, 42:25, 44:1, 44:9-10, 44:14, 46:6, 47:22-23, 48:3, 48:13, 48:20, 49:15, 49:21, 50:14, 51:13, 54:21. » A helpful exercise is to posit devastation of the four properties by earthquake or fire on the night they were listed on the chart. Clearly, modification of segregated assets would be required, because a pecuniary amount was disclaimed, not specific properties. Fanciful? See 1906, 1989. 7Fourth, it is argued that “the disclaimer is ineffective for” Jennifer’s “failure to comply with 26 C.F.R. §25,2518-3(a)(2).” Jeanne Brf. 60:2-3, Not a model of clarity, this regulation addresses disclaimers of “income derived from specific property.” Disclaimers of a pecuniary amount are addressed later in the regulations, and that is what Jennifer disclaimed. 26 CFR §25.2518-3(c-d); Ex. 1. As already noted, properties were segregated to fund that amount and Jeanne’s actions then threw the disclaimer into five years of legal limbo. Jeanne quotes from Jennifer’s trial testimony, but it actually favors Jennifer. See Jeanne Brf. 60:23-61:3. Jeanne’s attorney insisted: “You decided on April 1st, 2010, to disclaim 630 16th Avenue [one of the four properties], didn’t you?” Jd. Though not a native English speaker, Jennifer was not deceived: “I don’t know if J disclaimed the properties, but I segregated the properties, you know, on April 1st. I decided to segregate the properties and all I know was that I disclaimed the certain amounts on these funding agreement.” Id.; 7/7 Tr. 143-44, 150. Correct. Jennifer disclaimed a pecuniary amount and segregated the four properties. Jeanne also argues that an “asset is not segregated in lieu of disclaiming it,” but no one says it is. See Jeanne Brf. 61:5-6. Fifth, Jeanne relies on two inapposite court opinions — one 94 years old, the other 50. Jeanne Brf. 63:22-66:17, citing In re Arms Estate (1921) 186 Cal. 554; In re Nicely Estate (1965) 235 Cal.App.2nd 174. Both cases construed former law. See Jen. CB 14:16; Jeanne Brf. 64:8-9. Both featured attempts to rely on intestacy law, irrelevant here. id. at 64:7, 65:4. Neitherregarded beneficiaries at the same level of a trust. Moreover, as Jennifer shows, Jeanne misreads the cases. Jen. CB 14:6-19.1 Sixth, without any citation to the trial record, Jeanne says that under a relation back theory, “any person may refuse to accept a provision for him in a will so long as the rights of third party are not involved, and of course a widower may do so.” Jeanne Brf. 66:22-25, quoting Inre Estate of Patmore (1956) 141 Cal.App.2d 416, 421-22, As Jennifer is a widow, who may “of course” “refuse to accept a provision,” this again favors Jennifer, not Jeanne. See id. Seventh, Jeanne notes that “if all beneficiaries of an irrevocable trust consent, they may compel...termination of the trust upon petition to the court.” Jeanne Brf. 67:24-68:1, quoting Prob. Code §15403(a). No one disagrees, but the statute does not say this is the only way to terminate a trust. Eighth, and again without citation to the trial record, Jeanne asserts that “specific gifts” were made to “Stan’s sister, nieces, and children” (note once again Jeanne’s placement of Justin and Michelle) and thus “rules for abatement apply.” Jeanne Brf. 68:14-69:17. While the separate property trust made Justin and Michelle “primary beneficiaries,” specific gifts were not made to them, or to Jeanne or the nieces. See Ex. 4 §5.1,17 Finally, the nieces make another argument: that Jennifer disclaimed “to serve her own interests.” Niece Brf. 8:19; see also Niece Rqst. 11:5-12:1 1.'8 As shown, Jennifer acted in the interests of Stan’s children, as was Stan’s intent. *5 The same is true of the nieces; Nicely is the only California authority they cite on the notion that Jennifer's disclaimer “does not change the amount that Kwok takes from the Marital Trust.” Niece Brf. 6:5-7:12; see also Niece Rqst. 6:17-7:2. The nieces’ argument that the disclaimer is “invalid under the statutory definition” is based on this same notion. See id. at 7:22-9:19. As shown above, the experts for both sides reviewed the statutes and testified that Jennifer's disclaimer was valid. *’ The nieces also falsely suggest that specific gifts were made to them. Niece Rast. 7:6-21, 13:13-27. - Responding, Jennifer says “it is undisputed that the Separate Trust has a $5.5 million judgment against it.” Jen. CB 15:14-15. If this moots the reams of briefing and evidence generated in our trial, the Court would have appreciated knowing so long before now. Shadow-boxing is not an appropriate use of the legal process. 9RESOLUTION Jennifer Kwok’s petition and prayer for relief are GRANTED. Jeanne Kwong, as trustee of the Amended and Restated Stan Kwong Trust, is ordered to (1) distribute immediately all assets of that trust to petitioner Jennifer Kwok, as trustee of the marital trust established under the Stanley Kwong and Jennifer Kwok Revocable Trust dated April 6, 2009 and (2) provide an accounting regarding the Amended and Restated Stan Kwong Trust to Kwok within 60 days. As prevailing party in this matter, Kwok may seek her costs by noticed motion. Dated: October 26, 2015 Md Bote f. Richard B. Ulmer’ Jr. Judge of the Superior Court * after this Court Issued its tentative statement of decision on August 13, 2015, Jeanne and the nieces filed yet another 41 pages of briefing, Much of this argues tertiary details. However, Code of Civil Procedure §632 provides that a court’s statement of decision is to explain the “factual and legal basis for its decision as to each of the principal controverted issues at trial.” That is what this statement does. 10FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Frangisco, California 94105, an NR Aa BR oon PROOF OF SERVICE Jennifer Shuk-Han Kwok, v. Jeanne Kwong Case No,; PES-10-293505 I am employed in the City and County of San Francisco, State of California. | am over the age of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800, San Francisco, California 94105. On April 15, 2017, I served the foregoing document described as follows: REQUEST FOR JUDICIAL NOTICE OF STATEMENT OF DECISION by placing a true and correct copy thereof enclosed in a sealed envelope addressed to the party(ies) of record whose name(s) and address(es) appear below Phil Foster : ot Edward S. Zusman , Esq. Tour-Sarkissian Law Offices Markun Zusman & Compton LLP 211 Gough Street, 3° Fl. 465 California Street, Suite 500 San Francisco, CA 94102 San Francisco, CA 94104 Email: phil@tslo.com Email: ezusman@mzclaw.com Phone: 415-626-7744 Tele.: (415) 438-4515 Farsi 1>-o20 162 Fax.: (415) 434-4505 Richard M, Bryan Bryan Hinshaw 425 California Street, #300 San Francisco, CA 94104 Fax,: 415-296-0812 BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully repaid to be placed in the United States mail at San Francisco, California, for collection and mailing to the office of addressee(s) on the date shown herein following ordinary business practice. HAND-DELIVERY/Personal/Messenger - CCP § 1011] I caused such envelope to be hand-delivered by a courier, who personally delivered such envelope to the office of the addressee(s) on the date herein. BY FACSIMILE - CCP § 1013(e)] - I caused such document(s) to be transmitted via X_ [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed ab I did not receive within a reasonable time after the smission, any electronic message or other indication that the transmission was unsucces _X_ [STATE] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 15, 2017, at San Francisco, California Denise Sub “Denise Lamb {00263482} PROOF OF SERVICE