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DANIEL A. CONRAD (076110)
ELISABETH J. HANOWSKY (252478)
Law Offices of Daniel A. Conrad
1550 Bryant Street, Suite 760
San Francisco, CA 94103
Tel: (415) 359-0900
Fax: (415) 359-0073
Email: dconrad@danielaconrad.com
Attorneys for THOMAS LUCAS, Trustee
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
04/03/2018
Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
CHRISTINE A. BENNETT, No. CGC-18-564938
Plaintiff,
DECLARATION OF DANIEL A.
v. CONRAD IN SUPPORT OF
DEMURRER
THOMAS LUCAS, and Does 1 to 40,
inclusive
Defendants.
|, Daniel A. Conrad, declare:
1. lam one of the attorneys of record for Thomas Lucas, Trustee of the
Spinale Family Living Trust. | am licensed to practice in all of the courts of the State of
California. | make this Declaration of my own personal knowledge and could
competently testify to the facts in this Declaration.
W
DEMURRER - DECLARATION2. Attached to this Declaration as Exhibit A is a copy of the Seventh
Amendment to the Spinale Family Living Trust (see also Exhibit D to Request for Judicial
Notice). A copy of this Amendment is attached to the Verified Complaint for Damages
Aw ON
filed by Christine Bennett. This additional copy is included for ease of reference.
5 ; 3. The Seventh Amendment to the Spinale Family Living Trust has no power
of appointment. It provides only for the funding for a Special Needs Trust for the benefit
of Caro! Ann Spinale.
4. The Order Granting Petition Pursuant to Probate Code §850 (Exhibit C to
Request for Judicial Notice) states that the Seventh Amendment controls the distribution
of the Spinale Family Living Trust and that Carol Ann Spinale has no ownership or
lender’s interest in trust real property.
5. The San Francisco County Probate Court has ordered Thomas Lucas to
sell property located at 625 Avalon Street, San Francisco, and confirmed the sale of that
property (Exhibits B and E to Request for Judicial Notice) .
16 | declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and that this declaration was executed on April 3, 2018 at
17 San Francisco, California.
DANIEL A. CONRAD
DEMURRER - DECLARATION -2-SEVENTH AMENDMENT TO THE SPINALE FAMILY
Me LIVING TRUST
Preamble. CONSTANTINO J. SPINALE and RINA SPINALE are the Trustors of the
SPINALE-FAMILY LIVING TRUST DATED NOVEMBER 20, 1990 which has been
previously amended on Six (6) occasions; to wit, August 6, 1992, April 3, 1993, April 10, 1995,
July 11, 1997, February 7, 2000 and October 24, 2003 (hereinafter collectively referred to as the
“Trust”). The Sixth Amendment dated October 24, 2003 amended the Trust in its entirety and is
the controlling Declaration of Trust. CONSTANTINO J. SPINALE and RINA SPINALE are.
the duly appointed and acting Co-Trustees of the Trust (hereinafter referred to as the “Trustee”).
Article 1 of the Trust provides that the Trustors, while alive, have the absolute right to
amend or revoke the Trust, in whole or in part, at any time.
The Trustors now wishes to exercise their right of amendment and, to that-end, do hereby
amend that Declaration in the terms stated below. The Trustee hereby consent to the terms of
this amendment.
The Trustor’s son JOSEPH MICHAEL SPINALE died on May 20, 2007, leaving one (1)
child surviving; to wit, GINA KATHERINE SPINALE, born July 8,.1989.
Article II-Trustees is amended as follows:
Upon the death, resignation, or disability CONSTANTINBJ. SPINALE and RINA
SPINALE, as Trustee, the following named persons, alternately in the order named, shall actas
Successor Trustee: RICHARD JOSEPH SPINALE, GINA KATHERINE SPINALE.
Article I1I-Beneficiaries is amended as follows:Article III. Paragraph 6, Upon the death of the Surviving Trustor, the Successor
Trustee shall administer, hold and distribute the balance of the Trust Estate for the benefit of the
Trustor’s daughter CAROL ANN SPINALE, subject to.the provisions of the “Special Needs
Trust” as set out in the Fifth Amendment dated February 7, 2000, which is ratified, affirmed and
made a part hereof as if set out in whole herein.
The “Special. Needs ‘Trust” shall terminate upon the death of CAROL ANN
SPINALE, at which time the Trustee shall pay over and deliver the property subject to the Trust
(including all income then accrued bit uncollected:and all net income then remaining in the
hands of the Trustee), outright and free of Trust, in equal shares, to GINA KATHERINE
SPINALE and RICHARD JOSEPH SPINALE, or to the survivor of them.
Article IV- Trustee’s Powers, is amended to add the following:
18. Public Benefits: The Trustee is authorized to apply for, maximize and
maintain any and all public benefits to which the Settlor may be entitled or may
become entitled to- because of the Trustee’s actions, including but not limited to
Veteran's benefits, Social Secutity, Medicare, and Medi-Cal, particularly in the
event that major expenses rélating to the Settlor’s incapacity are foreseeable. This
authorization includes, but is not necessarily limited to, the following:
A. Modifying or revoking in whole or in part this
Declaration of Trust to effect a transfer of Trustor’s
residence to the non-incapacitated Trustor or to other
transferees then permissible under applicable state or
federal law;
B. Making gifts of trust property to beneficiaries listed
herein, so long.as such gifts do not result in the Trustor’s
ineligibility for public benefits.
C. Declaring this Trust irrevocable or creating an
irrevocable trust to contain the Trustor’s assets, so long as
the Trustor’s plans for the distribution of their respective
estates remain unchanged;
D. Dividing the Trust Estate into separate property of the
spouses in a manner permissible under applicable state and
federal law;
E. Changing the characterization of trust property f from
community property to separate property;F. Making transfers of community property from the
incapacitated Grantor to the non-incapacitated Grantor, as
that person’s separate property;
G. Seeking court or other enforceable orders for spousal
support to prevent impoverishment of the non-incapacitated
spouse; and/or
H. Taking any other action necessary to maximize the
Trustor’s eligibility for public benefits. The Trustee is
further directed to take all legal steps necessary to defend
the Grantors’ or the Grantors’ agents actions under the
section, including retaining attorneys and other
professionals and paying for the services of such attorneys and
other professionals out of Trust property.
19. Trustee's Power to Make Gifts at Direction of Settlor. During the settlor's
lifetime, the trustee shall distribute such sums of trust principal to such person or persons who
are the natural objects of the settlor's bounty, as the settlor may direct in writing, including to the
trustee. In the event that the settlor is unable to direct the trustee in writing under this section
due to incapacity, such direction may be made on the settlor's behalf by a duly authorized
attorney in fact acting under a valid durable power of attorney executed by the settlor under the
Uniform Durable Power of Attorney Act (or successor statute).
20. Power to Self-Deal. The trustee, acting as an individual or as a trustee of
another trust not created by this trust instrument, shall have the. power to perform the following
acts with respect to the property of any trust under this trust instrument: purchase property from
or sell property to the trust at fair market value, exchange property for trust property of equal
value; lease property from or to the trust at fair rental value; lend or advance funds to the trust,
with interest at then-prevailing rates, and receive security for the loans in any commercially
reasonable form; and receive from any business in which the trust has an interest a reasonable
salary and reimbursement of expenses while performing duties as a trustee, The trustee, acting
as trustee of another trust established by the settlors or another trust established for the benefit ofe e
any one or more of the beneficiaries of the trust, shall have the power to borrow funds from the
trust with interest at then-prevailing rates, and give security for the loans in any commercially
reasonable form.
Article V. is amended to add the following:
33. Definition of Incapacity. When in the process of determining a Grantor’s,
Settlor’s or Trustee’s incapacity, all individually identifiable health information and medical
‘records, medical and character information, any individually identifiable financial information,
nonpublic personal information and nonpublic personal financial information, without
restriction, limitation or condition, may be releaséd to the person who is nominated as Trustee or
Successor Trustee, to include any written opinion relating to the Grantor’s,-Settlor’s or Trustee's
incapacity, that the person so nominated may have requested. This release authority applies to
any information governed by the Health Insurance Portability and Accountability Act of 1996
(aka HIPAA), 42 USC 1320d and 45 CFR 160-164, The Gramm-Leach-Bliley Act (aka GLBA)
and the Insurance Information and Privacy Protection Act (PPA), CIC Sec. 791-791.27 & State
Regulations CCR 2689.1-2689.24, and applies even if that:person has not yet been appointed
Successor Trustee.
The Trustee shall have the power, authority and right to obtain ‘all individually
identifiable financial information, any nonpublic personal information, nonpublic personal
financial information and all individually identifiable health and character information, without
exception, limitation or condition. This release authority ‘applies to any information governed by
the Health Insurance Portability and Accountability Act of 1996 (aka HIPAA), 42 USC 1320d
and 45 CFR 160-164, The Gramm-Leach-Bliley Act (aka GLBA) and the Insurance Information
and Privacy Protection Act (aka IIPPA), CIC Sec. 791-791.27, CCR 2689.1-2689.24.Ratification of Other Terms of Trust. In every other respect, the settlor confirms and
ratifies the terms of the trust as stated in that certain declaration dated November 20, 1990 and all.
subsequent amendments..
Executedon_ OGY 226570, at
Sap EX Avais bo , California.
TRUSTORS:
CONSTANTINO J. SI
RINA SPINALE
TRUSTEE: 4
Cog
CONSTANTINO J.@P E
RINA SPINALEACKNOWLEDGMENT
State of California )
) ss
counyor NAGS
On en 2.2607] __ before me,
Coasy R. NQBASUYs notary public in and for the State of California,
personally appeared Gases SB. & NA Spine personally
Imown to me (or proved to me on the basis of satisfactory evidence) to be the persons whdse
names are subscribed to the within instrument and’acknowledged to me that they executed the
same in their authorized capacities, and that by their signatures on the instrument, the persons, or
the entities upon behalf of which the persons acted, executed the instrument.
WITNEJ§ my hand and official seal.
Signature a
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DANIEL A. CONRAD (076110) ELISABETH J. HANOWSKY (252478) Law Offices of Daniel A. Conrad 1550 Bryant Street, Suite 760 San Francisco, CA 94103 Tel: (415) 359-0900 Fax: (415) 359-0073 Email: dconrad@danielaconrad.com Attorneys for THOMAS LUCAS, Trustee ELECTRONICALLY FILED Superior Court of California, County of San Francisco 04/03/2018 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO CHRISTINE A. BENNETT, No. CGC-18-564938 Plaintiff, DECLARATION OF DANIEL A. v. CONRAD IN SUPPORT OF DEMURRER THOMAS LUCAS, and Does 1 to 40, inclusive Defendants. |, Daniel A. Conrad, declare: 1. lam one of the attorneys of record for Thomas Lucas, Trustee of the Spinale Family Living Trust. | am licensed to practice in all of the courts of the State of California. | make this Declaration of my own personal knowledge and could competently testify to the facts in this Declaration. W DEMURRER - DECLARATION2. Attached to this Declaration as Exhibit A is a copy of the Seventh Amendment to the Spinale Family Living Trust (see also Exhibit D to Request for Judicial Notice). A copy of this Amendment is attached to the Verified Complaint for Damages Aw ON filed by Christine Bennett. This additional copy is included for ease of reference. 5 ; 3. The Seventh Amendment to the Spinale Family Living Trust has no power of appointment. It provides only for the funding for a Special Needs Trust for the benefit of Caro! Ann Spinale. 4. The Order Granting Petition Pursuant to Probate Code §850 (Exhibit C to Request for Judicial Notice) states that the Seventh Amendment controls the distribution of the Spinale Family Living Trust and that Carol Ann Spinale has no ownership or lender’s interest in trust real property. 5. The San Francisco County Probate Court has ordered Thomas Lucas to sell property located at 625 Avalon Street, San Francisco, and confirmed the sale of that property (Exhibits B and E to Request for Judicial Notice) . 16 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on April 3, 2018 at 17 San Francisco, California. DANIEL A. CONRAD DEMURRER - DECLARATION -2-SEVENTH AMENDMENT TO THE SPINALE FAMILY Me LIVING TRUST Preamble. CONSTANTINO J. SPINALE and RINA SPINALE are the Trustors of the SPINALE-FAMILY LIVING TRUST DATED NOVEMBER 20, 1990 which has been previously amended on Six (6) occasions; to wit, August 6, 1992, April 3, 1993, April 10, 1995, July 11, 1997, February 7, 2000 and October 24, 2003 (hereinafter collectively referred to as the “Trust”). The Sixth Amendment dated October 24, 2003 amended the Trust in its entirety and is the controlling Declaration of Trust. CONSTANTINO J. SPINALE and RINA SPINALE are. the duly appointed and acting Co-Trustees of the Trust (hereinafter referred to as the “Trustee”). Article 1 of the Trust provides that the Trustors, while alive, have the absolute right to amend or revoke the Trust, in whole or in part, at any time. The Trustors now wishes to exercise their right of amendment and, to that-end, do hereby amend that Declaration in the terms stated below. The Trustee hereby consent to the terms of this amendment. The Trustor’s son JOSEPH MICHAEL SPINALE died on May 20, 2007, leaving one (1) child surviving; to wit, GINA KATHERINE SPINALE, born July 8,.1989. Article II-Trustees is amended as follows: Upon the death, resignation, or disability CONSTANTINBJ. SPINALE and RINA SPINALE, as Trustee, the following named persons, alternately in the order named, shall actas Successor Trustee: RICHARD JOSEPH SPINALE, GINA KATHERINE SPINALE. Article I1I-Beneficiaries is amended as follows:Article III. Paragraph 6, Upon the death of the Surviving Trustor, the Successor Trustee shall administer, hold and distribute the balance of the Trust Estate for the benefit of the Trustor’s daughter CAROL ANN SPINALE, subject to.the provisions of the “Special Needs Trust” as set out in the Fifth Amendment dated February 7, 2000, which is ratified, affirmed and made a part hereof as if set out in whole herein. The “Special. Needs ‘Trust” shall terminate upon the death of CAROL ANN SPINALE, at which time the Trustee shall pay over and deliver the property subject to the Trust (including all income then accrued bit uncollected:and all net income then remaining in the hands of the Trustee), outright and free of Trust, in equal shares, to GINA KATHERINE SPINALE and RICHARD JOSEPH SPINALE, or to the survivor of them. Article IV- Trustee’s Powers, is amended to add the following: 18. Public Benefits: The Trustee is authorized to apply for, maximize and maintain any and all public benefits to which the Settlor may be entitled or may become entitled to- because of the Trustee’s actions, including but not limited to Veteran's benefits, Social Secutity, Medicare, and Medi-Cal, particularly in the event that major expenses rélating to the Settlor’s incapacity are foreseeable. This authorization includes, but is not necessarily limited to, the following: A. Modifying or revoking in whole or in part this Declaration of Trust to effect a transfer of Trustor’s residence to the non-incapacitated Trustor or to other transferees then permissible under applicable state or federal law; B. Making gifts of trust property to beneficiaries listed herein, so long.as such gifts do not result in the Trustor’s ineligibility for public benefits. C. Declaring this Trust irrevocable or creating an irrevocable trust to contain the Trustor’s assets, so long as the Trustor’s plans for the distribution of their respective estates remain unchanged; D. Dividing the Trust Estate into separate property of the spouses in a manner permissible under applicable state and federal law; E. Changing the characterization of trust property f from community property to separate property;F. Making transfers of community property from the incapacitated Grantor to the non-incapacitated Grantor, as that person’s separate property; G. Seeking court or other enforceable orders for spousal support to prevent impoverishment of the non-incapacitated spouse; and/or H. Taking any other action necessary to maximize the Trustor’s eligibility for public benefits. The Trustee is further directed to take all legal steps necessary to defend the Grantors’ or the Grantors’ agents actions under the section, including retaining attorneys and other professionals and paying for the services of such attorneys and other professionals out of Trust property. 19. Trustee's Power to Make Gifts at Direction of Settlor. During the settlor's lifetime, the trustee shall distribute such sums of trust principal to such person or persons who are the natural objects of the settlor's bounty, as the settlor may direct in writing, including to the trustee. In the event that the settlor is unable to direct the trustee in writing under this section due to incapacity, such direction may be made on the settlor's behalf by a duly authorized attorney in fact acting under a valid durable power of attorney executed by the settlor under the Uniform Durable Power of Attorney Act (or successor statute). 20. Power to Self-Deal. The trustee, acting as an individual or as a trustee of another trust not created by this trust instrument, shall have the. power to perform the following acts with respect to the property of any trust under this trust instrument: purchase property from or sell property to the trust at fair market value, exchange property for trust property of equal value; lease property from or to the trust at fair rental value; lend or advance funds to the trust, with interest at then-prevailing rates, and receive security for the loans in any commercially reasonable form; and receive from any business in which the trust has an interest a reasonable salary and reimbursement of expenses while performing duties as a trustee, The trustee, acting as trustee of another trust established by the settlors or another trust established for the benefit ofe e any one or more of the beneficiaries of the trust, shall have the power to borrow funds from the trust with interest at then-prevailing rates, and give security for the loans in any commercially reasonable form. Article V. is amended to add the following: 33. Definition of Incapacity. When in the process of determining a Grantor’s, Settlor’s or Trustee’s incapacity, all individually identifiable health information and medical ‘records, medical and character information, any individually identifiable financial information, nonpublic personal information and nonpublic personal financial information, without restriction, limitation or condition, may be releaséd to the person who is nominated as Trustee or Successor Trustee, to include any written opinion relating to the Grantor’s,-Settlor’s or Trustee's incapacity, that the person so nominated may have requested. This release authority applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (aka HIPAA), 42 USC 1320d and 45 CFR 160-164, The Gramm-Leach-Bliley Act (aka GLBA) and the Insurance Information and Privacy Protection Act (PPA), CIC Sec. 791-791.27 & State Regulations CCR 2689.1-2689.24, and applies even if that:person has not yet been appointed Successor Trustee. The Trustee shall have the power, authority and right to obtain ‘all individually identifiable financial information, any nonpublic personal information, nonpublic personal financial information and all individually identifiable health and character information, without exception, limitation or condition. This release authority ‘applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (aka HIPAA), 42 USC 1320d and 45 CFR 160-164, The Gramm-Leach-Bliley Act (aka GLBA) and the Insurance Information and Privacy Protection Act (aka IIPPA), CIC Sec. 791-791.27, CCR 2689.1-2689.24.Ratification of Other Terms of Trust. In every other respect, the settlor confirms and ratifies the terms of the trust as stated in that certain declaration dated November 20, 1990 and all. subsequent amendments.. Executedon_ OGY 226570, at Sap EX Avais bo , California. TRUSTORS: CONSTANTINO J. SI RINA SPINALE TRUSTEE: 4 Cog CONSTANTINO J.@P E RINA SPINALEACKNOWLEDGMENT State of California ) ) ss counyor NAGS On en 2.2607] __ before me, Coasy R. NQBASUYs notary public in and for the State of California, personally appeared Gases SB. & NA Spine personally Imown to me (or proved to me on the basis of satisfactory evidence) to be the persons whdse names are subscribed to the within instrument and’acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument, the persons, or the entities upon behalf of which the persons acted, executed the instrument. WITNEJ§ my hand and official seal. Signature a