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1 John S. Rueppel (SBN: 267467)
Ann K. Kavanagh (SBN: 260526)
2 Angie Lam (SBN: 244719)
JOHNSTON, KINNEY & ZULAICA LLP
3 101 Montgomery Street, Suite 1600
San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
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7 Attorneys for Plaintiff,
Lisa Keith
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN THE COUNTY OF NAPA
11 LISA KEITH, CASE NO: 22CV001269
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Plaintiff, PLAINTIFF LISA KEITH’S REQUEST
13 FOR JUDICIAL NOTICE IN SUPPORT OF
v. OPPOSITION TO DEFENDANTS’
14 MOTION FOR SUMMARY JUDGMENT
CELESTE WHITE, an individual, ROBERT OR, IN THE ALTERNATIVE, SUMMARY
15 WHITE, an individual, the VALLEY ROCK ADJUDICATION OF DEFENDANTS
FOUNDATION, aka THE BAR 49 VALLEY ROCK FOUNDATION, DR.
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FOUNDATION, a charitable organization, and ROBERT WHITE, AND CELESTE WHITE
17 DOES 1-50, INCLUSIVE, AS TO PLAINTIFF LISA KEITH’S FIRST
AMENDED COMPLAINT
18 Defendants.
19 Date: March 1, 2024
Time: 8:30 a.m.
20
Judge: Hon. Scott R.L. Young
21 Dept.: B
Complaint Filed: October 25, 2022
22 FAC Filed: March 8, 2023
Trial Date: April 2, 2024
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24 Pursuant to Evidence Code § 450 et seq., as well as Rules of Court 3.113(m) and 3.1306(c),
25 responding party, Plaintiff, Lisa Keith (“Lisa”), hereby requests that this Court take judicial notice of
26 the file in this action and specifically: Exhibit 1 to Exhibit 5 hereto in support of Lisa’s Opposition to
27 Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Defendants
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
1 Valley Rock Foundation, Dr. Robert White, and Celeste White as to Plaintiff Lisa Keith’s First Amended
2 Complaint (“MSJ”.) The attached exhibits are true and correct copies of pleadings filed by Lisa and
3 Defendants in this action, as well as the records of courts of this State.
4 I. LEGAL STANDARD: JUDICIAL NOTICE
5 1. Evidence Code § 452(d) states that judicial notice may be taken of “[r]ecords of any court
6 of this state…” In addition, § 453 of the Evidence Code states that the Court must take judicial notice of
7 matters under § 452 if a party requests it and the party has (a) provided sufficient notice to each adverse
8 party through the pleadings or otherwise to enable such adverse to prepare to meet the request; and (b)
9 furnished the Court with sufficient information to enable it to take judicial notice of the matters
10 requested. (Evid. Code, §453.) Lisa seeks judicial notice of the facts that Defendants filed the attached
11 Motion, not for the “truth” of the matters stated herein.
12 II. THE COURT SHOULD TAKE JUDICIAL NOTICE OF:
13 2. Request for Judicial Notice (“RJN”) #1: Petition for Approval of Agreement and
14 Approval and Settlement of Accountings, filed by Celeste White, on or about June 1, 2020, a true and
15 correct copy of which is attached hereto as Exhibit 1.
16 3. Request for Judicial Notice (“RJN”) #2: Order Granting Petition for Approval of
17 Agreement and Approval and Settlement of Accountings, filed by the Court, on or about August 20,
18 2020, a true and correct copy of which is attached hereto as Exhibit 2.
19 4. Request for Judicial Notice (“RJN”) #3: Order on Request for Trustee to File Verified
20 Accounting, filed by the Court, on or about March 29, 2019, a true and correct copy of which is attached
21 hereto as Exhibit 3.
22 5. Request for Judicial Notice (“RJN”) #4: Declaration of Celeste White In Support of
23 Defendant’s Motion for Summary Judgment etc., filed by Celeste White on or about December 14, 2023,
24 a true and correct copy of which is attached hereto as Exhibit 4.
25 6. Request for Judicial Notice (“RJN”) #5: Declaration of Celeste White in Support of
26 Defendant’s Special Anti-Slapp Motion to Strike Plaintiff’s Complaint, filed by Celeste White on or
27 about January 4, 2023, a true and correct copy of which is attached hereto as Exhibit 5.
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
1 7. Judicial notice is required because such items requested constitute “The decisional,
2 constitutional, and public statutory law of this state,” (Evid. Code, § 451(a).) and “[R]ecords of (1) any
3 court of this state.” (Evid. Code, § 452(d).)
4 8. For the foregoing reasons, Lisa respectfully requests that the Court take judicial notice of
5 Exhibit 1 to Exhibit 5 in connection with the MSJ.
6 Respectfully submitted,
7 JOHNSTON, KINNEY & ZULAICA LLP
8
9 Dated: February 23, 2024 By:
John S. Rueppel, Esq.
10 Angie Lam, Esq.
11 Attorneys for Plaintiff, Lisa Keith
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PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION
Exhibit 1
Lisa Keith v. Celeste White, et al.
Napa County Superior Court
Case No. 22CV001269
Plaintiff Lisa Keith’s Request for Judicial Notice in Support
of Opposition to Defendants’ Motion for Summary
Judgment or, in the Alternative, Summary Adjudication of
Defendants Valley Rock Foundation, Dr. Robert White, and
Celeste White as to Plaintiff Lisa Keith’s First Amended
Complaint
26-36111
Napa - Probate and Mental Health
SHARTSIS FRIESE LLP
JOHN J. STEIN (Bar #253777) FILED
ROEY Z. RAHMIL (Bar #273803) June 1, 2020
One Maritime Plaza, Eighteenth Floor Clerk of the Napa Superior Court
San Francisco, CA 94111-3598 By: Kelly Rose, Deputy
Telephone: (415) 421-6500
Facsimile: — (415) 421-2922
Email: jstein@sflaw.com
Email: rrahmil@sflaw.com
Attorneys for Respondent Celeste White
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF NAPA
In Re Complete Amendment and Restated Case No. 26-36111
Edward A. Keith Declaration of Trust, executed
August 16, 2002, as amended February 10, PETITION FOR APPROVAL OF
2006 AGREEMENT AND APPROVAL AND
SETTLEMENT OF ACCOUNTINGS
SAN FRANCISCO, CA 94111-3598
SHARTSIS FRIESE LLP
August 5, 2020
ONE MARITIME PLAZA
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Date:
Time 8:30 a.m.
Dept.:g
Cass No. PETITION FOR APPROVAL OF AGREEMENT AND
26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS
Respondent Celeste White (“Celeste”) hereby submits this verified Petition for the
following relief relating to the Complete Amendment and Restated Edward A. Keith Declaration
of Trust executed August 16, 2002, as amended February 10, 2006 (the “Trust”):
(1) Approval of the Settlement Agreement by and between Celeste and Robert White,
on the one hand, and Petitioner Lisa Keith (“Lisa”), Darlene A. Keith (“Darlene”), David S. Keith
(“David”), Roxanne Keith (“Roxanne”), Richard B. Keith (“Richard”), and the Valley Rock
Foundation (the “Foundation”), on the other hand (the “Agreement”), a true and correct copy of
which is attached hereto as Exhibit A; and
(2) Settlement and approval of the verified Accountings filed by Petitioner on J uly 31,
2019, a true and correct copy of which filing is attached hereto as Exhibit B, and confirmation
and approval of all actions and transactions of Celeste during her term as a co-trustee of the Trust.
Celeste alleges as follows:
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L INTRODUCTION
1. After almost four years of litigation and more than three days of mediation, the
parties have resolved their differences. The Agreement reached by the parties is contingent on
the Court issuing certain orders. Specifically, the Agreement will become effective if, and only
if, the Court approves the Agreement, approves and settles Trust accountings previously filed by
Celeste, and confirms and approves Celeste’s actions during her term as co-trustee of the T rust, as
reflected in the Accounting.
20 2. The purpose of the Petition is to request that the Court issue the orders necessary
to allow the Agreement to become effective and bring to a conclusion this liti gation (as well as
resolve various other actual and potential disputes among the parties to the Agreement). Celeste
expects this Petition to be unopposed.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Trust
3. On September 16, 1998, Edward A. Keith (“Ed”) created the Trust. It was
amended and restated in its entirety on August 16, 2002 by an instrument entitled “Complete
Amendment and Restated Declaration of Trust,” a true and correct copy of which is attached
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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hereto as Exhibit C. The Trust was further amended on February 10, 2006 by an instrument
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entitled “First Amendment to Complete Amendment and Restated Declaration of Trust,” a true
and correct copy of which is attached hereto as Exhibit D. The Trust would ultimately hold
essentially all of Ed’s wealth.
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A, Ed named himself the initial trustee of the Trust, a position he occupied until his
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death. Initially, the successor co-trustees of the Trust were to be elected by a majority vote of
a)
Celeste, Lisa, David, Darlene, and Rick (collectively, the “Children” and each, a “Child. Ed
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later amended the Trust to nominate Celeste and Rick as successor co-trustees. Lisa, David, and
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Darlene--in that order--were nominated as successors to Celeste and Rick should one or both be
unable or unwilling to serve.
5. The Trust provided that, during Ed’s lifetime, “{t]he trustee shall pay to [Ed] or for
{Ed’s] benefit as much of the annual net income of the trust as [Ed] shall from time to time
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request.” Ex. C § 1.1. Any undistributed income was to be added to the principal of the Trust.
EKGHTEENTH FLOOR
Id. In addition, the trustee of the Trust had “the power, in the trustee’s discretion, to use and
apply such part or all of the principal of the trust as is necessary for [Ed’s] care, support,
maintenance and welfare.” Jd. § 1.2.
6. Broadly speaking, the Trust called for the following distributions upon Ed’s death:
a) Ed’s personal property in equal shares to the Children;
b) A gift of $30,000 to a friend of Ed;
c) A gift of $1 million in assets to each Child;
d) Funding of an Education Trust with the lesser of $3.5 million and the
available federal generation-skipping tax exemption;
¢) Distribution to the Children of Ed’s winery and the property upon which it
was located, known by various names but referred to herein as the “Ranch;” and
f) Half of the residue of the Trust to Ed’s Children, and the other half to the
Edward A. Keith Foundation, the current successor to which is the Valley Rock Foundation {the
“Foundation”’). See id. §§ 2.6(a)-(b). |
7. The Trust directed that (1) all taxes due by reason of Ed’s death, (2) last ilfness and
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
26-3611] APPROVAL AND SETTLEMENT OF ACCOUNTINGS
funeral expenses, (3) various debts of Ed, and (4) expenses of the administration of Ed’s estate
were to be charged to the Children’s share of the residue, Jd. § 8.1.
8. Ed died on September 15, 2006 at nearly 93~years-old, and his estate was valued at
$92,564,415 as of that date, most of which was attributable to extensive direct and indirect real
estate holdings. As contemplated by the Trust, Celeste and Rick became co-trustees of the Trust
upon Ed’s death, though Celeste ultimately did the vast majority of the work in administering the
Trust. As co-trustee, Celeste, among other things, (1) managed the preparation and filing of Ed’s
Form 706, (2) oversaw the liquidation of the Trust’s eight-figure real estate portfolio, (3) directed
the management of those properties prior to their sale (including being the ultimate decision
maker with regard to leases, evictions, maintenance issues, and emergencies), (4) ran various
litigations involving the Trust (including a commission dispute, an employment claim brought by
a former employee, a commercial unlawful detainer action against a tenant of a Trust property,
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and a petition before the probate court to marshal assets of the Trust), and (5) shepherded the
EIGHTEENTH FLOOR
Trust through a multi-year audit of Ed’s Form 706,
9, The audit of Ed’s Form 706 concluded in late 2010, approximately four years after
Ed’s death, thereby allowing the focus to turn to winding down the Trust. As part of the Trust’s
wind down, the Ranch (which all of the Children wanted to liquidate) was transferred to a newly-
formed entity, Sundown Ranch LLC, the owners of which would be the Children in equal shares
and trom which the Children would eventually succeed in selling the Ranch. Also in connection
with the Trust’s wind down, each Child executed a “Lien on Real Property” in favor of the
Foundation in the amount of $364,243.80 (these instruments are referred to hereinafter as the
“Liens’”),
10. The Trust's operations largely ceased in 2011, though a relatively small amount of
cash remained in the Trost through 2012. The last set of Trust tax returns were filed in January
2013, and the last financial activity involving the Trust occurred on January 15, 2013,
B. Lhe Litigation
li. In June 2016, Lisa initiated the instant lawsuit by filing her Petition to Compel
Trustee to Account against Celeste in this Court. Lisa’s initial pleading sought an accounting of
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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the Trust and limited related relief.
12. In early 2017, Petitioner filed her Amended Petition to Compel Trustee to Account
and to Redress Breaches of Trust (the “Amended Petition”). The Amended Petition was
significantly broader in its scope and sought relief relating to both the Trust and Foundation.
Celeste moved to strike various allegations and requests for relief regarding the governance and
operations of the Foundation on the grounds that Petitioner lacked standing to pursue those
matters. The Court granted Celeste’s motion to strike with leave to amend.
13. Petitioner filed her Second Amended Petition to Compel Trustee to Account and to
Redress Breaches of Trust (the “SAP”) on July 12, 2017. Celeste again moved to strike various
allegations and requests for relief’ regarding the governance and operations of the Foundation on
standing grounds, The Court granted Celeste’s motion in its entirety without leave to amend,
14. After the Court granted Celeste’s second motion to strike, the Attorney General for
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the State of California filed a joinder limited to the request for an accounting of the Trust.
EIGHTEENTH FLOOR
15. The parties have engaged in substantial discovery since the inception of this
litigation, including extensive document discovery, subpoenaing various third parties, and
depositions, Were this case not to be resolved, substantial additional discovery would be
required, and the trial would take several weeks.
(6. In late 2017, the Foundation filed suit in Sonoma County Superior Court against
Lisa, Rick, David, and Darlene to recover the amounts due under the Liens. That lawsuit (the
“Sonoma Proceeding”) has been stayed by agreement of the parties thereto.
Cc. The Agreement
17, After three full days of mediation before the Honorable James B. Lambden (Ret.),
the parties reached an agreement in principle resolving their disputes. The written agreement was
thereafter heavily negotiated, such discussions including counsel for various of the parties
convening for a fourth session before Justice Lambden to work through certain unresolved deal
terms. The process, from the initial mediation session to the execution of the Agreement,
spanned more than five months. .
18. All financial terms of the Agreement are stated in the Agreement, a copy of which
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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is attached hereto as Exhibit A. The parties to the Agreement, inter alia, maintain that it is not an
admission of liability, commit to the dismissal of this action and the Sonoma Proceeding within
seven days after the “Effective Date” (which is defined as the date on which the Court grants this
Petition), and agree to various other terms that are regularly included in agreements resolving
disputes of this nature, including broad mutual releases and non-disparagement provisions. The
parties to the Agreement also agree that the Court is to retain jurisdiction for the purposes of
enforcement pursuant to Code of Civil Procedure Section 664.6,
19. Ed died nearly fourteen years ago. The Trust’s post-death administration ceased
more than seven years ago. This case has been ongoing for nearly four years. The Sonoma
Proceeding has been pending for well over two years. The Agreement, if the orders requested
herein were to be made and that the Agreement were then to become effective, would bring such
matters to a conclusion.
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HI THE COURT SHOULD GRANT THE PETITION
Ane The Court Should Approve The Agreement
Sso TIARTSIS
20. Pursuant to Probate Code Section 17200(a), a “trustee or beneficiary of a trust may
petition the court... concerning the internal affairs of the trust.” Prob. Code § 17200(a),
ON
Approval of an agreement resolving litigation involving a trust is a matter concerning the internal
affairs of the trust. See, e.g., Union Bank of Cal. v. Braille Inst. of Am., Inc., 92 Cal. App. 4th
1324, 1327 2001 (moting that “the trustee filed a petition to approve the May 7, 2001, mediated
settlement and for instructions pursuant to Probate Code sections 1310, 15681, 15682, and
17200"), Here, the Agreement becomes binding and effective only if, inter alia, the Court
approves the Agreement,
21. The Agreement isi fair, just, reasonable, and Jawful and is in the best interests of
Trust and the beneficiaries thereof. The terms of the Agreement are a product of multiple full
days of mediation before Justice Lambden and an arms-length process that spanned several
months and involved separate counsel for (1) Robert and Celeste, (2) Lisa, (3) the Foundation,
and (4) the Attorney General’s Office. The Agreement, once effective, will bring to a conclusion
an extraordinarily expensive and complicated case that has been ongoing before this Court for
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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nearly four years, will resolve a litigation in Sonoma County that was filed more than two years
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ago, and should allow the beneficiaries of the Trust to move on from the death of Ed nearly
fourteen years ago and the Trust administration that took place thereafter.
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22. As such, the Court should find and conclude that the Agreement is fair, just,
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reasonable, and lawful and in the best interests of the Trust and its beneficiaries.
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Subject to the
remaining conditions precedent discussed below, the Agreement should therefore be approved,
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and the Court should direct and authorize the Agreement’s implementation.
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B. The Court Should Settle and
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Approve The Accounting and Celeste’s Actions
and ‘Transactions as Trustee
23. Pursuant to Probate Code Section 17200(a), a “trustee or beneficiary of a trust may
petition the court . . . concerning the internal affairs of the trust” Prob. Code §17200{a).
Proceedings concerning the internal affairs of a trust include “[s]ettling the accounts and passing
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upon the acts of the trustee, including the exercise of discretionary powers.” id. §17200(b)(5).
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24, The verified filing submitted on July 31, 2019, which is attached hereto as Exhibit
B and incorporated herein by reference in its entirety, included the following documents:
a) Accounting for the Trust covering the period of September 15, 2006 to
September 15, 2007;
b) Accounting for the Trust covering the period of September 16, 2007 to
September 15, 2008;
c) Accounting for the Trust covering the period of September 16, 2008 to
September 15, 2009;
d} Accounting for the Trust covering the period of September 16, 2009 to
September 15, 2010;
©) Accounting for the Trust covering the period of September 16, 2010 to
September 15, 2011;
f Accounting for the Trust covering the period of September 16, 2011 to
September 15, 2012; and
g) Accounting for the Trust covering the period of September 16, 2012 to
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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January 15, 2013.
OO 25. For expositional ease, the foregoing are collectively referred to hereinafter as the
“Accountings.” As with Court approval of the Agreement, (1) approval and allowance of the
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Accountings and (2) confirmation and approval of all actions and transactions of Celeste, as co-
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trustee of the Trust, as set forth in the Accountings, are conditions precedent to the Agreement
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becoming effective.
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26. A summary appears as the first page of each of the Accountings.
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27, Pursuant to Probate Code Section 1064(a)(2), Celeste notes the following in
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connection with the Accountings:
a) The Accountings extend back nearly fourteen years, and their preparation
therefore created a number of challenges. Napa Community Bank-—-one of the primary financial
institutions used to hold Trust assets—no longer exists, and Celeste has been advised that Napa
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Community Bank’s successor, RaboBank, N.A., did not maintain all pre-acquisition records.
EIGHTEENTH BLOOR
Ganze & Co., the accountancy firm employed to prepare Trust tax filings, did not maintain all of
its records for the Trust. Further, Celeste no longer has all of her records because, inter alia, she
lost various records in one of the major Napa wildfires. During her tenure as a co-trustee, Celeste
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was not the only person involved in the Trust’s administration; she engaged various professionals,
incliding multiple bookkeepers, and had a co-trustee, so she alone would not have had all the
pertinent records and does not have first-hand knowledge of every Trust transaction. Given the
size of the Trust, the passage of time, and the other circumstances surrounding this matter,
Celeste does not have a specific recollection of the details of each of the hundreds of transactions
reflected in the Accountings. In order to mitigate these issues, Celeste has relied heavily on the
records gathered in connection with this litigation and information that can be gleaned therefrom,
rather than her personal recollection.
b) The parties to this litigation have identified various unusual entries in the
Accountings, including that the credits exceed charges in the Accountings by approximately 0.3%
(meaning that the Accountings reflect more money being distributed or disbursed than being
received), significant expenditure activity on December 31 and January 1 (suggesting that the
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Case No. PETITION FOR APPROVAL OF AGREEMENT AND
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individual entering the data used in preparing the accounting was concerned with capturing the
ENO) correct amount and year for a given transaction, but not correct amount for each day or month),
certain undetermined transactions where details were not available, and adjusting entries when
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extant documentation indicated such an adjustment was appropriate (¢.g., adjustments to reflect
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fact that check register balances in Trust’s QuickBooks files was not the same as those in bank
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statements). The unusual entries in the Accountings are a product of various factors, including
the extraordinarily complicated nature of the Trust, the size of the Trust, the loss of
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documentation, the fading of memories, the multiyear span of the Accountings, and the fact that
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the Accountings were prepared many years post facto. .
c) The Agreement discussed above is intended to address such unusual entries
by resolving any actual or potential claims relating thereto, as well as other actual and potential
disputes among the signatories to the Agreement.
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Pursuant to Probate Code Section 1064(a)(3), the trustee compensation paid to
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Celeste was $1.8 million (subject to the terms of the Agreement at Section 2(A)) and to Rick was
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$200,000. The amounts paid to attorneys from the assets subject to the Accountings, as far as
me.
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Celeste is aware, are listed in the Accountings. Celeste is informed and believes that the amounts
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paid to attorneys from the assets subject to the Accountings, as reflected therein, equal the
following amounts: (a) Dickenson, Peatman & Fogarty: $885,280.00; (b) Hinman & Carmichael
LLP: $21,989.98; (c) Zeller, Hoff, & Zeller, Inc.: $8,958.76; (d) Silk, Adler & Colvin: $3,860.48;
{e) Rybicki and Blevens LLP: $2,278.00; (f) Goralka Law Firm, PC: $1,580.32; (g) Thomas
Stikker: $1,302.18; and (h) Hanson Bridgett LLP: $190.00
29. Pursuant to Probate Code Section 1064({a)(4), the Trust engaged and compensated
various members of the White/Keith family to aid in the Trust’s administration and provides the
following information:
a) The real estate firm owned by Lisa was paid $1,784,000.00 in commissions
relating to the liquidation of real estate holdings connected to the Trust.
b) In addition to his $200,000 in trustee fees, Rick received a salary from one
or more entities owned by the Trust. Celeste is informed and believes that Quarterly Wage and
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Case No. PETETION FOR APPROVAL OF AGREEMENT AND
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Withholding Reports filed with the State of California reflected $34,415.65 in compensation paid
to Rick in the third and fourth quarters of 2006 and $83,878.04 in compensation paid to Rick in
2007 and that Rick’s W-2 wage and tax statements reflected $82,115.40 in compensation in 2008,
$87,230.79 in compensation in 2009, and $16,153.85 in compensation in 2010.
Preview
1 John S. Rueppel (SBN: 267467) Ann K. Kavanagh (SBN: 260526) 2 Angie Lam (SBN: 244719) JOHNSTON, KINNEY & ZULAICA LLP 3 101 Montgomery Street, Suite 1600 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 7 Attorneys for Plaintiff, Lisa Keith 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN THE COUNTY OF NAPA 11 LISA KEITH, CASE NO: 22CV001269 12 Plaintiff, PLAINTIFF LISA KEITH’S REQUEST 13 FOR JUDICIAL NOTICE IN SUPPORT OF v. OPPOSITION TO DEFENDANTS’ 14 MOTION FOR SUMMARY JUDGMENT CELESTE WHITE, an individual, ROBERT OR, IN THE ALTERNATIVE, SUMMARY 15 WHITE, an individual, the VALLEY ROCK ADJUDICATION OF DEFENDANTS FOUNDATION, aka THE BAR 49 VALLEY ROCK FOUNDATION, DR. 16 FOUNDATION, a charitable organization, and ROBERT WHITE, AND CELESTE WHITE 17 DOES 1-50, INCLUSIVE, AS TO PLAINTIFF LISA KEITH’S FIRST AMENDED COMPLAINT 18 Defendants. 19 Date: March 1, 2024 Time: 8:30 a.m. 20 Judge: Hon. Scott R.L. Young 21 Dept.: B Complaint Filed: October 25, 2022 22 FAC Filed: March 8, 2023 Trial Date: April 2, 2024 23 24 Pursuant to Evidence Code § 450 et seq., as well as Rules of Court 3.113(m) and 3.1306(c), 25 responding party, Plaintiff, Lisa Keith (“Lisa”), hereby requests that this Court take judicial notice of 26 the file in this action and specifically: Exhibit 1 to Exhibit 5 hereto in support of Lisa’s Opposition to 27 Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Defendants 28 1 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION 1 Valley Rock Foundation, Dr. Robert White, and Celeste White as to Plaintiff Lisa Keith’s First Amended 2 Complaint (“MSJ”.) The attached exhibits are true and correct copies of pleadings filed by Lisa and 3 Defendants in this action, as well as the records of courts of this State. 4 I. LEGAL STANDARD: JUDICIAL NOTICE 5 1. Evidence Code § 452(d) states that judicial notice may be taken of “[r]ecords of any court 6 of this state…” In addition, § 453 of the Evidence Code states that the Court must take judicial notice of 7 matters under § 452 if a party requests it and the party has (a) provided sufficient notice to each adverse 8 party through the pleadings or otherwise to enable such adverse to prepare to meet the request; and (b) 9 furnished the Court with sufficient information to enable it to take judicial notice of the matters 10 requested. (Evid. Code, §453.) Lisa seeks judicial notice of the facts that Defendants filed the attached 11 Motion, not for the “truth” of the matters stated herein. 12 II. THE COURT SHOULD TAKE JUDICIAL NOTICE OF: 13 2. Request for Judicial Notice (“RJN”) #1: Petition for Approval of Agreement and 14 Approval and Settlement of Accountings, filed by Celeste White, on or about June 1, 2020, a true and 15 correct copy of which is attached hereto as Exhibit 1. 16 3. Request for Judicial Notice (“RJN”) #2: Order Granting Petition for Approval of 17 Agreement and Approval and Settlement of Accountings, filed by the Court, on or about August 20, 18 2020, a true and correct copy of which is attached hereto as Exhibit 2. 19 4. Request for Judicial Notice (“RJN”) #3: Order on Request for Trustee to File Verified 20 Accounting, filed by the Court, on or about March 29, 2019, a true and correct copy of which is attached 21 hereto as Exhibit 3. 22 5. Request for Judicial Notice (“RJN”) #4: Declaration of Celeste White In Support of 23 Defendant’s Motion for Summary Judgment etc., filed by Celeste White on or about December 14, 2023, 24 a true and correct copy of which is attached hereto as Exhibit 4. 25 6. Request for Judicial Notice (“RJN”) #5: Declaration of Celeste White in Support of 26 Defendant’s Special Anti-Slapp Motion to Strike Plaintiff’s Complaint, filed by Celeste White on or 27 about January 4, 2023, a true and correct copy of which is attached hereto as Exhibit 5. 28 2 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION 1 7. Judicial notice is required because such items requested constitute “The decisional, 2 constitutional, and public statutory law of this state,” (Evid. Code, § 451(a).) and “[R]ecords of (1) any 3 court of this state.” (Evid. Code, § 452(d).) 4 8. For the foregoing reasons, Lisa respectfully requests that the Court take judicial notice of 5 Exhibit 1 to Exhibit 5 in connection with the MSJ. 6 Respectfully submitted, 7 JOHNSTON, KINNEY & ZULAICA LLP 8 9 Dated: February 23, 2024 By: John S. Rueppel, Esq. 10 Angie Lam, Esq. 11 Attorneys for Plaintiff, Lisa Keith 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE IN OPPOSITION TO MOTION FOR SUMMARY ADJUDICATION Exhibit 1 Lisa Keith v. Celeste White, et al. Napa County Superior Court Case No. 22CV001269 Plaintiff Lisa Keith’s Request for Judicial Notice in Support of Opposition to Defendants’ Motion for Summary Judgment or, in the Alternative, Summary Adjudication of Defendants Valley Rock Foundation, Dr. Robert White, and Celeste White as to Plaintiff Lisa Keith’s First Amended Complaint 26-36111 Napa - Probate and Mental Health SHARTSIS FRIESE LLP JOHN J. STEIN (Bar #253777) FILED ROEY Z. RAHMIL (Bar #273803) June 1, 2020 One Maritime Plaza, Eighteenth Floor Clerk of the Napa Superior Court San Francisco, CA 94111-3598 By: Kelly Rose, Deputy Telephone: (415) 421-6500 Facsimile: — (415) 421-2922 Email: jstein@sflaw.com Email: rrahmil@sflaw.com Attorneys for Respondent Celeste White SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF NAPA In Re Complete Amendment and Restated Case No. 26-36111 Edward A. Keith Declaration of Trust, executed August 16, 2002, as amended February 10, PETITION FOR APPROVAL OF 2006 AGREEMENT AND APPROVAL AND SETTLEMENT OF ACCOUNTINGS SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP August 5, 2020 ONE MARITIME PLAZA EIGHTEENTH FLOOR, Date: Time 8:30 a.m. Dept.:g Cass No. PETITION FOR APPROVAL OF AGREEMENT AND 26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS Respondent Celeste White (“Celeste”) hereby submits this verified Petition for the following relief relating to the Complete Amendment and Restated Edward A. Keith Declaration of Trust executed August 16, 2002, as amended February 10, 2006 (the “Trust”): (1) Approval of the Settlement Agreement by and between Celeste and Robert White, on the one hand, and Petitioner Lisa Keith (“Lisa”), Darlene A. Keith (“Darlene”), David S. Keith (“David”), Roxanne Keith (“Roxanne”), Richard B. Keith (“Richard”), and the Valley Rock Foundation (the “Foundation”), on the other hand (the “Agreement”), a true and correct copy of which is attached hereto as Exhibit A; and (2) Settlement and approval of the verified Accountings filed by Petitioner on J uly 31, 2019, a true and correct copy of which filing is attached hereto as Exhibit B, and confirmation and approval of all actions and transactions of Celeste during her term as a co-trustee of the Trust. Celeste alleges as follows: SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ON: = MARITIME PLAZA EIGHTEENTH FLOOR L INTRODUCTION 1. After almost four years of litigation and more than three days of mediation, the parties have resolved their differences. The Agreement reached by the parties is contingent on the Court issuing certain orders. Specifically, the Agreement will become effective if, and only if, the Court approves the Agreement, approves and settles Trust accountings previously filed by Celeste, and confirms and approves Celeste’s actions during her term as co-trustee of the T rust, as reflected in the Accounting. 20 2. The purpose of the Petition is to request that the Court issue the orders necessary to allow the Agreement to become effective and bring to a conclusion this liti gation (as well as resolve various other actual and potential disputes among the parties to the Agreement). Celeste expects this Petition to be unopposed. I. FACTUAL AND PROCEDURAL BACKGROUND A. The Trust 3. On September 16, 1998, Edward A. Keith (“Ed”) created the Trust. It was amended and restated in its entirety on August 16, 2002 by an instrument entitled “Complete Amendment and Restated Declaration of Trust,” a true and correct copy of which is attached -~|- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS hereto as Exhibit C. The Trust was further amended on February 10, 2006 by an instrument Ne) os aE entitled “First Amendment to Complete Amendment and Restated Declaration of Trust,” a true and correct copy of which is attached hereto as Exhibit D. The Trust would ultimately hold essentially all of Ed’s wealth. ~ A, Ed named himself the initial trustee of the Trust, a position he occupied until his ©7 a death. Initially, the successor co-trustees of the Trust were to be elected by a majority vote of a) Celeste, Lisa, David, Darlene, and Rick (collectively, the “Children” and each, a “Child. Ed i later amended the Trust to nominate Celeste and Rick as successor co-trustees. Lisa, David, and 5 Darlene--in that order--were nominated as successors to Celeste and Rick should one or both be unable or unwilling to serve. 5. The Trust provided that, during Ed’s lifetime, “{t]he trustee shall pay to [Ed] or for {Ed’s] benefit as much of the annual net income of the trust as [Ed] shall from time to time SAN FRANCISCO, CA 94111-3598 SHARTSIS FRIESE LLP ONE MARITIME PLAZA request.” Ex. C § 1.1. Any undistributed income was to be added to the principal of the Trust. EKGHTEENTH FLOOR Id. In addition, the trustee of the Trust had “the power, in the trustee’s discretion, to use and apply such part or all of the principal of the trust as is necessary for [Ed’s] care, support, maintenance and welfare.” Jd. § 1.2. 6. Broadly speaking, the Trust called for the following distributions upon Ed’s death: a) Ed’s personal property in equal shares to the Children; b) A gift of $30,000 to a friend of Ed; c) A gift of $1 million in assets to each Child; d) Funding of an Education Trust with the lesser of $3.5 million and the available federal generation-skipping tax exemption; ¢) Distribution to the Children of Ed’s winery and the property upon which it was located, known by various names but referred to herein as the “Ranch;” and f) Half of the residue of the Trust to Ed’s Children, and the other half to the Edward A. Keith Foundation, the current successor to which is the Valley Rock Foundation {the “Foundation”’). See id. §§ 2.6(a)-(b). | 7. The Trust directed that (1) all taxes due by reason of Ed’s death, (2) last ilfness and wD Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-3611] APPROVAL AND SETTLEMENT OF ACCOUNTINGS funeral expenses, (3) various debts of Ed, and (4) expenses of the administration of Ed’s estate were to be charged to the Children’s share of the residue, Jd. § 8.1. 8. Ed died on September 15, 2006 at nearly 93~years-old, and his estate was valued at $92,564,415 as of that date, most of which was attributable to extensive direct and indirect real estate holdings. As contemplated by the Trust, Celeste and Rick became co-trustees of the Trust upon Ed’s death, though Celeste ultimately did the vast majority of the work in administering the Trust. As co-trustee, Celeste, among other things, (1) managed the preparation and filing of Ed’s Form 706, (2) oversaw the liquidation of the Trust’s eight-figure real estate portfolio, (3) directed the management of those properties prior to their sale (including being the ultimate decision maker with regard to leases, evictions, maintenance issues, and emergencies), (4) ran various litigations involving the Trust (including a commission dispute, an employment claim brought by a former employee, a commercial unlawful detainer action against a tenant of a Trust property, SAN FRANCISCO, CA 941113508 SHARTSIS FRIESE LLP ONE MARITIME PLAZA and a petition before the probate court to marshal assets of the Trust), and (5) shepherded the EIGHTEENTH FLOOR Trust through a multi-year audit of Ed’s Form 706, 9, The audit of Ed’s Form 706 concluded in late 2010, approximately four years after Ed’s death, thereby allowing the focus to turn to winding down the Trust. As part of the Trust’s wind down, the Ranch (which all of the Children wanted to liquidate) was transferred to a newly- formed entity, Sundown Ranch LLC, the owners of which would be the Children in equal shares and trom which the Children would eventually succeed in selling the Ranch. Also in connection with the Trust’s wind down, each Child executed a “Lien on Real Property” in favor of the Foundation in the amount of $364,243.80 (these instruments are referred to hereinafter as the “Liens’”), 10. The Trust's operations largely ceased in 2011, though a relatively small amount of cash remained in the Trost through 2012. The last set of Trust tax returns were filed in January 2013, and the last financial activity involving the Trust occurred on January 15, 2013, B. Lhe Litigation li. In June 2016, Lisa initiated the instant lawsuit by filing her Petition to Compel Trustee to Account against Celeste in this Court. Lisa’s initial pleading sought an accounting of ~3- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS the Trust and limited related relief. 12. In early 2017, Petitioner filed her Amended Petition to Compel Trustee to Account and to Redress Breaches of Trust (the “Amended Petition”). The Amended Petition was significantly broader in its scope and sought relief relating to both the Trust and Foundation. Celeste moved to strike various allegations and requests for relief regarding the governance and operations of the Foundation on the grounds that Petitioner lacked standing to pursue those matters. The Court granted Celeste’s motion to strike with leave to amend. 13. Petitioner filed her Second Amended Petition to Compel Trustee to Account and to Redress Breaches of Trust (the “SAP”) on July 12, 2017. Celeste again moved to strike various allegations and requests for relief’ regarding the governance and operations of the Foundation on standing grounds, The Court granted Celeste’s motion in its entirety without leave to amend, 14. After the Court granted Celeste’s second motion to strike, the Attorney General for SAN FRANCISCO, CA 941113598 SHARTSIS FRIESE LLP ONE MARITIME P ZA the State of California filed a joinder limited to the request for an accounting of the Trust. EIGHTEENTH FLOOR 15. The parties have engaged in substantial discovery since the inception of this litigation, including extensive document discovery, subpoenaing various third parties, and depositions, Were this case not to be resolved, substantial additional discovery would be required, and the trial would take several weeks. (6. In late 2017, the Foundation filed suit in Sonoma County Superior Court against Lisa, Rick, David, and Darlene to recover the amounts due under the Liens. That lawsuit (the “Sonoma Proceeding”) has been stayed by agreement of the parties thereto. Cc. The Agreement 17, After three full days of mediation before the Honorable James B. Lambden (Ret.), the parties reached an agreement in principle resolving their disputes. The written agreement was thereafter heavily negotiated, such discussions including counsel for various of the parties convening for a fourth session before Justice Lambden to work through certain unresolved deal terms. The process, from the initial mediation session to the execution of the Agreement, spanned more than five months. . 18. All financial terms of the Agreement are stated in the Agreement, a copy of which -4.- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS is attached hereto as Exhibit A. The parties to the Agreement, inter alia, maintain that it is not an admission of liability, commit to the dismissal of this action and the Sonoma Proceeding within seven days after the “Effective Date” (which is defined as the date on which the Court grants this Petition), and agree to various other terms that are regularly included in agreements resolving disputes of this nature, including broad mutual releases and non-disparagement provisions. The parties to the Agreement also agree that the Court is to retain jurisdiction for the purposes of enforcement pursuant to Code of Civil Procedure Section 664.6, 19. Ed died nearly fourteen years ago. The Trust’s post-death administration ceased more than seven years ago. This case has been ongoing for nearly four years. The Sonoma Proceeding has been pending for well over two years. The Agreement, if the orders requested herein were to be made and that the Agreement were then to become effective, would bring such matters to a conclusion. SAN FRANCISCO, CA 94111-3598 FRIESE LLP MARITIME PLAZA BIGHFEENTH FLOOR HI THE COURT SHOULD GRANT THE PETITION Ane The Court Should Approve The Agreement Sso TIARTSIS 20. Pursuant to Probate Code Section 17200(a), a “trustee or beneficiary of a trust may petition the court... concerning the internal affairs of the trust.” Prob. Code § 17200(a), ON Approval of an agreement resolving litigation involving a trust is a matter concerning the internal affairs of the trust. See, e.g., Union Bank of Cal. v. Braille Inst. of Am., Inc., 92 Cal. App. 4th 1324, 1327 2001 (moting that “the trustee filed a petition to approve the May 7, 2001, mediated settlement and for instructions pursuant to Probate Code sections 1310, 15681, 15682, and 17200"), Here, the Agreement becomes binding and effective only if, inter alia, the Court approves the Agreement, 21. The Agreement isi fair, just, reasonable, and Jawful and is in the best interests of Trust and the beneficiaries thereof. The terms of the Agreement are a product of multiple full days of mediation before Justice Lambden and an arms-length process that spanned several months and involved separate counsel for (1) Robert and Celeste, (2) Lisa, (3) the Foundation, and (4) the Attorney General’s Office. The Agreement, once effective, will bring to a conclusion an extraordinarily expensive and complicated case that has been ongoing before this Court for ~5- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-3611 APPROVAL AND SETTLEMENT OF ACCOUNTINGS nearly four years, will resolve a litigation in Sonoma County that was filed more than two years WG ago, and should allow the beneficiaries of the Trust to move on from the death of Ed nearly fourteen years ago and the Trust administration that took place thereafter. Ww 22. As such, the Court should find and conclude that the Agreement is fair, just, BS reasonable, and lawful and in the best interests of the Trust and its beneficiaries. Cr Subject to the remaining conditions precedent discussed below, the Agreement should therefore be approved, Hr and the Court should direct and authorize the Agreement’s implementation. ~~ B. The Court Should Settle and Oo Approve The Accounting and Celeste’s Actions and ‘Transactions as Trustee 23. Pursuant to Probate Code Section 17200(a), a “trustee or beneficiary of a trust may petition the court . . . concerning the internal affairs of the trust” Prob. Code §17200{a). Proceedings concerning the internal affairs of a trust include “[s]ettling the accounts and passing SAN FRANCISCO, CA 941113598 upon the acts of the trustee, including the exercise of discretionary powers.” id. §17200(b)(5). SHARTSIS FRIESE LLP ONE MARITIME PLAZA RIGHTEENTH FLOOR 24, The verified filing submitted on July 31, 2019, which is attached hereto as Exhibit B and incorporated herein by reference in its entirety, included the following documents: a) Accounting for the Trust covering the period of September 15, 2006 to September 15, 2007; b) Accounting for the Trust covering the period of September 16, 2007 to September 15, 2008; c) Accounting for the Trust covering the period of September 16, 2008 to September 15, 2009; d} Accounting for the Trust covering the period of September 16, 2009 to September 15, 2010; ©) Accounting for the Trust covering the period of September 16, 2010 to September 15, 2011; f Accounting for the Trust covering the period of September 16, 2011 to September 15, 2012; and g) Accounting for the Trust covering the period of September 16, 2012 to ~6- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-36111 APPROVAL AND SETTLEMENT OF ACCOUNTINGS January 15, 2013. OO 25. For expositional ease, the foregoing are collectively referred to hereinafter as the “Accountings.” As with Court approval of the Agreement, (1) approval and allowance of the hw! Accountings and (2) confirmation and approval of all actions and transactions of Celeste, as co- Be trustee of the Trust, as set forth in the Accountings, are conditions precedent to the Agreement A becoming effective. DH 26. A summary appears as the first page of each of the Accountings. “SS 27, Pursuant to Probate Code Section 1064(a)(2), Celeste notes the following in a connection with the Accountings: a) The Accountings extend back nearly fourteen years, and their preparation therefore created a number of challenges. Napa Community Bank-—-one of the primary financial institutions used to hold Trust assets—no longer exists, and Celeste has been advised that Napa SAN FRANCISCO, CA 94111-3508 TSIS FRIESE LLP ONE MARITIME PLAZA Community Bank’s successor, RaboBank, N.A., did not maintain all pre-acquisition records. EIGHTEENTH BLOOR Ganze & Co., the accountancy firm employed to prepare Trust tax filings, did not maintain all of its records for the Trust. Further, Celeste no longer has all of her records because, inter alia, she lost various records in one of the major Napa wildfires. During her tenure as a co-trustee, Celeste SE was not the only person involved in the Trust’s administration; she engaged various professionals, incliding multiple bookkeepers, and had a co-trustee, so she alone would not have had all the pertinent records and does not have first-hand knowledge of every Trust transaction. Given the size of the Trust, the passage of time, and the other circumstances surrounding this matter, Celeste does not have a specific recollection of the details of each of the hundreds of transactions reflected in the Accountings. In order to mitigate these issues, Celeste has relied heavily on the records gathered in connection with this litigation and information that can be gleaned therefrom, rather than her personal recollection. b) The parties to this litigation have identified various unusual entries in the Accountings, including that the credits exceed charges in the Accountings by approximately 0.3% (meaning that the Accountings reflect more money being distributed or disbursed than being received), significant expenditure activity on December 31 and January 1 (suggesting that the -7J- Case No. PETITION FOR APPROVAL OF AGREEMENT AND 26-3611] “APPROVAL AND SETTLEMENT OF ACCOUNTINGS individual entering the data used in preparing the accounting was concerned with capturing the ENO) correct amount and year for a given transaction, but not correct amount for each day or month), certain undetermined transactions where details were not available, and adjusting entries when < extant documentation indicated such an adjustment was appropriate (¢.g., adjustments to reflect © fact that check register balances in Trust’s QuickBooks files was not the same as those in bank 72 statements). The unusual entries in the Accountings are a product of various factors, including the extraordinarily complicated nature of the Trust, the size of the Trust, the loss of ia documentation, the fading of memories, the multiyear span of the Accountings, and the fact that > the Accountings were prepared many years post facto. . c) The Agreement discussed above is intended to address such unusual entries by resolving any actual or potential claims relating thereto, as well as other actual and potential disputes among the signatories to the Agreement. N FRANCISé 0, CA 941113598 SHAR’ aPSiS FRIESE LLP ON MARITIME PLAZA Pursuant to Probate Code Section 1064(a)(3), the trustee compensation paid to EIGHTEENTH FLC R 28, Celeste was $1.8 million (subject to the terms of the Agreement at Section 2(A)) and to Rick was Fant $200,000. The amounts paid to attorneys from the assets subject to the Accountings, as far as me. Pd a Celeste is aware, are listed in the Accountings. Celeste is informed and believes that the amounts irat paid to attorneys from the assets subject to the Accountings, as reflected therein, equal the following amounts: (a) Dickenson, Peatman & Fogarty: $885,280.00; (b) Hinman & Carmichael LLP: $21,989.98; (c) Zeller, Hoff, & Zeller, Inc.: $8,958.76; (d) Silk, Adler & Colvin: $3,860.48; {e) Rybicki and Blevens LLP: $2,278.00; (f) Goralka Law Firm, PC: $1,580.32; (g) Thomas Stikker: $1,302.18; and (h) Hanson Bridgett LLP: $190.00 29. Pursuant to Probate Code Section 1064({a)(4), the Trust engaged and compensated various members of the White/Keith family to aid in the Trust’s administration and provides the following information: a) The real estate firm owned by Lisa was paid $1,784,000.00 in commissions relating to the liquidation of real estate holdings connected to the Trust. b) In addition to his $200,000 in trustee fees, Rick received a salary from one or more entities owned by the Trust. Celeste is informed and believes that Quarterly Wage and ~R- Case No. PETETION FOR APPROVAL OF AGREEMENT AND 26-3611 APPROVAL AND SETTLEMENT OF ACCOUNTINGS Withholding Reports filed with the State of California reflected $34,415.65 in compensation paid to Rick in the third and fourth quarters of 2006 and $83,878.04 in compensation paid to Rick in 2007 and that Rick’s W-2 wage and tax statements reflected $82,115.40 in compensation in 2008, $87,230.79 in compensation in 2009, and $16,153.85 in compensation in 2010.