Preview
Peter L. Weber - 218473
PWeber@mpbf.com
Andy Y. Chen - 294240
AChen@mpbf.com
MURPHY, PEARSON, BRADLEY & FEENEY
88 Kearny Street, 10th Floor
San Francisco, CA 94108-5530
Telephone: (415) 788-1900
Facsimile: (415) 393-8087
Attorneys for Defendants,
RICHARD T. FRANCHESCHINI, PATRICK M.
MACIAS AND RAGGHIANTI FREITAS, LLP
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
08/22/2018
Clerk of the Court
BY: KALENE APOLONIO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
FRANK I. MULBERG ,
Plaintiff,
v.
RICHARD T. FRANCHESCHINI, PATRICK.
M. MACIAS, RAGGHIANTI FREITAS, LLP,
A California limited liability partnership and
Does | through 30, inclusive,
Defendants.
Case No.: CGC-18-564392
REQUEST FOR JUDICIAL NOTICE IN
SUPPORT OF DEFENDANTS’ MOTION
TO STRIKE PLAINTIFF’S CLAIMS FOR
PUNITIVE AND EMOTIONAL DISTRESS
DAMAGES
Date: September 18, 2018
Time: 9:30 a.m.
Dept.: 302
Reservation Number: 08220918-04
Complaint Filed:
Trial Date:
February 16, 2018
None Set
Defendants Richard T. Francheschini, Patrick M. Macias and Ragghianti Freitas, LLP
(collectively “Defendants”) hereby request that this Court take judicial notice of the following document,
which is attached to the Declaration of Peter Weber.
Exhibit “1”: July 13, 2018 Order granting Defendants’ Motion to Strike in part.
Exhibit “2”: Plaintiff’s Second Amended Complaint.
Evidence Code Section 452(d) allows this Court to take judicial notice of records of any Court
of this state or any court of record of the United States or of any state of the United States. Evidence
Code Section 452(h) allows this Court to take judicial notice of facts and propositions that are not
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REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESreasonably subject to dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.
Furthermore, California Evidence Code section 453 states that a request for permissive judicial
notice is conditionally mandatory if sufficient notice of the request is given to the adverse party, and the
Court is furnished with sufficient information to take judicial notice of the records requested. (Cal. Evid.
Code Sec. 453.) Here, Defendants have given statutory notice of this request pursuant to the California
Code of Civil Procedure Section 1005 and has furnished the Court and the adverse party of the
documents.
DATED: August 22, 2018
MURPHY, } RSON, BRADLEY & FEENEY
|
Peter L\WebeP
Andy Y.‘Chen
Attorneys for Defendants,
RICHARD T. FRANCHESCHINI, PATRICK M.
MACIAS AND RAGGHIANTI FREITAS, LLP
By
AYC.3281930.doex
2
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESCERTIFICATE OF SERVICE
I, Maria Diazgranados, declare:
Tam a citizen of the United States, am over the age of eighteen years, and am not a party to or
interested in the within entitled cause. My business address is 88 Kearny Street, 10th Floor, San
Francisco, California 94108.
On August 22, 2018, I served the following document(s) on the parties in the within action:
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO
STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS
DAMAGES
T |
VIA OVERNIGHT SERVICE: The above-described document(s) will be delivered by
overnight service, to the addresses listed below.
Frank I. Mulberg Attorney For Plaintiff in Pro Per
P.O. Box 909
Mill Valley, California 94942
E-mail: fmulberg@yahoo.com
Phone: (415) 388-2316
Fax: (415) 388-6929
I declare under penalty of perjury under the laws of the State of California that the foregoing is
a true and correct statement and that this Certificate was executed on August 22, 2018.
Man bug wud A~
Maria Diazgranados
-3-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE
PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESExhibit 1TICINO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Jul-13-2018 4:57 pm
Case Number: CGC-18-564392
Filing Date: Jul-13-2018 4:56
Filed by: JACQUELINE ALAMEDA
Image: 06415560
ORDER
FRANK I. MULBERG VS. RICHARD T. FRANCHESCHINI ET AL
001006415560
Instructions:
Please place this sheet on top of the document to be scanned.a
Pete ute, 210443 :
mueeru PaxZon Serr PRNVY FILED
a ON : "6 jh of JUL 13 2018
Tt: 4 HHO 19D OES ont VOURT
(Pacheram pet wn) Oa i
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
FRANK L MULBERG, Case No.: Oe
Plaintill, [PRO: R GRANTING
DEFENDANT RICHARD T.
Y. FRANCHESCHINI, PATRICK M. MACIAS
AND RAGGHIANTI FREITAS, LLP'S
RICHARD T. FRANCHESCHINI, PATRICK M. | MOTION TO STRIKE PUNITIVE AND
MACIAS, RAGGHIANTI FREITAS, LLP, A EMOTIONAL DISTRESS DAMAGES
California limited liability parmership and Does 1
through 30, inclusive, Date: 7/3/2018
Time: 9:30 a.m.
Defendants.
Dept.: 302
DOF: February 16, 2018
Trial Date: None Set
On July 13, 2018, the duly noticed motion to strike punitive and emotional distress damages from
the First Amended Complaint of plaintiff FRANK I. MULBERG came on regularly for hearing in
Department 302 of the above-entitled court, the Honorable E. Kahn presiding.
The Court, having reviewed the moving papers, opposition papers and reply papers, orders as
follows:
Defendants move to strike five passages from plaintiff's first amended complaint (FAC): Page
27, line 24 (legal malpractice): ‘The motion to strike is GRANTED WITHOUT LEAVE TO AMEND.
Emotional distress damages are not available for a malpractice cause of action. (Smith v. Sup. Ct. (1992)
10 Cal.App.4th 1033, 1038-39; Merenda v. Sup. Ct. (1992) 3 Cal-App.4th 1, 9-11.) Page 33, lines 8-9
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[PROIEISER] ORDER GRANTING DEFENDANT RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND
RAGGHIANTI FREITAS, LLP'S MOTION TO STRIKE PUNITIVE AND EMOTIONAL. DISTRESS DAMAGES(breach of fiduciary duty): GRANTED WITH LEAVE TO AMEND. Plaintiff pleads that he
“suttered?emotional distress, including punitive damages." However, the FAC nowhere pleads that
plaintiff suffered a punitive damages award. Also, plaintiff fails to allege specific facts showing that
defendants’ conduct was oppressive, fraudulent or malicious. (See Smith, 10 Cal.App.4th at 1041-42.)
Allegations of mistaken litigation tactics and strategy or failures to advise do not suffice. Page 34, lines
2-3 (breach of contract): GRANTED WITHOUT LEAVE TO AMEND. Emotional distress damages are
not available for a breach of contract cause of action. (Ehrlich v. Menzies (1999) 21 Cal.4th 543, 558-
59.) Page 38, line 8 (negligent misrepresentation):; GRANTED WITHOUT LEAVE TO AMEND as to
punitive damages, which are not available for a negligent misrepresentation cause of action. (Alliance
Mortgage Co. v. Rothwell.(1995) 10 Cal.4th 1226, 1241.) GRANTED WITH LEAVE TO AMEND as
to emotional distress; plaintiff must plead more than the vagaries of trial. (See, e.g., Merenda, 3
Cal.App.4th at 1] ("[llitigation is almost always distressing for litigants.").} Prayer for relief: GRANTED
WITH LEAVE TO AMEND. Regarding service of papers, plaintiff has had full opportunity to state his
views on the motion’s substance and California's courts generally decide disputes on their merits.
IT IS SO ORDERED.
Dated: #/on fag d bL4h, (Yleser)
Judge of the Superior Court
RICHARD ULMER
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[PROPOSED] ORDER GRANTING DEFENDANT RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND
RAGGHIANTI FREITAS, LLP'S MOTION TO STRIKE PUNITIVE AND EMOTIONAL DISTRESS DAMAGESExhibit 224
25
FRANK I. MULBERG (SBN 072038)
In Pro Per
P.O. Box 909
Mill Valley, California 94942
Telephone: (415) 388-0605
Facsimile: (415) 388-6929
Attorneys for Plaintiff
Frank I. Mulberg (In Pro Per)
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
FRANK I. MULBERG
Plaintiffs,
vs.
-00o-
Case No.: CGC-18-564392
)
) SECOND AMENDED COMPLAINT FOR
) DAMAGES FOR:
)
RICHARD T. FRANCHESCHINI, PATRICK ) Legal Malpractice; Breach of Fiduciary
M. MACIAS, RAGGHIANTI FREITAS, LLP ) Duty; Breach of Contract; Negligent
a California limited liability partnership and
Does 1 through 30 inclusive,
Defendants
) Misrepresentation; Intentional
Concealment (Fraud); Unjust
Enrichment; Punitive Damages
1 SECOND AMENDED COMPLAINT FOR DAMAGESPlaintiff Frank I. Mulberg aka. Mulberg Law Firm (“Mulberg”) brings this action against}
defendants Richard T. Franceschini, Patrick M. Macias and Ragghianti Freitas LLP (collectively
“Defendants”) and alleges as follows
GENERAL ALLEGATIONS
1, Plaintiff is, and at all times herein mentioned in this claim, was an individual residing
in Marin County, California.
2. Plaintiff is informed and believes, and on that basis alleges, that Defendant Richard T.
Francheschini, at all times herein mentioned was a resident of the City and County of San
Francisco, California, and is authorized to practice law in the State of California.
3. Plaintiff was the former trustee of the Patricia Davis Daneman Amster 2009
Irrevocable Trust (hereafter referred to as “PDDA Trust”) and was represented by Defendants as
his attorney in the following Marin Superior Court trial matters related to and arising from the
litigation, Docket number PRO 140334 (hereafter referred to as “Amster Trust Trial Matters” or
“Amster Trust Litigation Matters”) : Trustee’s Petition for Approval and Settlement of Accounts
and for Instructions; Jn Re The PDDA Trust, Petitioner Patricia D. Amster, Beneficiary v.
Respondent Frank I, Mulberg, Trustee and related cross-actions; Trustee’s Petition for Trustee
fees and Attorney fees; and Opposition to Beneficiary Amster’s Petition for Attorney fees, etc.
4. Defendant Franceschini, based upon information and belief at all relevant times herein
mentioned was a partner engaged in the practice of law in the law firm of Ragghianti Freitas
LLC (hereafter referred to as “RF LLC”), Defendant Franceschini specialized in Estate and Trust|
Litigation and Estate Planning and Probate areas as a partner in RF LLC, and at all relevant times}
herein mentioned was authorized to practice law in the State of California. Defendant
Franceschini, at all relevant times, represented Plaintiff during both the Amster Trust Trial
Matters and the Amster Appeals.
2 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
5, Based upon information and belief, at all relevant times herein mentioned, Defendant
RF LLC (also referred to as “Firm”) is a California limited liability law partnership authorized to
practice law in the State of California, practices law throughout the bay area and has an office
located in Marin County, California. Plaintiff is informed and believes and thereupon alleges
that Defendant RF LLC is, and at all'times herein mentioned was, duly registered and licensed
with the appropriate state agencies to practice law in the State of California,
6. Defendant Patrick M. Macias, based upon information and belief at all relevant times
herein mentioned was a partner in the practice of law in the law firm of RF LLC and acted, at
times, as a partner of RF LLC and/or in his individual capacity practicing law with RF LLC in
representing Plaintiff during both the Amster Trust Trial Matters and the Amster Appeals.
Defendant Macias, at all relevant times herein mentioned was authorized to practice law in the
State of California, and was selected by Defendant Franceschini to assist him with RF LLC’s
representation of Plaintiff as set forth herein.
7. Plaintiff is informed and believes, and based thereon allege that at all times mentioned
herein, Defendants, and each of them, were acting as agents, servants, employees, partners
and/or principals of each other (including any fictitious named defendants) and, in committing
the acts and omissions alleged hereinafter, were acting within the course and scope of their duty
and authority with the permission, knowledge, consent, and ratification of each of the remaining
Nefendants.
8. The representation of Plaintiff by Defendants in the Amster Trust Trial Matters began
in late December 2013, and ended on or about July 2017 after the related appeals mentioned
herein were concluded.
9. During the Amster Trust Trial in the courtroom of the Honorable Mark A. Talamantes.
after the trial had proceeded for a number of days, Defendant Patrick Macias on June 3, 2015,
without advising Plaintiff, made an oral motion to disqualify Judge Mark Talamantes under
3 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
California Code of Civil Procedure Section 170.1. The judge refused to recuse himself,
informed Defendant Macias to make the motion in writing, which was then submitted on June 4,
2015, and the trial was put in recess.
10. Judge Talamantes on June 9, 2015, by order, under CCP section 170.4 caused the
trial to proceed despite the fact that Defendants filed a Writ Petition (Docket no, A145364) for
removal of Judge Talamantes, which Writ Petition was ultimately denied by the Court of Appeal
and the trial court docket reflects such denial by entry on June 16, 2015 of the appellate court’s
opinion of June 12, 2015. Judge Talamantes was visibly disturbed during the remainder of the
trial by Defendants’ oral motion for recusal and removal, and subsequent filing of the Writ
Petition with the Court of Appeal.
11. Plaintiff was further represented by Defendants through the related post trial appeals
(hereafter referred to as “Amster Appeals” docketed respectively as A146374, A146978 and
A147574) arising from the Amster Trust Trial Matters, which representation concluded shortly
after June 26, 2017 when the Marin Superior Court approved by Order the parties’ stipulation to
waive costs after Remittitur from the California Court of Appeal.
12. Plaintiff is ignorant of the true names and capacities of defendants sued herein as
Does 1 through 10, inclusive, and therefore sue these defendants by such fictitious names.
Mulberg will amend this Complaint to allege their true names and capacities when ascertained.
Mulberg is informed and believes and thereon alleges that each of the fictitiously named
defendants is responsible in some manner for the occurrences and actions herein alleged, and that
Plaintiff's damages as herein alleged were proximately caused by such defendants.
13. Atall times mentioned in this Complaint, based upon information and belief, Does
11 through 30 were the agents, servants, employees, partners or joint venturers or alter egos of
the other named Defendants, and, in doing the things alleged in the Complaint were acting within]
4 SECOND AMENDED COMPLAINT FOR DAMAGESthe course and scope of such agency, partnership or joint venture with the permission, knowledge
and consent of such other named Defendants.
14. On or about December 23, 2013, Plaintiff received an Attorney Engagement Letter
(“Attorney Agreement”) , dated December 23, 2013 crafted by Defendant Franceschini of RF
LLC (Firm). which Attorney Agreement provided Plaintiff retained and employed defendant
Franceschini and Defendant RF LLC (Firm) to represent Plainitff as his attorney with respect to
all matters pertaining to Plaintiff in his capacity as the trustee of the Patricia Davis Daneman
Amster 2009 Irrevocable Trust and related matters therein. After signing the letter, Plaintiff by
U.S Mail and electronically sent the signed letter back to RF LLC (Firm) on or about December
23, 2013. A true and correct copy of Defendants’ Attorney Agreement of December 23, 2013,
signed by Defendant Franceschini on behalf of RF LCC is attached hereto and incorporated
herein as Exhibit “1.” The Exhibit 1, Attorney Agreement was also signed by the Plaintiff.
15. At the time and place of Plaintiffs mailing of such signed Exhibit 1, Attorney
Agreement, Defendants’ accepted such employment and agreed to perform such services for
Plaintiff, Defendant Franceschini, previous to the signing of such Exhibit 1, Attorney
Agreement, by Plaintiff represented to Plaintiff that he (Franceschini) was an expert in litigation
of trust disputes between trustees and beneficiaries, trust administration matters and that he had
extensive experience in these areas. Defendant Franceschini further represented at that time that
he had practiced extensively in the Marin Probate Court and was familiar with its judicial
officers. Plaintiff relied upon such representations in retaining Defendant Franceschini of RF
LLC (Firm). Defendants’ continued their representation of Plaintiff until approximately July
2017, which representation concluded shortly after June 26, 2017, after the Marin Superior Court
approved by Order the parties’ stipulation to waive costs after Remittitur from the California
Court of Appeal.
5 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
16. Pursuant to the terms of Defendant’s Exhibit 1, Attorney Agreement, Defendants
were responsible for performing all of the legal services contemplated under the agreement, keep
client informed of progress and developments, evaluate settlement offers for the benefit of
Plaintiff, disclose all of the risks, hazards and areas of exposure of the case to Plaintiff, disclose
each and every conflict of interest, maintain loyalty to their client, and respond promptly to
Plaintiff's inquiries and communications in a competent manner.
17. At all times thereafter, Defendants and each of them, failed to exercise reasonable
care and skill in performing those legal skills for Plaintiff related to matters as set forth herein to
the Amster Trust Trial Matters, the Amster Appeals, and including but not limited to settlement
offers arising therein pertaining to In Re The PDDA Trust.
18. Beginning on the date of representation in December 2013, and thereafter continuing
on throughout the Amster Trust Litigation Matters and the Amster Appeals, Defendants failed to
advise, inform and disclose to Plaintiff the potential dollar exposure and risks of the litigation,
individual liability and financial consequences, surcharges that could arise from the claims,
professional reputational consequences, potential involvement of the State Bar, estimate of
attorneys’ fees and costs, time and costs necessary for Plaintiff and his staff to put forth to assist
attorneys in defending his Statement of Accounts and against the other claims of Amster,
potential loss of income to his professional practice as an attorney and a CPA, credit standing
damages, interest and financing needs, and consequences of liens from any judgment that could
result should Patricia Amster as beneficiary of the PDDA Trust prevail on her alleged theories
and claims against the Plaintiff as former trustee.
19. On or about the commencement of the representation, Defendants became aware that
Plaintiff, in his capacity as trustee of the PDDA Trust pursuant to the terms of the Trust
Declaration executed by Arlene Davis (Amster’s mother) the Settlor/Trustor/Trustee of the
PDDA Trust was appointed as successor trustee by Patricia Amster, beneficiary, after the death
6 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
of her mother in September 2011; and that Plaintiff billed trustee fees on an hourly basis at his
customary hourly rate in accordance with the Trust Declaration fee compensation terms
permitting such. Defendants, beginning on the date of representation and continuing thereafter
never advised, mentioned or disclosed to Plaintiff that his fees were not governed by the Trust
Declaration compensation provisions. Nor did Defendants ever advise or disclose to Plaintiff
that the Plaintiff trustee’s fee compensation as set forth by the terms of the Trust Declaration
were or could be limited, modified, revised or governed other than by the of the Trust
Declaration contract, itself. A true and correct copy of the Patricia Davis Daneman Amster 2009
Irrevocable Trust Declaration (“Trust Declaration”) is attached hereto and incorporated herein as
Exhibit “2.”
20. Defendants never disclosed, advised or informed Plaintiff that the terms of the trustee}
fee provisions in the Trust Declaration contract were subject to modification, limitation, revision,
and were controlled and/or trumped by Local Marin County Rules, despite any California statute
or case law, otherwise.
21. Defendants never disclosed, advised or informed Plaintiff that trustee compensation
based up the terms of the hourly fee provisions in the Trust Declaration could be substantially
reduced by a court despite the fact the amount of the hourly fees were less or lower than what a
Qualified Corporate Trustee would charge for the same services provided.
22. Defendants submitted to the Probate Court Plaintiff trustee’s Statements of Account
for the period beginning October 1, 2011 through April 4, 2014. The Statements of Account
showed that Plaintiff trustee over the two and one half years of his trusteeship was able to
monetize all of the illiquid, closely held, family real property interests in the PDDA Trust,
despite being governed by restrictive management and transfer/sale/redemption agreements, to
over $8,000,000 in cash while realizing approximately over $4,500,000 in gains and profits for
the PDDA Trust and its beneficiary.
7 SECOND AMENDED COMPLAINT FOR DAMAGES24
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23. Defendants never advised, disclosed or informed Plaintiff that his efforts in
monetizing the PDDA Trust illiquid assets in the amount of over $8,000,000 while realizing
gains and profits of over $4,500,000 through sales, purchases, rents and redemptions of assets in
partnerships and tenancies in common with dysfunctional family members and complex
administrative trusts of Amster’s deceased parents, would not afford him his hourly
compensation for his services under the trustee fee compensation terms of the Trust Declaration
contract.
24. Defendants never advised, disclosed or informed Plaintiff that the total amount of the
hourly fees he billed in his capacity as trustee of the PDDA Trust pursuant to the trustee fee
compensation terms of the Trust Declaration contract could not exceed the amount allowed by
the Marin County Local Rule based upon an annual percentage fee of approximately 8/10" of
1% of the carry value of the assets despite such Local Rule being contrary to the fee
compensation terms of the Trust Declaration Contract.
25. Defendants never advised, disclosed or informed Plaintiff that he would be precluded
from receiving any hourly trustee fee pursuant to the trustee fee compensation provision of the
Trust Declaration contract for services related to the purchase or sale of real estate assets
interests therein, for the sale and/or redemption of business partnerships holding real estate and
other assets, for management related services as an active trustee partner in the numerous
dysfunctional family businesses, and all services related to the aforementioned activities.
Defendants never advised, disclosed or notified Plaintiff that the only trustee fee he would be
allowed to receive would be, or is, based upon an annual percentage fee of approximately 8/ 10%
of 1% on the carry value of the assets pursuant to the Marin County Local Rules.
26. Neither Defendant Franceschini or Macias, at all relevant times herein, ever advised,
disclosed or informed Plaintiff that the trustee’s hourly fees billed for trustee services (in such
capacity) related to the PDDA Trust pursuant to the Trust Declaration contract involving the
8 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
purchase and sale of real estate assets and interests therein, sale and redemption of business
interests, management of assets as a trustee partner and all related activities therein, are not
compensable in the same amount they would be calculated for a Qualified Corporate Trustee
using percentage fees for such services, or other manner based upon the Corporate Trustee’s
published fee schedule. Nor did Defendants inform Plaintiff that the Marin County Local Rules
precluded Plaintiff from receiving and being entitled to any trustee fee compensation on an
hourly basis that exceeded an annual fee of approximately 8/ 10" of 1% of the carry value of the
PDDA Trust assets. Had any of the Defendants advised Plaintiff that the Marin County Local
Rule limited Plaintiffs trustee fees and controlled the Exhibit 2, Trust Declaration, whose terms
allowed hourly billing at the customary attorney or CPA hourly rate, Plaintiff would have settled
the case as such made it unnecessary to have a trial, at all, on the issue of the amount of trustee
fees under the terms of the Trust Declaration.
27. Defendant Franceschini negligently advised Plaintiff that the Statements of Account
submitted and signed off by Defendants were proper, in order, and would be approved by the
court without any substantial adjustments, which they were not. /
28. Defendant Franceschini was negligent and failed to exercise reasonable care in
preparing and reviewing the Statements of Account for the 2 % years of Plaintiff's trusteeship,
including its defense, causing Plaintiff to suffer damages, such as, but not limited to the
following:
a. Numerous objections by Amster to Plaintiffs Statements of Account causing
excessive attorney time charges by the Defendants, unnecessary and costly discovery disputes,
abandonment of Plaintiff's discovery motions to compel without receiving any benefit, and
excessive time demands made upon Plaintiff in his capacity as former trustee for which the
probate court judge did not reimburse him from the PDDA Trust in defending his Statements of
Account.
9 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
29, Defendant Franceschini and Macias were negligent and failed to exercise reasonable
care by not taking the deposition of Marlene Getchell, Esq., successor trustee of the PDDA Trust
Trust’s, its expert witness, which prejudiced Plaintiff's defense, in that, her material relevant
testimony could not be contradicted, nor could she be impeached, thus resulting in allowing
Judge Talamantes to rely heavily on such testimony to the detriment of the Plaintiff, as
memorialized in the judgment against Plaintiff. Had the Defendants not failed to take the
deposition of this expert and material witness, the amount of Plaintiff's damages suffered by the
judgment would have been substantially reduced, and possibly, eliminated in its entirety.
30. Defendant Franceschini was negligent and failed to exercise reasonable care by
failing to file Plaintiff's initial Statement of Account and Plaintiff’s initial Petition for
Instructions as soon as possible and no later than January 24, 2014, as requested by Plaintiff, but
instead filed it on January 27, 2014 or later, one day after the filing of Amster’s Petition to
Remove the Trustee; which initially sought (by notice of removal) to compel Plaintiff, as trustee,
to transfer $8,000,000 of assets to nonqualified nominee successor trustees. Plaintiff's Petition
for Instructions sought approval of the court for transfer of $8,000,000 of trust assets to a
qualified successor trustee and not an unqualified one. Furthermore, Defendants negligently,
without any legal basis, failed to exercise reasonable care by crafting a claim in Plaintiff's
Petition for Instructions which argued that Amster did not have the power of appointment to
remove the Plaintiff trustee because she previously removed Mechanics Bank, as successor
trustee in 2011, and she was in the process in January 2014 of removing two private fiduciaries
as successor trustees appointed by her in December 2013 to replace Plaintiff, as trustee. Had
Defendants filed Plaintiff's initial Statement of Accounts and Petition for Instructions as
promised, pursuant to Plaintiff's instructions, no later than January 24, 2014 and not inserted the
diminution of Amster’s power of appointment, Plaintiff would have been the Petitioner/Plaintiff
in the Amster Trust Litigation and not the Respondent/Defendant. Thus, the filing of Plaintiff's
10 SECOND AMENDED COMPLAINT FOR DAMAGESinitial Statement of Account and Petition for Instructions would not have faltered as a result of
deflating Plaintiff's strategy and credibility allowing a non-actionable claim related to the power
of appointment to be rejected by Judge Adams in Plaintiff's Petition for Instructions. By the
time Defendants filed the Petition for Instructions on January 27, 2014 or later, Amster’s
petitions were filed, the circumstances had changed, and the insertion of the improper claim by
Franceschini in Plaintiff's petition poisoned and destroyed Plaintiff's credibility, which should
not have occurred, but for Franceschini’s negligence.
31. Defendant Franceschini and Macias were negligent, did not exercise reasonable care,
breached their fiduciary duty and duty of loyalty to Plaintiff by having him proceed by going
through a trial to prove up the basis of his hourly trustee fees under the terms of the Exhibit 2,
Trust Declaration, by failing to advise, disclose or inform Plaintiff of the Marin County Local
Rule limiting trustee fees, exclusively to an annual fee of 8/ 10" of 1% based upon the carry
value of the assets. Had Plaintiff been informed by Defendants that he could not succeed on his
claim to prove up the validity of his hourly trustee fees pursuant to the terms of the Exhibit 2,
Trust Declaration Contract, he would have settled the case at the outset without the need for any
Petitions for Instructions, Settlement of Accounts, discovery, motions, probate trial and appeals.
32. Plaintiff, on or about December 23, 2013, received a letter from Amster’s attorney,
Henry Froneberger, that Amster as the beneficiary of the PDDA Trust, was exercising her right
to remove Plaintiff , as trustee, and appoint two private fiduciaries in his place, and that he was
to henceforth transfer all of the Trust assets (valued at $8,000,000) to these private fiduciaries.
Attached hereto and incorporated herein as Exhibit 3 is a true and correct copy of a letter, dated
December 20, 2013, from Henry Froneberger, Patricia Amster’s attorney, received by Plaintiff.
A copy of the Exhibit 2, Trust Declaration contract, and Exhibit 3 letter of removal from
Amster’s attorney was then transmitted electronically to Defendant Franceschini.
1 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
33. At or about the time of the receipt of the Exhibit 2 and 3 documents, Defendant
Franceschini was negligent, did not exercise reasonable care, breached his fiduciary duty and
duty of loyalty to Plaintiff by failing to advise, inform or disclose to Plaintiff that he should
resign and transfer all of the assets in the PDDA Trust to Amster’s private fiduciaries as
successor trustees of the PDDA Trust because if he was removed by the court, even without
cause, based on Amster’s exercise of her power of appointment to do so, it was highly likely
neither Plaintiff as trustee, and/or his attorneys would be entitled under the law to reimbursement
for fees from the PDDA Trust for services rendered by the trustee and Defendant attorneys in
defending Plaintiff’s Statements of Account and other claims of beneficiary Amster, as well as
services related to Plaintiff's own Petition for Instructions. Had Plaintiff been advised and
informed by any of the Defendants of such that he should resign and transfer all of the PDDA
assets to Amster’s successor trustees, he would have done so prior to any petition for removal
being filed by Amster and prior to the filing of Plaintiff's Petition for Instructions and Statements
of Account.
34. The probate court rendered its judgment of $306,000 against Plaintiff and it was
affirmed by the Court of Appeal. The appeal court also affirmed the separate order of the probate
court denying any reimbursement of trustee fees and attorneys’ fees to Plaintiff in defending his
Statements of Account and defense against Amster’s claims, as well as fees related to Plaintiff's
Petition for Instructions.
35. Defendants breached their duty of loyalty and fidelity to Plaintiff by allowing, based
upon information and belief, their own self- interest to conflict with the interests of Plaintiff as
their client by unconscionably billing Plaintiff for over $300,000 in fees and costs while
committing numerous negligent acts and omissions as set forth herein, and not advising,
disclosing or informing him that that he could not have his trustee fees approved by the court in
the amount billed to the PDDA Trust pursuant to the terms of the Trust Declaration contract on
12 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
an hourly basis because they exceeded the annual amount limited by the Marin County Local
Rule. Nor did Defendants advise, disclose and inform Plaintiff, at all relevant times, that if he
was removed as trustee by Amster under her power of appointment or otherwise, and did not
resign beforehand, there was a substantial risk that neither Plaintiff and/or Defendants would be
able to have any reimbursement from the PDDA Trust for their respective services as
administrative expenses (fees) approved by the probate court incurred in defense against
Amster’s claims.
36. Plaintiff relied upon the advice, skills, expertise, loyalty and contractual relationship
of and with Defendants in his representation as related to the matters concerning the Amster
Trust Litigation Matters and related three appeals pertaining to Plaintiff's trusteeship.
37. Plaintiff paid Defendants approximately $160,000 in legal fees and. costs pertaining
to the Amster Trust Litigation Matters and Amster Appeals. Defendants continue to send bills to
Plaintiff that do not reflect many of the payments made by Plaintiff, and they allege
approximately $147,000 is currently still outstanding.
(a) Defendants further failed to credit Plaintiff's account with many payments made and
continue to seek collection on these inflated outstanding bills, despite being informed by Plaintiff]
of their improper and unconscionable billing practices.
(b) Defendants fraudulently billed Plaintiff excessively over and above the hourly rates
set forth in their own Attorney Agreement (Exhibit 1) without the consent of Plaintiff.
38. Had Defendants, at all relevant times, advised, disclosed or informed Plaintiff that
his hourly trustee fees billed to the PDDA Trust under the Exhibit 2, Trust Declaration contract,
could not exceed 8/10" of 1%, he would not have litigated the issues that Defendants advised
him to litigate, but instead would have settled the case. Further, had Defendants, at all relevant
times, advised, disclosed or informed Plaintiff as to the risks associated with being removed as
trustee, even without cause based upon Amster’s exercise of her power of appointment as
13 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
possibly precluding, (and actually did) reimbursement of trustee and Defendants’ services
related to the Amster Trust Litigation and appeals, Plaintiff would not have litigated the issues
that Defendants advised him to litigate, but instead would have settled the case.
39, As a further direct and proximate cause of Defendants’ wrongful conduct as alleged
herein, Plaintiff has paid and incurred liability for Defendants attorneys’ fees and costs in an
amount exceeding over $300,000 that would not have been incurred had the Defendants not been
negligent, breached their fiduciary duties, including the duty of loyalty and fidelity in
representation of the Plaintiff.
40. Asa further direct and proximate cause of Defendants wrongful conduct, Plaintiff
has suffered damages that have resulted in having to give up his business office, scale down his
professional practice as a result of liquidity and cash flow management problems stemming from
the inability to generate professional income or to supplement it by way of borrowing due to
poor debt to income ratios making borrowing difficult and more costly, The payment of the
judgment of approximately $306,000, payment of Defendants attorneys’ fees and costs related to
the Amster Trust Litigation Matters and appeals financed by Plaintiff has resulted in a financial
catastrophe. The exact amount of these damages will be proved up at trial.
41. Plaintiff in his capacity as trustee for the PDDA Trust during the Amster Trust
Litigation Matters and three appeals assisted Defendants on a foundational basis as a necessity
throughout the probate court litigation and three related appeals. As a direct and proximate cause
of Defendants wrongful conduct, Plaintiff would not have had to assist Defendants in defending
Plaintiff's Statements of Account and the other claims brought by Amster, as well as the
prosecution of the many issues in the Petition for Instructions, had Defendants not been
negligent. Asa direct and proximate cause of Defendants’ negligence, Plaintiff incurred over a
three and a half year period, approximately $400,000 in time charges that would otherwise have
been reimbursed by the PDDA Trust, but as set forth herein, were not approved by the court,
14 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
Plaintiff would not have litigated these issues that Defendants advised him to litigate, or assisted
Defendants on a foundational basis, but instead, would have settled the case had Defendants not
been negligent. The time spent in defending the aforementioned issues in the Amster Trust
Litigation Matters and Amster Appeals caused severe financial strain on Plaintiff's practice, as
Plaintiff was unable to generate enough professional income given the time constraints that
existed.
42, Asa further direct and proximate cause of Defendants wrongful conduct Plaintiff
suffered damages in the amount of approximately $450,000 related to loss of the ability to earn
professional income resulting from deployment of time, energy and financial resources to the
Amster Trust Litigation Matters and Amster Appeals over a three and a half year period. In
addition, Plaintiff paid the judgment and attorneys’ fees and costs. The exact amount of the
losses and damages suffered by Plaintiff will be proved up at trial. The aforementioned loss
resulted from Plaintiff's difficulty in being able to manage the financial needs of the practice
going forward without sufficient cash flow as a result of and from efforts related to the Amster
Trust Litigation Matters and appeals. There was limited time to be able to service existing
clients, or devote adequate time to obtain new clients, all which, would usually have provided
cash flow to be able to manage and pay professional and personal expenses. Had Defendants not
been negligent and breached their fiduciary duties to Plaintiff as set forth herein, Plaintiff would
not have suffered the financial catastrophe caste upon him.
43. Plaintiff's time and efforts was further expended as a proximate cause of Defendants
negligence and breach of fiduciary duty as set forth herein when, beginning on or about June
2015 when Amster, through her counsel, filed a complaint with the California State Bar
Examiner’s Office (“SBE”) against Plaintiff. Plaintiff spent a substantial amount of his time and
effort in defending this matter over the next six months with the SBE to get it resolved. Had
15 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
Defendants not been negligent and breached their fiduciary duty as set forth herein, there would
have been no need for any of the Amster Trust Litigation and appeals.
44. Asa further direct and proximate cause of Defendants’ wrongful conduct as set
forth herein, Plaintiff had a judgment against him, along with judgment liens recorded against his|
real property and home restricting his ability to refinance the mortgages on the property in order
to continue to pay the expenses of the professional practice and his personal living expenses,
such as, but not limited to mortgages and real property taxes. The exact amount of damages
related to losses attributable to credit standing issues will be proved up at trial.
45. Asa further direct and proximate cause of Defendants’ wrongful conduct as set forth
herein, such as but not limited to and related to imposition of liens on Plaintiff's real property
and home, abandonment of his long time professional office at 655 Redwood Highway, Mill
Valley, California, prohibition on his ability to refinance his real property due to the judgment
against him, loss of practice income, downsizing and diminishment of his practice, lack of
income to pay personal and business expenses, reputational damage, dealing with a complaint to
the SBE, having to defend an appeal with the Court of Appeal seeking over $500,000 of attorney
fees by Amster (just in the Amster Litigation Matters without appeals) that would have caused
Plaintiff to sell his home had he not prevailed, all have contributed to suffering disorder of his
nervous system, humiliation, mental anguish, embarrassment, emotional distress and has been
injured in mind and body, the exact amount to be proved up at trial. Had Defendants not been
negligent and breached their fiduciary duty as set forth herein, there would have been no need for}
any of the Amster Trust Litigation and Amster Appeals, and Plaintiff would not have suffered
the damages mention herein.
46. Defendants negligently advised at the onset of the representation that the Plaintiff
trustee would be entitled to, and would receive from the PDDA Trust, all of his trustee fees and
costs incurred for any time related to his defense of the Statements of Account, pursuing the
16 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
trustee’s petition for instructions and expended in defending Patricia Amster’s alleged claims
against the trustee. Defendants negligently represented to Plaintiff that California law provides
that the PDDA Trust will be responsible for paying both the Plaintiff trustee and Defendant
attorneys for all fees and costs incurred in defending against the Patricia Amster’s alleged claims
against the trustee as such services are part of the customary trust administration.
47, Defendants failed to advise, disclose or inform Plaintiff that should Patricia Amster
as beneficiary of the PDDA Trust prevail on her alleged theories and claims against the Plaintiff
as former trustee, Plaintiff could be surcharged as an adjustment under the Trust Declaration
contract the difference between the approximate $434,000 he was paid for trustee fees during the
2 % years of his trusteeship reduced by the trustee fee calculated based the annual fee of 8/10" of]
1% of the carrying value pursuant to the Marin County Local Rule, which trumps the Trust
Declaration contract hourly fee provisions. This difference amounted to approximately
$205,000.
48. In addition, Defendants failed to advise, disclose or inform Plaintiff that
approximately $62,000 in prior attorney and CPA fees incurred by Patricia Amster, individually,
for her own personal benefit, incurred and outstanding before and not related to Plaintiff's
appointment as being trustee of the PDDA Trust, but were paid from the PDDA Trust (with her
consent) and treated as a distribution in the Statement of Account, could be inadvertently
mistaken as trustee fees should Amster prevail on the other claims. The $62,820 was falsely
alleged by Amster at trial as being trustee fees (despite there were no trustee billings presented in|
evidence as to that effect at the trial as to such amount), and included by the court as being a
trustee fee paid to Plaintiff, which it was not. Defendants failed to present at trial any evidence
on direct, cross-examination or by way of rebuttal to establish that the $62,820 was not trustee
fees, but instead were legal fees owed to Plaintiff by Amster, individually for her own personal
benefit, and not related to his trusteeship. Defendants were aware that the court had by minute
17 SECOND AMENDED COMPLAINT FOR DAMAGESorder prior to trial, designated the issues in the case as pertaining to a dispute, exclusively, about
trustee fees and not related to legal fees owed to Plaintiff by Amster for non-trusteeship matters.
49, In February 2017, after the Court of Appeal affirmed the probate court judgment and
the California Supreme Court denied review, Plaintiff paid the judgment which represented
damages suffered by Plaintiff related to the Exhibit 3, Trust Declaration contract trustee fee
adjustment, as alleged and referred to in Paragraphs 47 and 48 in this Complaint in the amount off
approximately $267,000 ($205,000 and $62,000), plus interest thereon in the amount of $39,000,
or a total of approximately $306,000, the exact amount to be proved at trial. As set forth herein,
as a direct and proximate cause of Defendants’ fiduciary breach and negligent acts and/or
omissions in their failure to exercise reasonable care and skill in their investigation, advice and
conduct, Plaintiff suffered damages equal to the amount paid on the judgment and interest
therein, the exact amount to be proved at trial.
50. Defendants, on or about October 2014, without contacting Plaintiff as to his
availability, failed to advise, disclose and inform Plaintiff that they were appearing for the setting}
of atrial date for the Amster Trust Trial Matters with the Honorable Verna A. Adams, and
despite having knowledge that Plaintiff was going out for trial in a complex estate and trust
contest set for January 21, 2015, without permission or consent of Plaintiff, set the Amster Trust
litigation for the same date, Defendants breached their fiduciary duty to Plaintiff by setting the
Amster trial date for their convenience, while causing Plaintiff undue stress and anxiety while
impeding his ability to adequately be available to assist in preparing the case for trial. After
Defendants’ failed attempts to relieve Plaintiff of a trial double setting by seeking a continuance,
Judge Adams kept the January 21, 2015 trial date and only removed it from the calendar when
Plaintiff contacted the court on January 21, 2015 and informed Judge Adams that he was going
out for trial in another county on January 21, 2015.
18 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
51. Asa result of Defendants breach of fiduciary duty, by the time another convenient
trial date in February could be obtained, Judge Adams informed Defendants that she was moving!
from the Probate Department and would be replaced by the Honorable Mark Talamantes.
52. Defendants, were familiar with the Marin County judiciary, and informed Plaintiff
that although they were aware that Judge Talamantes had no probate experience and this was a
complex case, they had heard that because of his prior experience as an employment attorney and)
although he had limited experience on the bench in Marin, he did grant attorneys high fee
awards. Thus, since they believed he could grant high attorney fee awards and was the only
probate judge, Defendants did not want to exercise a challenge under CCP § 170.6, and decided
not to use a peremptory challenge.
53. Based upon information and belief, and on that basis, Plaintiff alleges that
Defendants breached their fiduciary duty to Plaintiff by not removing Judge Talamantes for a
number of reasons, such as but not limited to the following:
a. Defendants practiced extensively in the Marin Probate Court, had many matters in that
court and to exercise a preemptory challenge to remove the judge would not benefit their
interests or the interests of their other clients. In effect, this alone was an actual conflict of
interest and breach of loyalty that was not disclosed to Plaintiff along with any consequences that
detrimentally could cause damages to Plaintiff by not removing the judge; which ultimately did
cause substantial damage to Plaintiff.
b. It was not until after the conclusion of the trial and after a judgment was rendered
against Plaintiff in the Amster Trust Litigation Matters that Defendants informed Plaintiff that
Judge Talamantes had a prejudice and bias against Ragghianti Freitas LLP and its attorneys, that
existed prior to the commencement of the Amster Trust Litigation Matters. Plaintiff was
informed by both Defendant Macias and Franceschini that one of the RF LLC firm attorneys had
disrespected Judge Talamantes wife, or conduct to that effect. After the conclusion of the
19 SECOND AMENDED COMPLAINT FOR DAMAGES24
25
Amster Trust Trial, based upon information and belief, Judge Talamantes on or about December
2015, acknowledged his prejudice by informing one of the managing partners at RF LLC at a
social event that one of RF LLC’s attorneys had disrespected his wife. Had Plaintiff been
informed by Defendants prior to the commencement of the Amster Trust litigation, he would
have demanded the removal of Judge Talamantes. Defendants breached their fiduciary duty of
loyalty for their own self- interest by failing to remove the trial judge presiding over the case and
by intentionally concealing from Plaintiff and failing to disclose to him the prejudice and bias of
the trial judge against the RF LLC attorneys; as well as Defendants intentionally concealing
other conflicts of interest as set forth herein.
c. Defendants failed to advise, inform or disclose to Plaintiff at the onset of the Amster
Trust Litigation Matters, or at any other relevant time thereafter, that Plaintiff should inform his
carrier to appoint panel counsel to represent Plaintiff when they saw Amster’s petition containing|
claims against Plaintiff seeking to surcharge the former trustee for fiduciary breach,
embezzlement, fraud and punitive damages. Defendants failure to advise, inform, or disclose as
set forth herein was intentionally perpetrated to further their own self-interest, such as, but not
limited to believing that the probate court judge would award them fees from Amster Trust based|
upon their own hourly billing rate of $390 per hour for each attorney as an administrative
expense of the PDDA Trust. Plaintiff, based upon information and belief, at all relevant times
alleges
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Peter L. Weber - 218473 PWeber@mpbf.com Andy Y. Chen - 294240 AChen@mpbf.com MURPHY, PEARSON, BRADLEY & FEENEY 88 Kearny Street, 10th Floor San Francisco, CA 94108-5530 Telephone: (415) 788-1900 Facsimile: (415) 393-8087 Attorneys for Defendants, RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND RAGGHIANTI FREITAS, LLP ELECTRONICALLY FILED Superior Court of California, County of San Francisco 08/22/2018 Clerk of the Court BY: KALENE APOLONIO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO FRANK I. MULBERG , Plaintiff, v. RICHARD T. FRANCHESCHINI, PATRICK. M. MACIAS, RAGGHIANTI FREITAS, LLP, A California limited liability partnership and Does | through 30, inclusive, Defendants. Case No.: CGC-18-564392 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGES Date: September 18, 2018 Time: 9:30 a.m. Dept.: 302 Reservation Number: 08220918-04 Complaint Filed: Trial Date: February 16, 2018 None Set Defendants Richard T. Francheschini, Patrick M. Macias and Ragghianti Freitas, LLP (collectively “Defendants”) hereby request that this Court take judicial notice of the following document, which is attached to the Declaration of Peter Weber. Exhibit “1”: July 13, 2018 Order granting Defendants’ Motion to Strike in part. Exhibit “2”: Plaintiff’s Second Amended Complaint. Evidence Code Section 452(d) allows this Court to take judicial notice of records of any Court of this state or any court of record of the United States or of any state of the United States. Evidence Code Section 452(h) allows this Court to take judicial notice of facts and propositions that are not -1- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESreasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Furthermore, California Evidence Code section 453 states that a request for permissive judicial notice is conditionally mandatory if sufficient notice of the request is given to the adverse party, and the Court is furnished with sufficient information to take judicial notice of the records requested. (Cal. Evid. Code Sec. 453.) Here, Defendants have given statutory notice of this request pursuant to the California Code of Civil Procedure Section 1005 and has furnished the Court and the adverse party of the documents. DATED: August 22, 2018 MURPHY, } RSON, BRADLEY & FEENEY | Peter L\WebeP Andy Y.‘Chen Attorneys for Defendants, RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND RAGGHIANTI FREITAS, LLP By AYC.3281930.doex 2 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESCERTIFICATE OF SERVICE I, Maria Diazgranados, declare: Tam a citizen of the United States, am over the age of eighteen years, and am not a party to or interested in the within entitled cause. My business address is 88 Kearny Street, 10th Floor, San Francisco, California 94108. On August 22, 2018, I served the following document(s) on the parties in the within action: REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGES T | VIA OVERNIGHT SERVICE: The above-described document(s) will be delivered by overnight service, to the addresses listed below. Frank I. Mulberg Attorney For Plaintiff in Pro Per P.O. Box 909 Mill Valley, California 94942 E-mail: fmulberg@yahoo.com Phone: (415) 388-2316 Fax: (415) 388-6929 I declare under penalty of perjury under the laws of the State of California that the foregoing is a true and correct statement and that this Certificate was executed on August 22, 2018. Man bug wud A~ Maria Diazgranados -3- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’ MOTION TO STRIKE PLAINTIFF’S CLAIMS FOR PUNITIVE AND EMOTIONAL DISTRESS DAMAGESExhibit 1TICINO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Jul-13-2018 4:57 pm Case Number: CGC-18-564392 Filing Date: Jul-13-2018 4:56 Filed by: JACQUELINE ALAMEDA Image: 06415560 ORDER FRANK I. MULBERG VS. RICHARD T. FRANCHESCHINI ET AL 001006415560 Instructions: Please place this sheet on top of the document to be scanned.a Pete ute, 210443 : mueeru PaxZon Serr PRNVY FILED a ON : "6 jh of JUL 13 2018 Tt: 4 HHO 19D OES ont VOURT (Pacheram pet wn) Oa i SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO FRANK L MULBERG, Case No.: Oe Plaintill, [PRO: R GRANTING DEFENDANT RICHARD T. Y. FRANCHESCHINI, PATRICK M. MACIAS AND RAGGHIANTI FREITAS, LLP'S RICHARD T. FRANCHESCHINI, PATRICK M. | MOTION TO STRIKE PUNITIVE AND MACIAS, RAGGHIANTI FREITAS, LLP, A EMOTIONAL DISTRESS DAMAGES California limited liability parmership and Does 1 through 30, inclusive, Date: 7/3/2018 Time: 9:30 a.m. Defendants. Dept.: 302 DOF: February 16, 2018 Trial Date: None Set On July 13, 2018, the duly noticed motion to strike punitive and emotional distress damages from the First Amended Complaint of plaintiff FRANK I. MULBERG came on regularly for hearing in Department 302 of the above-entitled court, the Honorable E. Kahn presiding. The Court, having reviewed the moving papers, opposition papers and reply papers, orders as follows: Defendants move to strike five passages from plaintiff's first amended complaint (FAC): Page 27, line 24 (legal malpractice): ‘The motion to strike is GRANTED WITHOUT LEAVE TO AMEND. Emotional distress damages are not available for a malpractice cause of action. (Smith v. Sup. Ct. (1992) 10 Cal.App.4th 1033, 1038-39; Merenda v. Sup. Ct. (1992) 3 Cal-App.4th 1, 9-11.) Page 33, lines 8-9 -~l- [PROIEISER] ORDER GRANTING DEFENDANT RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND RAGGHIANTI FREITAS, LLP'S MOTION TO STRIKE PUNITIVE AND EMOTIONAL. DISTRESS DAMAGES(breach of fiduciary duty): GRANTED WITH LEAVE TO AMEND. Plaintiff pleads that he “suttered?emotional distress, including punitive damages." However, the FAC nowhere pleads that plaintiff suffered a punitive damages award. Also, plaintiff fails to allege specific facts showing that defendants’ conduct was oppressive, fraudulent or malicious. (See Smith, 10 Cal.App.4th at 1041-42.) Allegations of mistaken litigation tactics and strategy or failures to advise do not suffice. Page 34, lines 2-3 (breach of contract): GRANTED WITHOUT LEAVE TO AMEND. Emotional distress damages are not available for a breach of contract cause of action. (Ehrlich v. Menzies (1999) 21 Cal.4th 543, 558- 59.) Page 38, line 8 (negligent misrepresentation):; GRANTED WITHOUT LEAVE TO AMEND as to punitive damages, which are not available for a negligent misrepresentation cause of action. (Alliance Mortgage Co. v. Rothwell.(1995) 10 Cal.4th 1226, 1241.) GRANTED WITH LEAVE TO AMEND as to emotional distress; plaintiff must plead more than the vagaries of trial. (See, e.g., Merenda, 3 Cal.App.4th at 1] ("[llitigation is almost always distressing for litigants.").} Prayer for relief: GRANTED WITH LEAVE TO AMEND. Regarding service of papers, plaintiff has had full opportunity to state his views on the motion’s substance and California's courts generally decide disputes on their merits. IT IS SO ORDERED. Dated: #/on fag d bL4h, (Yleser) Judge of the Superior Court RICHARD ULMER -2- [PROPOSED] ORDER GRANTING DEFENDANT RICHARD T. FRANCHESCHINI, PATRICK M. MACIAS AND RAGGHIANTI FREITAS, LLP'S MOTION TO STRIKE PUNITIVE AND EMOTIONAL DISTRESS DAMAGESExhibit 224 25 FRANK I. MULBERG (SBN 072038) In Pro Per P.O. Box 909 Mill Valley, California 94942 Telephone: (415) 388-0605 Facsimile: (415) 388-6929 Attorneys for Plaintiff Frank I. Mulberg (In Pro Per) SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO FRANK I. MULBERG Plaintiffs, vs. -00o- Case No.: CGC-18-564392 ) ) SECOND AMENDED COMPLAINT FOR ) DAMAGES FOR: ) RICHARD T. FRANCHESCHINI, PATRICK ) Legal Malpractice; Breach of Fiduciary M. MACIAS, RAGGHIANTI FREITAS, LLP ) Duty; Breach of Contract; Negligent a California limited liability partnership and Does 1 through 30 inclusive, Defendants ) Misrepresentation; Intentional Concealment (Fraud); Unjust Enrichment; Punitive Damages 1 SECOND AMENDED COMPLAINT FOR DAMAGESPlaintiff Frank I. Mulberg aka. Mulberg Law Firm (“Mulberg”) brings this action against} defendants Richard T. Franceschini, Patrick M. Macias and Ragghianti Freitas LLP (collectively “Defendants”) and alleges as follows GENERAL ALLEGATIONS 1, Plaintiff is, and at all times herein mentioned in this claim, was an individual residing in Marin County, California. 2. Plaintiff is informed and believes, and on that basis alleges, that Defendant Richard T. Francheschini, at all times herein mentioned was a resident of the City and County of San Francisco, California, and is authorized to practice law in the State of California. 3. Plaintiff was the former trustee of the Patricia Davis Daneman Amster 2009 Irrevocable Trust (hereafter referred to as “PDDA Trust”) and was represented by Defendants as his attorney in the following Marin Superior Court trial matters related to and arising from the litigation, Docket number PRO 140334 (hereafter referred to as “Amster Trust Trial Matters” or “Amster Trust Litigation Matters”) : Trustee’s Petition for Approval and Settlement of Accounts and for Instructions; Jn Re The PDDA Trust, Petitioner Patricia D. Amster, Beneficiary v. Respondent Frank I, Mulberg, Trustee and related cross-actions; Trustee’s Petition for Trustee fees and Attorney fees; and Opposition to Beneficiary Amster’s Petition for Attorney fees, etc. 4. Defendant Franceschini, based upon information and belief at all relevant times herein mentioned was a partner engaged in the practice of law in the law firm of Ragghianti Freitas LLC (hereafter referred to as “RF LLC”), Defendant Franceschini specialized in Estate and Trust| Litigation and Estate Planning and Probate areas as a partner in RF LLC, and at all relevant times} herein mentioned was authorized to practice law in the State of California. Defendant Franceschini, at all relevant times, represented Plaintiff during both the Amster Trust Trial Matters and the Amster Appeals. 2 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 5, Based upon information and belief, at all relevant times herein mentioned, Defendant RF LLC (also referred to as “Firm”) is a California limited liability law partnership authorized to practice law in the State of California, practices law throughout the bay area and has an office located in Marin County, California. Plaintiff is informed and believes and thereupon alleges that Defendant RF LLC is, and at all'times herein mentioned was, duly registered and licensed with the appropriate state agencies to practice law in the State of California, 6. Defendant Patrick M. Macias, based upon information and belief at all relevant times herein mentioned was a partner in the practice of law in the law firm of RF LLC and acted, at times, as a partner of RF LLC and/or in his individual capacity practicing law with RF LLC in representing Plaintiff during both the Amster Trust Trial Matters and the Amster Appeals. Defendant Macias, at all relevant times herein mentioned was authorized to practice law in the State of California, and was selected by Defendant Franceschini to assist him with RF LLC’s representation of Plaintiff as set forth herein. 7. Plaintiff is informed and believes, and based thereon allege that at all times mentioned herein, Defendants, and each of them, were acting as agents, servants, employees, partners and/or principals of each other (including any fictitious named defendants) and, in committing the acts and omissions alleged hereinafter, were acting within the course and scope of their duty and authority with the permission, knowledge, consent, and ratification of each of the remaining Nefendants. 8. The representation of Plaintiff by Defendants in the Amster Trust Trial Matters began in late December 2013, and ended on or about July 2017 after the related appeals mentioned herein were concluded. 9. During the Amster Trust Trial in the courtroom of the Honorable Mark A. Talamantes. after the trial had proceeded for a number of days, Defendant Patrick Macias on June 3, 2015, without advising Plaintiff, made an oral motion to disqualify Judge Mark Talamantes under 3 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 California Code of Civil Procedure Section 170.1. The judge refused to recuse himself, informed Defendant Macias to make the motion in writing, which was then submitted on June 4, 2015, and the trial was put in recess. 10. Judge Talamantes on June 9, 2015, by order, under CCP section 170.4 caused the trial to proceed despite the fact that Defendants filed a Writ Petition (Docket no, A145364) for removal of Judge Talamantes, which Writ Petition was ultimately denied by the Court of Appeal and the trial court docket reflects such denial by entry on June 16, 2015 of the appellate court’s opinion of June 12, 2015. Judge Talamantes was visibly disturbed during the remainder of the trial by Defendants’ oral motion for recusal and removal, and subsequent filing of the Writ Petition with the Court of Appeal. 11. Plaintiff was further represented by Defendants through the related post trial appeals (hereafter referred to as “Amster Appeals” docketed respectively as A146374, A146978 and A147574) arising from the Amster Trust Trial Matters, which representation concluded shortly after June 26, 2017 when the Marin Superior Court approved by Order the parties’ stipulation to waive costs after Remittitur from the California Court of Appeal. 12. Plaintiff is ignorant of the true names and capacities of defendants sued herein as Does 1 through 10, inclusive, and therefore sue these defendants by such fictitious names. Mulberg will amend this Complaint to allege their true names and capacities when ascertained. Mulberg is informed and believes and thereon alleges that each of the fictitiously named defendants is responsible in some manner for the occurrences and actions herein alleged, and that Plaintiff's damages as herein alleged were proximately caused by such defendants. 13. Atall times mentioned in this Complaint, based upon information and belief, Does 11 through 30 were the agents, servants, employees, partners or joint venturers or alter egos of the other named Defendants, and, in doing the things alleged in the Complaint were acting within] 4 SECOND AMENDED COMPLAINT FOR DAMAGESthe course and scope of such agency, partnership or joint venture with the permission, knowledge and consent of such other named Defendants. 14. On or about December 23, 2013, Plaintiff received an Attorney Engagement Letter (“Attorney Agreement”) , dated December 23, 2013 crafted by Defendant Franceschini of RF LLC (Firm). which Attorney Agreement provided Plaintiff retained and employed defendant Franceschini and Defendant RF LLC (Firm) to represent Plainitff as his attorney with respect to all matters pertaining to Plaintiff in his capacity as the trustee of the Patricia Davis Daneman Amster 2009 Irrevocable Trust and related matters therein. After signing the letter, Plaintiff by U.S Mail and electronically sent the signed letter back to RF LLC (Firm) on or about December 23, 2013. A true and correct copy of Defendants’ Attorney Agreement of December 23, 2013, signed by Defendant Franceschini on behalf of RF LCC is attached hereto and incorporated herein as Exhibit “1.” The Exhibit 1, Attorney Agreement was also signed by the Plaintiff. 15. At the time and place of Plaintiffs mailing of such signed Exhibit 1, Attorney Agreement, Defendants’ accepted such employment and agreed to perform such services for Plaintiff, Defendant Franceschini, previous to the signing of such Exhibit 1, Attorney Agreement, by Plaintiff represented to Plaintiff that he (Franceschini) was an expert in litigation of trust disputes between trustees and beneficiaries, trust administration matters and that he had extensive experience in these areas. Defendant Franceschini further represented at that time that he had practiced extensively in the Marin Probate Court and was familiar with its judicial officers. Plaintiff relied upon such representations in retaining Defendant Franceschini of RF LLC (Firm). Defendants’ continued their representation of Plaintiff until approximately July 2017, which representation concluded shortly after June 26, 2017, after the Marin Superior Court approved by Order the parties’ stipulation to waive costs after Remittitur from the California Court of Appeal. 5 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 16. Pursuant to the terms of Defendant’s Exhibit 1, Attorney Agreement, Defendants were responsible for performing all of the legal services contemplated under the agreement, keep client informed of progress and developments, evaluate settlement offers for the benefit of Plaintiff, disclose all of the risks, hazards and areas of exposure of the case to Plaintiff, disclose each and every conflict of interest, maintain loyalty to their client, and respond promptly to Plaintiff's inquiries and communications in a competent manner. 17. At all times thereafter, Defendants and each of them, failed to exercise reasonable care and skill in performing those legal skills for Plaintiff related to matters as set forth herein to the Amster Trust Trial Matters, the Amster Appeals, and including but not limited to settlement offers arising therein pertaining to In Re The PDDA Trust. 18. Beginning on the date of representation in December 2013, and thereafter continuing on throughout the Amster Trust Litigation Matters and the Amster Appeals, Defendants failed to advise, inform and disclose to Plaintiff the potential dollar exposure and risks of the litigation, individual liability and financial consequences, surcharges that could arise from the claims, professional reputational consequences, potential involvement of the State Bar, estimate of attorneys’ fees and costs, time and costs necessary for Plaintiff and his staff to put forth to assist attorneys in defending his Statement of Accounts and against the other claims of Amster, potential loss of income to his professional practice as an attorney and a CPA, credit standing damages, interest and financing needs, and consequences of liens from any judgment that could result should Patricia Amster as beneficiary of the PDDA Trust prevail on her alleged theories and claims against the Plaintiff as former trustee. 19. On or about the commencement of the representation, Defendants became aware that Plaintiff, in his capacity as trustee of the PDDA Trust pursuant to the terms of the Trust Declaration executed by Arlene Davis (Amster’s mother) the Settlor/Trustor/Trustee of the PDDA Trust was appointed as successor trustee by Patricia Amster, beneficiary, after the death 6 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 of her mother in September 2011; and that Plaintiff billed trustee fees on an hourly basis at his customary hourly rate in accordance with the Trust Declaration fee compensation terms permitting such. Defendants, beginning on the date of representation and continuing thereafter never advised, mentioned or disclosed to Plaintiff that his fees were not governed by the Trust Declaration compensation provisions. Nor did Defendants ever advise or disclose to Plaintiff that the Plaintiff trustee’s fee compensation as set forth by the terms of the Trust Declaration were or could be limited, modified, revised or governed other than by the of the Trust Declaration contract, itself. A true and correct copy of the Patricia Davis Daneman Amster 2009 Irrevocable Trust Declaration (“Trust Declaration”) is attached hereto and incorporated herein as Exhibit “2.” 20. Defendants never disclosed, advised or informed Plaintiff that the terms of the trustee} fee provisions in the Trust Declaration contract were subject to modification, limitation, revision, and were controlled and/or trumped by Local Marin County Rules, despite any California statute or case law, otherwise. 21. Defendants never disclosed, advised or informed Plaintiff that trustee compensation based up the terms of the hourly fee provisions in the Trust Declaration could be substantially reduced by a court despite the fact the amount of the hourly fees were less or lower than what a Qualified Corporate Trustee would charge for the same services provided. 22. Defendants submitted to the Probate Court Plaintiff trustee’s Statements of Account for the period beginning October 1, 2011 through April 4, 2014. The Statements of Account showed that Plaintiff trustee over the two and one half years of his trusteeship was able to monetize all of the illiquid, closely held, family real property interests in the PDDA Trust, despite being governed by restrictive management and transfer/sale/redemption agreements, to over $8,000,000 in cash while realizing approximately over $4,500,000 in gains and profits for the PDDA Trust and its beneficiary. 7 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 23. Defendants never advised, disclosed or informed Plaintiff that his efforts in monetizing the PDDA Trust illiquid assets in the amount of over $8,000,000 while realizing gains and profits of over $4,500,000 through sales, purchases, rents and redemptions of assets in partnerships and tenancies in common with dysfunctional family members and complex administrative trusts of Amster’s deceased parents, would not afford him his hourly compensation for his services under the trustee fee compensation terms of the Trust Declaration contract. 24. Defendants never advised, disclosed or informed Plaintiff that the total amount of the hourly fees he billed in his capacity as trustee of the PDDA Trust pursuant to the trustee fee compensation terms of the Trust Declaration contract could not exceed the amount allowed by the Marin County Local Rule based upon an annual percentage fee of approximately 8/10" of 1% of the carry value of the assets despite such Local Rule being contrary to the fee compensation terms of the Trust Declaration Contract. 25. Defendants never advised, disclosed or informed Plaintiff that he would be precluded from receiving any hourly trustee fee pursuant to the trustee fee compensation provision of the Trust Declaration contract for services related to the purchase or sale of real estate assets interests therein, for the sale and/or redemption of business partnerships holding real estate and other assets, for management related services as an active trustee partner in the numerous dysfunctional family businesses, and all services related to the aforementioned activities. Defendants never advised, disclosed or notified Plaintiff that the only trustee fee he would be allowed to receive would be, or is, based upon an annual percentage fee of approximately 8/ 10% of 1% on the carry value of the assets pursuant to the Marin County Local Rules. 26. Neither Defendant Franceschini or Macias, at all relevant times herein, ever advised, disclosed or informed Plaintiff that the trustee’s hourly fees billed for trustee services (in such capacity) related to the PDDA Trust pursuant to the Trust Declaration contract involving the 8 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 purchase and sale of real estate assets and interests therein, sale and redemption of business interests, management of assets as a trustee partner and all related activities therein, are not compensable in the same amount they would be calculated for a Qualified Corporate Trustee using percentage fees for such services, or other manner based upon the Corporate Trustee’s published fee schedule. Nor did Defendants inform Plaintiff that the Marin County Local Rules precluded Plaintiff from receiving and being entitled to any trustee fee compensation on an hourly basis that exceeded an annual fee of approximately 8/ 10" of 1% of the carry value of the PDDA Trust assets. Had any of the Defendants advised Plaintiff that the Marin County Local Rule limited Plaintiffs trustee fees and controlled the Exhibit 2, Trust Declaration, whose terms allowed hourly billing at the customary attorney or CPA hourly rate, Plaintiff would have settled the case as such made it unnecessary to have a trial, at all, on the issue of the amount of trustee fees under the terms of the Trust Declaration. 27. Defendant Franceschini negligently advised Plaintiff that the Statements of Account submitted and signed off by Defendants were proper, in order, and would be approved by the court without any substantial adjustments, which they were not. / 28. Defendant Franceschini was negligent and failed to exercise reasonable care in preparing and reviewing the Statements of Account for the 2 % years of Plaintiff's trusteeship, including its defense, causing Plaintiff to suffer damages, such as, but not limited to the following: a. Numerous objections by Amster to Plaintiffs Statements of Account causing excessive attorney time charges by the Defendants, unnecessary and costly discovery disputes, abandonment of Plaintiff's discovery motions to compel without receiving any benefit, and excessive time demands made upon Plaintiff in his capacity as former trustee for which the probate court judge did not reimburse him from the PDDA Trust in defending his Statements of Account. 9 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 29, Defendant Franceschini and Macias were negligent and failed to exercise reasonable care by not taking the deposition of Marlene Getchell, Esq., successor trustee of the PDDA Trust Trust’s, its expert witness, which prejudiced Plaintiff's defense, in that, her material relevant testimony could not be contradicted, nor could she be impeached, thus resulting in allowing Judge Talamantes to rely heavily on such testimony to the detriment of the Plaintiff, as memorialized in the judgment against Plaintiff. Had the Defendants not failed to take the deposition of this expert and material witness, the amount of Plaintiff's damages suffered by the judgment would have been substantially reduced, and possibly, eliminated in its entirety. 30. Defendant Franceschini was negligent and failed to exercise reasonable care by failing to file Plaintiff's initial Statement of Account and Plaintiff’s initial Petition for Instructions as soon as possible and no later than January 24, 2014, as requested by Plaintiff, but instead filed it on January 27, 2014 or later, one day after the filing of Amster’s Petition to Remove the Trustee; which initially sought (by notice of removal) to compel Plaintiff, as trustee, to transfer $8,000,000 of assets to nonqualified nominee successor trustees. Plaintiff's Petition for Instructions sought approval of the court for transfer of $8,000,000 of trust assets to a qualified successor trustee and not an unqualified one. Furthermore, Defendants negligently, without any legal basis, failed to exercise reasonable care by crafting a claim in Plaintiff's Petition for Instructions which argued that Amster did not have the power of appointment to remove the Plaintiff trustee because she previously removed Mechanics Bank, as successor trustee in 2011, and she was in the process in January 2014 of removing two private fiduciaries as successor trustees appointed by her in December 2013 to replace Plaintiff, as trustee. Had Defendants filed Plaintiff's initial Statement of Accounts and Petition for Instructions as promised, pursuant to Plaintiff's instructions, no later than January 24, 2014 and not inserted the diminution of Amster’s power of appointment, Plaintiff would have been the Petitioner/Plaintiff in the Amster Trust Litigation and not the Respondent/Defendant. Thus, the filing of Plaintiff's 10 SECOND AMENDED COMPLAINT FOR DAMAGESinitial Statement of Account and Petition for Instructions would not have faltered as a result of deflating Plaintiff's strategy and credibility allowing a non-actionable claim related to the power of appointment to be rejected by Judge Adams in Plaintiff's Petition for Instructions. By the time Defendants filed the Petition for Instructions on January 27, 2014 or later, Amster’s petitions were filed, the circumstances had changed, and the insertion of the improper claim by Franceschini in Plaintiff's petition poisoned and destroyed Plaintiff's credibility, which should not have occurred, but for Franceschini’s negligence. 31. Defendant Franceschini and Macias were negligent, did not exercise reasonable care, breached their fiduciary duty and duty of loyalty to Plaintiff by having him proceed by going through a trial to prove up the basis of his hourly trustee fees under the terms of the Exhibit 2, Trust Declaration, by failing to advise, disclose or inform Plaintiff of the Marin County Local Rule limiting trustee fees, exclusively to an annual fee of 8/ 10" of 1% based upon the carry value of the assets. Had Plaintiff been informed by Defendants that he could not succeed on his claim to prove up the validity of his hourly trustee fees pursuant to the terms of the Exhibit 2, Trust Declaration Contract, he would have settled the case at the outset without the need for any Petitions for Instructions, Settlement of Accounts, discovery, motions, probate trial and appeals. 32. Plaintiff, on or about December 23, 2013, received a letter from Amster’s attorney, Henry Froneberger, that Amster as the beneficiary of the PDDA Trust, was exercising her right to remove Plaintiff , as trustee, and appoint two private fiduciaries in his place, and that he was to henceforth transfer all of the Trust assets (valued at $8,000,000) to these private fiduciaries. Attached hereto and incorporated herein as Exhibit 3 is a true and correct copy of a letter, dated December 20, 2013, from Henry Froneberger, Patricia Amster’s attorney, received by Plaintiff. A copy of the Exhibit 2, Trust Declaration contract, and Exhibit 3 letter of removal from Amster’s attorney was then transmitted electronically to Defendant Franceschini. 1 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 33. At or about the time of the receipt of the Exhibit 2 and 3 documents, Defendant Franceschini was negligent, did not exercise reasonable care, breached his fiduciary duty and duty of loyalty to Plaintiff by failing to advise, inform or disclose to Plaintiff that he should resign and transfer all of the assets in the PDDA Trust to Amster’s private fiduciaries as successor trustees of the PDDA Trust because if he was removed by the court, even without cause, based on Amster’s exercise of her power of appointment to do so, it was highly likely neither Plaintiff as trustee, and/or his attorneys would be entitled under the law to reimbursement for fees from the PDDA Trust for services rendered by the trustee and Defendant attorneys in defending Plaintiff’s Statements of Account and other claims of beneficiary Amster, as well as services related to Plaintiff's own Petition for Instructions. Had Plaintiff been advised and informed by any of the Defendants of such that he should resign and transfer all of the PDDA assets to Amster’s successor trustees, he would have done so prior to any petition for removal being filed by Amster and prior to the filing of Plaintiff's Petition for Instructions and Statements of Account. 34. The probate court rendered its judgment of $306,000 against Plaintiff and it was affirmed by the Court of Appeal. The appeal court also affirmed the separate order of the probate court denying any reimbursement of trustee fees and attorneys’ fees to Plaintiff in defending his Statements of Account and defense against Amster’s claims, as well as fees related to Plaintiff's Petition for Instructions. 35. Defendants breached their duty of loyalty and fidelity to Plaintiff by allowing, based upon information and belief, their own self- interest to conflict with the interests of Plaintiff as their client by unconscionably billing Plaintiff for over $300,000 in fees and costs while committing numerous negligent acts and omissions as set forth herein, and not advising, disclosing or informing him that that he could not have his trustee fees approved by the court in the amount billed to the PDDA Trust pursuant to the terms of the Trust Declaration contract on 12 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 an hourly basis because they exceeded the annual amount limited by the Marin County Local Rule. Nor did Defendants advise, disclose and inform Plaintiff, at all relevant times, that if he was removed as trustee by Amster under her power of appointment or otherwise, and did not resign beforehand, there was a substantial risk that neither Plaintiff and/or Defendants would be able to have any reimbursement from the PDDA Trust for their respective services as administrative expenses (fees) approved by the probate court incurred in defense against Amster’s claims. 36. Plaintiff relied upon the advice, skills, expertise, loyalty and contractual relationship of and with Defendants in his representation as related to the matters concerning the Amster Trust Litigation Matters and related three appeals pertaining to Plaintiff's trusteeship. 37. Plaintiff paid Defendants approximately $160,000 in legal fees and. costs pertaining to the Amster Trust Litigation Matters and Amster Appeals. Defendants continue to send bills to Plaintiff that do not reflect many of the payments made by Plaintiff, and they allege approximately $147,000 is currently still outstanding. (a) Defendants further failed to credit Plaintiff's account with many payments made and continue to seek collection on these inflated outstanding bills, despite being informed by Plaintiff] of their improper and unconscionable billing practices. (b) Defendants fraudulently billed Plaintiff excessively over and above the hourly rates set forth in their own Attorney Agreement (Exhibit 1) without the consent of Plaintiff. 38. Had Defendants, at all relevant times, advised, disclosed or informed Plaintiff that his hourly trustee fees billed to the PDDA Trust under the Exhibit 2, Trust Declaration contract, could not exceed 8/10" of 1%, he would not have litigated the issues that Defendants advised him to litigate, but instead would have settled the case. Further, had Defendants, at all relevant times, advised, disclosed or informed Plaintiff as to the risks associated with being removed as trustee, even without cause based upon Amster’s exercise of her power of appointment as 13 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 possibly precluding, (and actually did) reimbursement of trustee and Defendants’ services related to the Amster Trust Litigation and appeals, Plaintiff would not have litigated the issues that Defendants advised him to litigate, but instead would have settled the case. 39, As a further direct and proximate cause of Defendants’ wrongful conduct as alleged herein, Plaintiff has paid and incurred liability for Defendants attorneys’ fees and costs in an amount exceeding over $300,000 that would not have been incurred had the Defendants not been negligent, breached their fiduciary duties, including the duty of loyalty and fidelity in representation of the Plaintiff. 40. Asa further direct and proximate cause of Defendants wrongful conduct, Plaintiff has suffered damages that have resulted in having to give up his business office, scale down his professional practice as a result of liquidity and cash flow management problems stemming from the inability to generate professional income or to supplement it by way of borrowing due to poor debt to income ratios making borrowing difficult and more costly, The payment of the judgment of approximately $306,000, payment of Defendants attorneys’ fees and costs related to the Amster Trust Litigation Matters and appeals financed by Plaintiff has resulted in a financial catastrophe. The exact amount of these damages will be proved up at trial. 41. Plaintiff in his capacity as trustee for the PDDA Trust during the Amster Trust Litigation Matters and three appeals assisted Defendants on a foundational basis as a necessity throughout the probate court litigation and three related appeals. As a direct and proximate cause of Defendants wrongful conduct, Plaintiff would not have had to assist Defendants in defending Plaintiff's Statements of Account and the other claims brought by Amster, as well as the prosecution of the many issues in the Petition for Instructions, had Defendants not been negligent. Asa direct and proximate cause of Defendants’ negligence, Plaintiff incurred over a three and a half year period, approximately $400,000 in time charges that would otherwise have been reimbursed by the PDDA Trust, but as set forth herein, were not approved by the court, 14 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 Plaintiff would not have litigated these issues that Defendants advised him to litigate, or assisted Defendants on a foundational basis, but instead, would have settled the case had Defendants not been negligent. The time spent in defending the aforementioned issues in the Amster Trust Litigation Matters and Amster Appeals caused severe financial strain on Plaintiff's practice, as Plaintiff was unable to generate enough professional income given the time constraints that existed. 42, Asa further direct and proximate cause of Defendants wrongful conduct Plaintiff suffered damages in the amount of approximately $450,000 related to loss of the ability to earn professional income resulting from deployment of time, energy and financial resources to the Amster Trust Litigation Matters and Amster Appeals over a three and a half year period. In addition, Plaintiff paid the judgment and attorneys’ fees and costs. The exact amount of the losses and damages suffered by Plaintiff will be proved up at trial. The aforementioned loss resulted from Plaintiff's difficulty in being able to manage the financial needs of the practice going forward without sufficient cash flow as a result of and from efforts related to the Amster Trust Litigation Matters and appeals. There was limited time to be able to service existing clients, or devote adequate time to obtain new clients, all which, would usually have provided cash flow to be able to manage and pay professional and personal expenses. Had Defendants not been negligent and breached their fiduciary duties to Plaintiff as set forth herein, Plaintiff would not have suffered the financial catastrophe caste upon him. 43. Plaintiff's time and efforts was further expended as a proximate cause of Defendants negligence and breach of fiduciary duty as set forth herein when, beginning on or about June 2015 when Amster, through her counsel, filed a complaint with the California State Bar Examiner’s Office (“SBE”) against Plaintiff. Plaintiff spent a substantial amount of his time and effort in defending this matter over the next six months with the SBE to get it resolved. Had 15 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 Defendants not been negligent and breached their fiduciary duty as set forth herein, there would have been no need for any of the Amster Trust Litigation and appeals. 44. Asa further direct and proximate cause of Defendants’ wrongful conduct as set forth herein, Plaintiff had a judgment against him, along with judgment liens recorded against his| real property and home restricting his ability to refinance the mortgages on the property in order to continue to pay the expenses of the professional practice and his personal living expenses, such as, but not limited to mortgages and real property taxes. The exact amount of damages related to losses attributable to credit standing issues will be proved up at trial. 45. Asa further direct and proximate cause of Defendants’ wrongful conduct as set forth herein, such as but not limited to and related to imposition of liens on Plaintiff's real property and home, abandonment of his long time professional office at 655 Redwood Highway, Mill Valley, California, prohibition on his ability to refinance his real property due to the judgment against him, loss of practice income, downsizing and diminishment of his practice, lack of income to pay personal and business expenses, reputational damage, dealing with a complaint to the SBE, having to defend an appeal with the Court of Appeal seeking over $500,000 of attorney fees by Amster (just in the Amster Litigation Matters without appeals) that would have caused Plaintiff to sell his home had he not prevailed, all have contributed to suffering disorder of his nervous system, humiliation, mental anguish, embarrassment, emotional distress and has been injured in mind and body, the exact amount to be proved up at trial. Had Defendants not been negligent and breached their fiduciary duty as set forth herein, there would have been no need for} any of the Amster Trust Litigation and Amster Appeals, and Plaintiff would not have suffered the damages mention herein. 46. Defendants negligently advised at the onset of the representation that the Plaintiff trustee would be entitled to, and would receive from the PDDA Trust, all of his trustee fees and costs incurred for any time related to his defense of the Statements of Account, pursuing the 16 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 trustee’s petition for instructions and expended in defending Patricia Amster’s alleged claims against the trustee. Defendants negligently represented to Plaintiff that California law provides that the PDDA Trust will be responsible for paying both the Plaintiff trustee and Defendant attorneys for all fees and costs incurred in defending against the Patricia Amster’s alleged claims against the trustee as such services are part of the customary trust administration. 47, Defendants failed to advise, disclose or inform Plaintiff that should Patricia Amster as beneficiary of the PDDA Trust prevail on her alleged theories and claims against the Plaintiff as former trustee, Plaintiff could be surcharged as an adjustment under the Trust Declaration contract the difference between the approximate $434,000 he was paid for trustee fees during the 2 % years of his trusteeship reduced by the trustee fee calculated based the annual fee of 8/10" of] 1% of the carrying value pursuant to the Marin County Local Rule, which trumps the Trust Declaration contract hourly fee provisions. This difference amounted to approximately $205,000. 48. In addition, Defendants failed to advise, disclose or inform Plaintiff that approximately $62,000 in prior attorney and CPA fees incurred by Patricia Amster, individually, for her own personal benefit, incurred and outstanding before and not related to Plaintiff's appointment as being trustee of the PDDA Trust, but were paid from the PDDA Trust (with her consent) and treated as a distribution in the Statement of Account, could be inadvertently mistaken as trustee fees should Amster prevail on the other claims. The $62,820 was falsely alleged by Amster at trial as being trustee fees (despite there were no trustee billings presented in| evidence as to that effect at the trial as to such amount), and included by the court as being a trustee fee paid to Plaintiff, which it was not. Defendants failed to present at trial any evidence on direct, cross-examination or by way of rebuttal to establish that the $62,820 was not trustee fees, but instead were legal fees owed to Plaintiff by Amster, individually for her own personal benefit, and not related to his trusteeship. Defendants were aware that the court had by minute 17 SECOND AMENDED COMPLAINT FOR DAMAGESorder prior to trial, designated the issues in the case as pertaining to a dispute, exclusively, about trustee fees and not related to legal fees owed to Plaintiff by Amster for non-trusteeship matters. 49, In February 2017, after the Court of Appeal affirmed the probate court judgment and the California Supreme Court denied review, Plaintiff paid the judgment which represented damages suffered by Plaintiff related to the Exhibit 3, Trust Declaration contract trustee fee adjustment, as alleged and referred to in Paragraphs 47 and 48 in this Complaint in the amount off approximately $267,000 ($205,000 and $62,000), plus interest thereon in the amount of $39,000, or a total of approximately $306,000, the exact amount to be proved at trial. As set forth herein, as a direct and proximate cause of Defendants’ fiduciary breach and negligent acts and/or omissions in their failure to exercise reasonable care and skill in their investigation, advice and conduct, Plaintiff suffered damages equal to the amount paid on the judgment and interest therein, the exact amount to be proved at trial. 50. Defendants, on or about October 2014, without contacting Plaintiff as to his availability, failed to advise, disclose and inform Plaintiff that they were appearing for the setting} of atrial date for the Amster Trust Trial Matters with the Honorable Verna A. Adams, and despite having knowledge that Plaintiff was going out for trial in a complex estate and trust contest set for January 21, 2015, without permission or consent of Plaintiff, set the Amster Trust litigation for the same date, Defendants breached their fiduciary duty to Plaintiff by setting the Amster trial date for their convenience, while causing Plaintiff undue stress and anxiety while impeding his ability to adequately be available to assist in preparing the case for trial. After Defendants’ failed attempts to relieve Plaintiff of a trial double setting by seeking a continuance, Judge Adams kept the January 21, 2015 trial date and only removed it from the calendar when Plaintiff contacted the court on January 21, 2015 and informed Judge Adams that he was going out for trial in another county on January 21, 2015. 18 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 51. Asa result of Defendants breach of fiduciary duty, by the time another convenient trial date in February could be obtained, Judge Adams informed Defendants that she was moving! from the Probate Department and would be replaced by the Honorable Mark Talamantes. 52. Defendants, were familiar with the Marin County judiciary, and informed Plaintiff that although they were aware that Judge Talamantes had no probate experience and this was a complex case, they had heard that because of his prior experience as an employment attorney and) although he had limited experience on the bench in Marin, he did grant attorneys high fee awards. Thus, since they believed he could grant high attorney fee awards and was the only probate judge, Defendants did not want to exercise a challenge under CCP § 170.6, and decided not to use a peremptory challenge. 53. Based upon information and belief, and on that basis, Plaintiff alleges that Defendants breached their fiduciary duty to Plaintiff by not removing Judge Talamantes for a number of reasons, such as but not limited to the following: a. Defendants practiced extensively in the Marin Probate Court, had many matters in that court and to exercise a preemptory challenge to remove the judge would not benefit their interests or the interests of their other clients. In effect, this alone was an actual conflict of interest and breach of loyalty that was not disclosed to Plaintiff along with any consequences that detrimentally could cause damages to Plaintiff by not removing the judge; which ultimately did cause substantial damage to Plaintiff. b. It was not until after the conclusion of the trial and after a judgment was rendered against Plaintiff in the Amster Trust Litigation Matters that Defendants informed Plaintiff that Judge Talamantes had a prejudice and bias against Ragghianti Freitas LLP and its attorneys, that existed prior to the commencement of the Amster Trust Litigation Matters. Plaintiff was informed by both Defendant Macias and Franceschini that one of the RF LLC firm attorneys had disrespected Judge Talamantes wife, or conduct to that effect. After the conclusion of the 19 SECOND AMENDED COMPLAINT FOR DAMAGES24 25 Amster Trust Trial, based upon information and belief, Judge Talamantes on or about December 2015, acknowledged his prejudice by informing one of the managing partners at RF LLC at a social event that one of RF LLC’s attorneys had disrespected his wife. Had Plaintiff been informed by Defendants prior to the commencement of the Amster Trust litigation, he would have demanded the removal of Judge Talamantes. Defendants breached their fiduciary duty of loyalty for their own self- interest by failing to remove the trial judge presiding over the case and by intentionally concealing from Plaintiff and failing to disclose to him the prejudice and bias of the trial judge against the RF LLC attorneys; as well as Defendants intentionally concealing other conflicts of interest as set forth herein. c. Defendants failed to advise, inform or disclose to Plaintiff at the onset of the Amster Trust Litigation Matters, or at any other relevant time thereafter, that Plaintiff should inform his carrier to appoint panel counsel to represent Plaintiff when they saw Amster’s petition containing| claims against Plaintiff seeking to surcharge the former trustee for fiduciary breach, embezzlement, fraud and punitive damages. Defendants failure to advise, inform, or disclose as set forth herein was intentionally perpetrated to further their own self-interest, such as, but not limited to believing that the probate court judge would award them fees from Amster Trust based| upon their own hourly billing rate of $390 per hour for each attorney as an administrative expense of the PDDA Trust. Plaintiff, based upon information and belief, at all relevant times alleges