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  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
  • Maynard James Van Ert 2008 TrustDecedent's Estate document preview
						
                                

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STEVEN J. HORN LAW OFFICES OF $' E Ry GH? iene, 15760 Ventura Boulevard, Suite 1520 y= Superior vourtot California = Encino, California 91436-3095 Telephone: 818 385-1050 I Countv of Butte | Facsimile: 818 385-0351 L SEP 22 2017 L Attorney for Objector E MICHAEL VAN ERT, TRUSTEE FOR Clerk [FD THE MAYNARD JAMES VAN ERT By Deputy 2008 TRUST, DATED JUNE 24, 2008 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF BUTTE - UNLIMITED CIVIL JURISDICTION 10 11 12 INRE: Case No. PR 41511 13 (Petition filed July 10, 2015) THE MAYNARD JAMES VAN ERT 14 2008 TRUST, dated June 24, 2008 OBJECTOR/TRUSTEE’S REPLY TO PETITIONER CHRISTOPHER TURK’S 15 OPPOSITION TO OBJECTOR/TRUSTEE MICHAEL VAN ERT’S MOTION FOR 16 CHRISTOPHER TURK, SANCTIONS AGAINST PETITIONER AND HIS COUNSEL JOHN SCHALLER 17 Petitioner, 18 DATE: October 6, 2017 TIME: :0 a.m. 19 COURTROOM: 3 20 JUDGE: Hon. Stephen E. Benson 21 22 ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 23 Comes now, Objector Michael Van Ert, Trustee for the Maynard James Van Ert 2008 24 Trust, Dated June 24, 2008 (hereinafter “Trustee”), and replies to Petitioner’s Opposition to the 25 Objector/Trustee’s Motion to for Sanctions. 26 Mt 27 28 -1- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER’S OPPOSITION TO MOTION FOR SANCTIONS DATED: September 21, 2017 LAW OFFIZES OF STEVEN J. HORN By leven. , Attorney for Objector MICHAEL VAN ERT, TRUSTEE FOR THE MAYNARD JAMES VAN ERT 2008 TRUST, DATED JUNE 24, 2008 Van Ert (Turk).reply-opp-motionforsanctions.reply 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER’S OPPOSITION TO MOTION FOR SANCTIONS MEMORANDUM OF POINTS AND AUTHORITIES 1 INTRODUCTION. Petitioner Christopher Turk’s (“Petitioner”) Opposition to the Motion for Sanctions by Trustee Michael Van Ert (“Trustee”) is merely a “cut and paste” reiteration of his specious Renewed Motion to Disqualify Steven Horn from acting as counsel for the Trust. There are no new facts that support the Renewed Motion to Disqualify Steven Horn from acting as counsel for the Trust, and the opposition adds nothing new. The issues before this Court have already been briefed. Petitioner’s Renewed Motion to Disqualify Attorney Horn was previously heard and 10 adjudicated based the same allegations and arguments proffered by Petitioner, which was that 11 Attorney Horn is merely furthering the agenda of Josephine De Ungria, and not the Trust. De 12 Ungria has her own attorney. 13 Petitioner wants Attorney Horn thrown off this action because he has been an effective 14 litigator in the previous matters regarding this Trust. Petitioner’s reasoning is that because De 15 Ungria will benefit from Petitioner losing his Petition, then Attorney Horn must in reality be 16 working for De Ungria, the decedent’s spouse. However, if the Trustee believes that the terms of 17 the Trust stated that De Ungria is the present beneficiary of the proceeds of the Trust’s assets and 18 that the decedent’s wishes were that Petitioner was only to receive the benefits of the Trust after De 19 Ungria’s death, then De Ungria would benefit. Therefore, Petitioner’s argument is essentially that 20 Attorney Horn should be thrown off this case because he is an effective advocate for the Trustee, 21 who is protecting the decedent’s wishes as expressly stated in the Trust. 22 Further, Petitioner’s allegations of subterfuge are nothing new. Here, the two “new facts” 23 relied upon by Petitioner are red herrings. 24 The first purported new fact, that Attorney Horn somehow represented that the probate 25 action has been closed, when it is still open, is totally bogus. The record is clear that Attorney 26 Horn never represented that the probate action was closed. As set forth in previous pleadings, the 27 probate action was opened solely to probate the proceeds of a life insurance policy. The proceeds 28 -3- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER’S OPPOSITION TO MOTION FOR SANCTIONS of the policy have been received, probated and portions were distributed to the trust. There is nothing nefarious about the circumstances. And, the probate action is still open. Nothing about these circumstances in any way establishes that Attorney Horn is trying to “shield the corpus” of the trust for the benefit of De Ungria. Turk’s allegations relating to this issue are illogical and devoid of merit. The second purported “new fact” is the fact that the Trust liquidated a promissory note that had matured and then deposited the proceeds into the checking account for the Trust. The Trust used portions of the proceeds to pay various obligations of the Trust, including Attorney Horn’s bill for legal services rendered. The fact that the Trust paid Attorney Horn’s bills from its checking 10 account is nothing new. This has been the process since Attorney Horn was hired. The Trust has 11 the power to liquidate assets as they are available to pay its obligations. There is nothing untoward 12 or nefarious about that action by the Trustee or by Attorney Horn. An attorney who is paid for 13 services is not a legal basis upon which to disqualify that attorney. Petitioner’s complaints about 14 an overdue accounting from the Trust, are not relevant to his Renewed Motion. 15 There are no new facts to support the Renewed Motion to Disqualify Horn. The Motion for 16 Sanctions was filed because the Renewed Motion to disqualify is patently unsupported and is a bad 17 faith attempt to harass the Trustee and Attorney Horn and to cause the Trust to unnecessarily incur 18 fees. Petitioner’s intent by filing the Renewed Motion is a bad door effort to coerce the Trustee to 19 settle with Petitioner in order to avoid the Petitioner from engaging in nefarious litigation actions 20 intended to bleed the Trust of its liquidity. Petitioner also clearly hopes that if the Trust is cash 21 poor, then it will not have to the financial resources to defend his Petition, which also lacks merit. 22 Petitioner’s “cut and paste” Opposition to the Motion for Sanctions, as with his Renewed 23 Motion to Disqualify, contains no new facts. Rather, it is merely a reiteration of his prior failed 24 arguments. Petitioner’s bad faith actions are obvious and apparent. 25 Il. FILING A MOTION WITHOUT MERIT SUBJECTS THE MOVING PARTY AND 26 HIS COUNSEL TO AN AWARD OF MONETARY SANCTIONS. 27 By presenting to this Court a written notice of motion, or other similar paper, counsel is 28 -4- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER’S OPPOSITION TO MOTION FOR SANCTIONS we certifying that the paper is not being presented primarily for an improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation. (Code of Civil Procedure Section 128.7(b)(1).) If a paper is presented primarily for an improper purpose in violation of Code of Civil Procedure Section 128.7(b), the attorney or party presenting the papers may be subject to sanctions. (Code of Civil Procedure Section 128.7(c), (d); Hopkins & Carley v. Gens (2011) 200 Cal. App. 4" 1401, 1417-1420.) Code of Civil Procedure Section 128.7 provides for a 21 day period during which the party submitting the improper papers may avoid sanctions by withdrawing the motion. (Code of Civil Procedure Section 128.7(c)(1).) When a party takes advantage of the safe harbor period, the 10 “statute enable courts to deter or punish frivolous filing which disrupt matters, waste time, and il burden courts, and parties’ resources.” (In re Mark B. (2007) 149 Cal. App. 4" 61,76.) Turk did 12 not take advantage of the 21 day period, instead he proceeds with his bad faith motion. 13 The Renewed Motion is devoid of merit because this Court had previously adjudicated the 14 same arguments and the same set of facts Petitioner raised in his first Motion to Disqualify 15 Attorney Horn. Now, Petitioner is merely trying to harass the Trustee and deplete the Trust’s 16 assets so that the Trustee will acquiesce to his meritless demands based on fantasies of entitlement 17 to a premature distribution of Trust assets based upon non-existent documents which Petitioner 18 argues amended the plain language of the Trust and its First Amendment. This type of 19 gamesmanship should not be tolerated. The Renewed Motion to Disqualify Horn is frivolous. 20 CONCLUSION 21 The Renewed Motion to Disqualify Attorney Steven Horn is a sham and a ruse. It is 22 nothing more than continued gamesmanship. There are no new facts. There is no new law. The 23 Motion for Sanctions should be granted against Petitioner and his counsel. 24 Mt 25 26 27 Mt 28 -5- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER’S OPPOSITION TO MOTION FOR SANCTIONS DATED: September 21, 2017 Respectfully submitted, LAW OFFICES OF STEVEN J. HORN By: St¢ven , Attorney for Objector MICHAEL V. AN ERT, TRUSTEE FOR THE MAYNARD JAMES VAN ERT 2008 TRUST, DATED JUNE 24, 2008 Van Ert (Turk).reply-opp-motionforsanctions.reply 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- OBJECTOR/TRUSTEE’S REPLY TO TO PETITIONER'S OPPOSITION TO MOTION FOR SANCTIONS Se PROOF OF SERVICE 1013a(3) CCP STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) I, Steven J. Horn, am over the age of 18 and I am not a party to the within action. My business address is 15760 Ventura Boulevard, Suite 1520, Encino, California 91436. On September 21, 2017, I served the following documents: OBJECTOR/TRUSTEE’S REPLY TO PETITIONER CHRISTOPHER TURK’S OPPOSITION TO OBJECTOR/TRUSTEE MICHAEL VAN ERT’S MOTION FOR SANCTIONS AGAINST PETITIONER AND HIS COUNSEL JOHN SCHALLER on the interested parties in this action by placing true and correct copies there in sealed envelopes addressed as follows: 10 Mr. Michael Van Ert 1386 Vallombrosa Avenue 11 Chico, CA 95926 Trustee for Maynard James Van Ert 2008 Trust Dated June 24, 2008 12 Mr. David R. Griffith 13 Law Offices of Griffith & Horn, LLP 1530 Humboldt Road, Suite 3 14 Chico, CA 95928 Attorney for Trustee for Maynard James Van Ert 2008 Trust Dated June 24, 2008 15 Mr. John C. Schaller 16 Law Offices of John C. Schaller 1458 The Esplanade 17 Chico, CA 95926 Attorney for Petitioner Christopher Turk 18 Ms. Susan Cooley 19 Oldman, Cooley, Sallus, Birnberg & Coleman, LLP Attorneys at Law 20 16133 Ventura Blvd., Penthouse Encino, CA 91436 21 Attorneys for Beneficiary Steven Van Ert 22 Mr. Miguel Muro Attorney at Law 23 14540 Hamlin St., Suite G Van Nuys, CA 91411 24 Attorney for Beneficiary Josephine De Ungri 25 Mr. Kevin O’Brien Hartog & Baer 26 Attomeys at Law 4 Orinda Way, Suite 250-B 27 Orinda, CA 94563 Attorneys for Beneficiaries American Institute for Cancer Research and Muscular Dystrophy Association Ms. Svetlana Turk 690 Leahy Street, Apt. No. 8 Redwood City, CA 94061 Beneficiary I deposited such envelopes in the mail at Encino, California. The envelopes were mailed with first class postage thereon fully prepaid. Tam "readily familiar" with firm's practice of collection and processing correspondence for mailing. It is deposited with U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than | day after date of deposit for mailing in affidavit. I declare under the penalty of perjury pursuant to the laws of the State of California that the above is true and correct. Executed on September 1, 2017, at Encino, California. 10 . Horn 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27