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STEVEN J. HORN
LAW OFFICES OF $'
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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
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Mr. John C. Schaller
16 Law Offices of John C. Schaller
1458 The Esplanade
17 Chico, CA 95926
Attorney for Petitioner Christopher Turk
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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
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