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Mary E. Pryce, Esq. (SBN 188443)
K,
J amay Lee, Esq. (SBN 238042)
Jennifer M. Stier, Esq. (SBN 286556)
Barulich Dugoni Law Group, Inc.
400 El Camino Real, Suite 1000
San Mateo, CA 94402
Tel: 650-292-2900
Fax: 650—292-2901
Email: mary@bd1awinc.com
j amay@bdlawinc.com
\OOO\IO’\UI-I>
Attorneys for Rebecca A. Litke, Trustee
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10
11 In the Matter of
12 THE JUDITH STOCKTON 2000
TRUST DATED APRIL 11, 2000 TRUSTEE’S OPPOSITION TO JESSE
13 LITKE’S MOTION TO VACATE TRIAL,
et. al.; REQUEST FOR SAN CTIONS
14 PURSUANT TO CODE OF CIVIL
PROCEDURE § 128.5
15
16
17
Date: February 6, 2018
18 Time: EX PARTE'
Dept: 18
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
I. INTRODUCTION
Recognizing he has no case against trustee Rebecca A. Litke (the “Trustee”) and facing an
attorney fee award to the Trustee for bad faith litigation over the Trustee’s account, moving party
Jesse Litke1 (the “Moving Party”) now seeks to request an order from the Court vacating the trial
date. This latest request comes after M continuances and two weeks before trial. In the
meantime, trial subpoenas have been served on Witnesses. The trustee’s experts have cleared
'
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their calendars for upcoming, mutually-agreed upon depositions and trial after significant
coordination. The trustee’s witnesses have made arrangements in their personal and professional
\O lives to be available for trial. The trustee, her counsel, and experts have been engaged in intense
10 trial preparation for the last several weeks. The Trustee’s counsel arranged their professional and
11 personal calendars for this month and next month around this trial. The Trustee’s counsel
12 rescheduled a medically-necessary surgery to prepare for and be available for this trial. On top of
13 all of this, critical deadlines loom in the trust administration. The Trustee cannot afford the
14 attendant costs of a trial continuance — especially when there is absolutely no reason to do so.
15 The motion for trial continuance is nothing more than a tactical maneuver to drain the trust estate,
16 so the Trustee will be forced to default. The interests of justice require that the Trustee’s claims,
17 including the claims against the Trustee, be heard on the merits without delay.
18 Pending before the Court are three distinct petitions: (l) the Trustee’s First Account and
19 Report, et. al.; (2) Moving Party’s Amended Petition for Order to Compel Trustee to Provide
20 Trust Information to Beneficiary, to Remove Trustee, and Modify Trust to Effectuate Decedent’s
21 Intent; and (3) the Trustee’s Petition for Instructions regarding the sale of Trust real property.
22 Moving Party contends on the eve of trial that the trial should be continued to allow the Trustee to
23
1
As stated in the Trustee’s verified pleadings filed with the Court, much of the litigation has been driven by Jesse
24 Litke’s father and multi-millionaire, Jeff Litke, who continues to hold a vendetta against the Trustee after she
Moreover, as feared by the trustor, it is clear Jeff Litke has been using
prevailed in a prior litigation he initiated.
25 Moving Party as a pawn in an attempt to gain back property distributed to the trustor (Jeff Litke’s ex—wife) in an
acrimonious divorce. Moving Party is represented by Jeff Litke’s attorney who, after stating Moving Party “lacks the
26 sophistication to manage any significant financial assets” proceeded to draft an irrevocable trust for Moving Party.
Unless Moving Party exercises a power of appointment referencing the express provisions in said trust, Moving
27 The trustee of Moving Party’s
Party’s estate received from his mother’s trust will be distributed to Jeff Litke.
irrevocable trust is Jeff Litke’s daughter from another woman and employee, who had no relationship with the
28 trustor.
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al.
g/
file a petition approving the second and final accounting and a petition to approve final
distribution. Neither the Trust nor the law requires the Trustee to file these petitions. More
importantly, unless Moving Party has a crystal ball or is intent on objecting to a second
accounting under any circumstance, the stated reasons are nothing but pure speculation. In other
\lONUl-D-UJN
words, Moving Party wants this Court to continue the trial due to events that have yet to occur
and may m occur.
Moving Party’s purported rationale for continuing the trial lacks merit and is disingenuous
in light of the fact that he saw fit to file (1) an extensive (but frivolous) objection to the Trustee’s
first accounting, (2) a lengthy petition to remove the trustee among other unsupported claims, and
10 (3) an objection to the Trustee’s petition to sell trust property, which the Trustee is expressly
11 authorized to do under the terms of the trust (and to which Moving Party had already consented,
12 and, in fact, previously admonished Trustee for not selling the property). If Moving Party truly
13 believed a continuance under the alleged circumstances would serve the interests of justice
14 and promote judicial economy, nothing prevented him from doing so in 2016 or 2017.
15 Moving Party contends his application is based on the fact that the trial should be vacated
16 because the alleged matters contain the same “or similar” issues, “albeit some which occur in
17 different time periods”. Moving Party further contends vacating the trial would avoid duplication
18 of evidence, having the same witnesses testify on common issues in all actions, and inconsistent
19 adjudications. Additionally, Moving Party contends continuing the trialwould promote judicial
2o economy and convenience. This is illogical and absolutely false. A judgment for the Trustee
21 on the pending petitions precludes re-litigation of the issues therein (i.e., whether the
22 Trustee’s actions during the accounting period were reasonable, Whether the trust should be
23 modified as Moving Party asserts, whether the Trustee should be removed as Moving Party
24 asserts, whether the Trustee failed to keep Moving Party informed of the trust administration as
25 he asserts, et. al.) In fact, an order settling the Trustee’s first account has a res judicata effect,
26 precluding Moving Party from re-litigating the issues therein. (See, e.g., Noggle v. Bank of
27 America, (1999) 70 Ca1.App.4th 853, 862, Lazzarone v. Bank ofAmerica, (1986) 181 Cal.App.3d
28 581, 597, Fairchild v. Bank ofAmerica, (1959) 165 .Cal.App.2d 477.)
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al.
Further delays certainly would not promote judicial economy and convenience. For one, a
judgment for the Trustee and award of attorney fees as expected may very well cause Moving
AWN Party to think twice before filing yet another fiivolous objection against the Trustee. It istelling
that Moving Party asserts he will be filing an objection to a petition for approval of a second and
final accounting, sight unseen. The first accounting is complete in and of itself. If it were not,
Moving Party was free to raise this issue in 2016, or 2017. He did not.
\DOO\IO\UI
Moreover, a judgment for Moving Para in the first accounting would assist the Court in
V
determining whether the professional fees paid in later accounting periods were properly charged
to the trust. Why would Moving Party not want this? Because he knows that if his actions during
1o the first accounting period ever came to light, the Trustee would prevail. Moving Party (or rather,
11 Jeff Litke’s) only hope of prevailing in this litigation is to outspend the Trustee. A continuance
12 on the eve of trial would allow him to do just that.
13 Fear of a significant loss at trial through one’s malicious actions is no reason to seek a
14 continuance, especially when a continuance would create substantial, undue hardship to the non-
15 moving party. This is the precise kind of trial continuance motion a Court should deny.
16
II. THE MOTION IS UNTIMELY; MOVING PARTY’S DELAY IS UNJUSTIFIED
17
AND COMPELLING EVIDENCE OF THE LACK OF MERIT TO THE MOTION
18
AND SAN CTIONS ARE WARRANTED.
19
California Rules of Court Rule 3.1332(b) requires that a party seeking a continuance do so
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“as soon as reasonably practical once the necessity for the continuance is discovered.” (See also
21
Mahoney v. Southland Mental Health Assoc. Med. Group, (1990) 223 Cal.App.3d 167, 172, “It
22
appears that appellant’s counsel failed to promptly request a continuance upon ascertaining the
23
need therefor and failed to meet the burden of establishing good cause for a continuance. In light
24
of these' circumstances, the court did not abuse its discretion in denying appellant’s request for a
25
continuance”)
26
Effective January 1, 2015, in all civil cases, the Court may order a party or counsel, or
27
both, to pay reasonable expenses, including attorney fees, incurred by the other party “as a result
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.”
(Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group), §
9:1010, citing Code of Civil Procedure §‘ 128.5(a); emphasis in Weil &' Brown.)
“Sanctions may be imposed where motions are made for purposes of delay — for example,
waiting until the eve of trial to move for an order compelling contractual arbitration without [a]
valid excuse.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The
Rutter Group), §. 9:1033, citing Zimmerman v. Drexel Burn/mm Lambert Inc., (1988) 205
CalApp.3d 153, 159.)
Moving Party’s unjustified delay in seeking an order to vacate the trial date is grounds for
10 denying it. More importantly, the delay is compelling evidence that Moving Party’s motion lacks
11 merit. If Moving Party truly believes the interests of justice and judicial economy necessitate a
12 trial continuance, he could have (and would have) filed this motion long ago. Nothing prevented
13 him from doing so. The only reason he is doing so now is to prevent the Trustee’s claims,
14 including his own fiivolous claims against the trustee, from being decided on the merits. Jeff
15 Litke is a multi-millionaire with deep pockets. The Court must not allow Mr. Litke to bully
16 someone with less financial resources into submission by sheer virtue of Mr. Litke’s wealth.
17 III. NO REASON EXISTS TO CONTINUE THE TRIAL DATE, MUCH LESS THE
18 REQUISITE GOOD CAUSE.
19 The Court may grant a continuance only on an affirmative showing of good cause
20 requiring the continuance. (California Rules of Court Rule 3.1332(c).)
21 In this case, no reason exists to continue the trial date, much less the requisite good cause.
22 Pending before the Court are three very distinct petitions. The Trustee’s first account and report
23 covers all actions reported therein, during a specific: [mite geriod — i.e.,there is no overlap as
24 Moving Party contends. It was complete enough for Moving Party to file a 30—page objection. A
25 trial continuance would not promote judicial economy. Res judicata prevents re-litigation of the
26 same issues. California courts have regularly applied res judicata in situations like here to bar a
27 disgruntled beneficiary from raising issues decided in a prior accounting. (See, e.g., Noggle v.
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
Bank of America, (1999) 70 Ca1.App.4th 853, 862, Lazzarone v. Bank of America, (1986) 181
Cal.App.3d 581, 597, Fairchild v. Bank ofAmerica, (1959) 165 Cal.App.2d 477.)
Moving Party claims that the trial date should be vacated and the Court should order the
Trustee to file a petition for approval of later accountings. Neither the Trust nor the Probate Code
requires the Trustee to file such a petition, ever. The Trustee is merely required to produce an
accounting and to distribute the assets. She is not required to file a petition. Moreover, how can
Moving Party know whether he will object to a second accounting or a third accounting for that
matter? Moving Party’s motion is based on pure speculation and no reason to continue a trial this
late in the game.
10 Moving Party’s argument for vacating the trial date in the professed interests of
11 unnecessary duplication of evidence, risk of inconsistent adjudications, and promotion of judicial
12 economy is nothing more than a red herring to disguise his real intention to beat the Trustee into
13 submission due to her lack of similar financial resources.
14 IV. FACTORS RELEVANT TO A CONTINUATION COMPEL AN ORDER
15 DENYING THE MOTION.
16 Factors identified by Rule 3.1332, relevant to the continuation determination, weigh
17 heavily in the Trustee’s favor. In ruling on a motion or application for continuance, the Court
18 must consider all of the facts and circumstances that are relevant to the determination. These may
19 include:
(I) the proximity of the trial date;
20
By stipulation of the parties, trial is set for February 20, 2018 — a mere two weeks away.
21
22 (2) whether there was any previous continuance, extension of time, or
delay of trial...
23
24 The trial has already been continued m. At Moving Party’s insistence for an earlier
25 trial date, the initial trial was set for May 30, 2017. The trial date was subsequently continued to
26 September 5, 2017. At Moving Party’s request, the Trustee agreed to stipulate to continuing the
27 trial to February 20, 2018, two weeks from today. Moving Party should not be allowed to delay
28 trial on the pending petitions yet again. The Trustee already agreed to stipulate to one
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
continuance. For the reasons discussed herein, the attendant costs under the circumstances of a
third trial continuance would severely prejudice the Trustee and would allow Moving Party to
win by sheer virtue of Mr. Litke’s deep pockets.
(3) the length of the continuance requested;
In addition to asking this Court to continue a trial shortly to begin, Moving Party asks this
Court “order the Trustee to file her second accounting and petition for its approval” and to fiirther
“order the Trustee to filer her final accounting and petition for its approval and approval of final
distribution”. These are completely improper requests. Neither the Trust nor the Probate Code
requires the Trustee to file a petition for approval of her accountings or for distributionbf Trust
10 assets. There are no petitions before the Court seeking these orders.
11 Even assuming for the sake of argument only the Court were inclined to issue an order
12 compelling file
the Trustee to subsequent accountings (without a duly noticed petition),
13 discovery on subsequent accountings would take months after such petitions were filed with the
14 Court. It took more than a year to get the first accounting to trial. Delaying trial for another year
15 or more is unreasonable by any standard, especially when there is absolutely no reason to do so.
16 (In the interim, there would still be another accounting for the this administration is
yet year
17 delayed.)
18 ‘
(4) the availability of alternative means to address the problem that gave
19 rise to the motion;
20 In this case, there isno problem. Any alleged “problem” is contrived. For example, the
21 facts allegedly giving rise to the motion have existed since 2016. As itstands, there will always
22 be the potential for future petitions because even after a trial on the final accounting, there will be
23 another petition for fees and an accounting of same. And then another petition for fees incurred
24 in the litigation over the fees. The alternative means to address the “problem” is to bring the
25 pending petitions to trialno_w. Moving Party is free to bring an action on the second and final
26 accounting if he sees fit. He will not be prejudiced in any way. Further, a judgment for the
27 Trustee, as it appears both parties believe will happen, may actually serve to deter Moving Party
28 from filing yet another frivolous objection.
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
(5) the prejudice that parties or witnesses will suffer as a result of the
continuance;
The trustee and her counsel have been in full-blown trial preparation for the last few
weeks and are ready to go on the trial date, set several months ago and per Moving Party’s
request. Witnesses have been personally served with trial subpoenas. The Trustee’s experts have
cleared
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their calendars to be available for deposition, trial preparation and trial after significant
coordination. The Trustee’s witnesses have made arrangements in their personal and professional
lives to be available for trial. The Trustee’s counsel arranged their professional and personal
calendars for this month and next month around this trial. The trustee’s counsel rescheduled a
\O
medically-necessary surgery to prepare for and be available for this trial.
10
The attendant costs of a trial continuance —
i.e., the need to re-serve witnesses, coordinate
11
dates with those witnesses, refresh and re-prepare for trial (counsel and experts), re—arrange
12
counsel’s professional and personal calendars yet again — is something the Trustee simply cannot
13
afford. Moving Party knows this and is manipulating the Court system to take advantage of this
14
fact.
15
16 (6) whether the interests ofjustice are best served by a continuance, by the
trial of the matter, or by imposing conditions on the continuance; and
17
18 The Court Leas to see how Moving Party has acted throughout the Trustee’s
19 administration. This current motion is but one more act in a long line of contemptible conduct.
20 Moving Party desperately seeks a continuance on the eve of trial because he wants to conceal his
21 actions from the Court and drag out the litigation to bleed the trust estate dry until the Trustee
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22 defaults. Moving Party makes several false, misleading, and speculative allegations in his
23 moving papers. Moving Party has been making those spurious allegations for months. 'If he truly
24 believed he could prove these allegations at trial,he could have filed a duly noticed petition for
25, surcharge and sought consolidation (or the current motion) months ago. He did not.
26 The interests of justice would not be served by a trial continuance. The- Trustee must be
27 afforded her opportunity to bring to light Moving Party’s actions as soon as possible before there
is further damage to the trust. Moving Party should not, be allowed to manipulate the Court
28
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1.
system to continue to conceal his actions. Worse, Moving Party should not be allowed to misuse
the Court system to beat the Trustee into submission by sheer Virtue of Mr. Litke’s wealth.
Here, the Trustee is facing an objection to her accounting and a petition for removal — i.e.,
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claims that the Trustee has breached her duties as trustee of the trust. The Court need only ask
itself this question: Why would someone in the Trustee’s position (as the alleged wrongdoer)
want to go to trial and why would someone in Moving Party’s position (as the alleged aggrieved
\IO\
person) want to delay trial for yet another year to some unspecified date?
(7) any other factor or circumstance relevant to the fair determination of
the motion or application. (See California Rules of Court Rule 3.1332(d).)
10
The only hope of stopping the accumulation of future petitions is a ruling on the pending
11
petitions, so that Moving Party can be held accountable for his actions. At the initial trial setting
hearing on the petitions, Moving 'Party sought an interim order removing the Trustee 0r
12
suspending her powers. The Probate Court, Judge Miram, presiding, alter reviewing the
13
voluminous pleadings. by the parties, made it very clear in no uncertain terms it was not willing to
14
15‘
remove the Trustee or suspend her powers under the circumstances, despite my requests by
Moving Party. The Court noted that while Moving Party had much to say, there was simply no
16
meat to his allegations —
i.e., there was simply no there, there.
17
Fast forward one year later and nothing has changed. Moving Party is simply trying to
18
win this case, not on the merits, but by wearing the Trustee down financially. In short, the
19
Trustee is entitled to have her claims (and the claims against her) decided on the merits without
20
further delay. Moving Party should not be allowed to manipulate the system to win simply
21
i
‘22 because he has more financial resources aVailable to him.
V. CONCLUSION
23
The Trustee received Moving Party’s papers at 2:50 pm on Monday, February 5th
24
(yesterday). Prior to serving the Trustee with the moving papers, Moving Party failed to produce
25
his designated expert for a duly noticed (and confirmed) deposition set for the same day at 9:00
26
am because the expert was “not prepared” to be deposed. Moving Party’s counsel represented
27
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under penalty of perjury in his Declaration to the Expert Witness Disclosure that his expert would
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TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al.
be “sufficiently familiar With the pending action to submit to a meaningful oral deposition”.
Moving Party’s counsel executed the Declaration six months ago. More significantly, Moving
Party also failed to show up his for his duly noticed (and confirmed) deposition yesterday
afternoon.
The pending motion is yet another delay tactic (unfortunately, one in a series) to prevent
the case against the Trustee from going to trial on the merits. Moving Party knows his petition
and objections were filed in bad faith and certain to result in an award of attorney fees to the
Trustee under the Probate Code and probate case law. Moving Party is merely misusing the
Court process to avoid this fate.
10 The Trustee respectfully requests that she be allowed to present her case and to defend
11 Moving Party’s claims against her on the merits without further delay. For the reasons herein,
12 Moving Party respectfully requests sanctions under Code of Civil Procedure § 128.5 pursuant to
13 noticed motion.2
14
Dated: February 6, 2018 Barulich Dugoni Law Group, Inc.
15
16
17
18 Attorneys for Rebecca A. Litke, Trustee of the
Judith Stockton 2000 Trust
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Moving Party attempted to bypass this Court (the Presiding Judge) from hearing its motion and submitted its
documents to the Probate Department. Consistent with the Trustee’s position regarding trust accountings and trials,
26 the probate examiner noted, “The fact that a trial is pending on one account does not preclude a trustee from filing a
petition for approval of a subsequent account or a petition to compel an account. My guess is that the court will leave
27 theexisting trial date in place, but you are welcome to bring the request to continue.”The Probate Examiner also
noted the numerous continuances in this case already — four in total. (The Court’s email correspondence is attached
28 as Exhibit A to the Declaration of J amay Lee in Support of Opposition to Motion to Vacate Trial Date, et. a1.)
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TRUSTEE’S OPPOSITION T0 JESSE LITKE’S MOTION TO VACATE TRIAL, et. al.
Preview
Mary E. Pryce, Esq. (SBN 188443) K, J amay Lee, Esq. (SBN 238042) Jennifer M. Stier, Esq. (SBN 286556) Barulich Dugoni Law Group, Inc. 400 El Camino Real, Suite 1000 San Mateo, CA 94402 Tel: 650-292-2900 Fax: 650—292-2901 Email: mary@bd1awinc.com j amay@bdlawinc.com \OOO\IO’\UI-I> Attorneys for Rebecca A. Litke, Trustee SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 11 In the Matter of 12 THE JUDITH STOCKTON 2000 TRUST DATED APRIL 11, 2000 TRUSTEE’S OPPOSITION TO JESSE 13 LITKE’S MOTION TO VACATE TRIAL, et. al.; REQUEST FOR SAN CTIONS 14 PURSUANT TO CODE OF CIVIL PROCEDURE § 128.5 15 16 17 Date: February 6, 2018 18 Time: EX PARTE' Dept: 18 19 20 21 /// 22 /// F — _ a 23 /// 5154110411221 24 /// gé’é’é’éé 25 m 1 lillllllllllllllllllllllllllllllll F __.____ ,2_.__ 26 /// 27 /// 28 /// _ 1 - TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. I. INTRODUCTION Recognizing he has no case against trustee Rebecca A. Litke (the “Trustee”) and facing an attorney fee award to the Trustee for bad faith litigation over the Trustee’s account, moving party Jesse Litke1 (the “Moving Party”) now seeks to request an order from the Court vacating the trial date. This latest request comes after M continuances and two weeks before trial. In the meantime, trial subpoenas have been served on Witnesses. The trustee’s experts have cleared ' OO\]O\ their calendars for upcoming, mutually-agreed upon depositions and trial after significant coordination. The trustee’s witnesses have made arrangements in their personal and professional \O lives to be available for trial. The trustee, her counsel, and experts have been engaged in intense 10 trial preparation for the last several weeks. The Trustee’s counsel arranged their professional and 11 personal calendars for this month and next month around this trial. The Trustee’s counsel 12 rescheduled a medically-necessary surgery to prepare for and be available for this trial. On top of 13 all of this, critical deadlines loom in the trust administration. The Trustee cannot afford the 14 attendant costs of a trial continuance — especially when there is absolutely no reason to do so. 15 The motion for trial continuance is nothing more than a tactical maneuver to drain the trust estate, 16 so the Trustee will be forced to default. The interests of justice require that the Trustee’s claims, 17 including the claims against the Trustee, be heard on the merits without delay. 18 Pending before the Court are three distinct petitions: (l) the Trustee’s First Account and 19 Report, et. al.; (2) Moving Party’s Amended Petition for Order to Compel Trustee to Provide 20 Trust Information to Beneficiary, to Remove Trustee, and Modify Trust to Effectuate Decedent’s 21 Intent; and (3) the Trustee’s Petition for Instructions regarding the sale of Trust real property. 22 Moving Party contends on the eve of trial that the trial should be continued to allow the Trustee to 23 1 As stated in the Trustee’s verified pleadings filed with the Court, much of the litigation has been driven by Jesse 24 Litke’s father and multi-millionaire, Jeff Litke, who continues to hold a vendetta against the Trustee after she Moreover, as feared by the trustor, it is clear Jeff Litke has been using prevailed in a prior litigation he initiated. 25 Moving Party as a pawn in an attempt to gain back property distributed to the trustor (Jeff Litke’s ex—wife) in an acrimonious divorce. Moving Party is represented by Jeff Litke’s attorney who, after stating Moving Party “lacks the 26 sophistication to manage any significant financial assets” proceeded to draft an irrevocable trust for Moving Party. Unless Moving Party exercises a power of appointment referencing the express provisions in said trust, Moving 27 The trustee of Moving Party’s Party’s estate received from his mother’s trust will be distributed to Jeff Litke. irrevocable trust is Jeff Litke’s daughter from another woman and employee, who had no relationship with the 28 trustor. _ 2 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al. g/ file a petition approving the second and final accounting and a petition to approve final distribution. Neither the Trust nor the law requires the Trustee to file these petitions. More importantly, unless Moving Party has a crystal ball or is intent on objecting to a second accounting under any circumstance, the stated reasons are nothing but pure speculation. In other \lONUl-D-UJN words, Moving Party wants this Court to continue the trial due to events that have yet to occur and may m occur. Moving Party’s purported rationale for continuing the trial lacks merit and is disingenuous in light of the fact that he saw fit to file (1) an extensive (but frivolous) objection to the Trustee’s first accounting, (2) a lengthy petition to remove the trustee among other unsupported claims, and 10 (3) an objection to the Trustee’s petition to sell trust property, which the Trustee is expressly 11 authorized to do under the terms of the trust (and to which Moving Party had already consented, 12 and, in fact, previously admonished Trustee for not selling the property). If Moving Party truly 13 believed a continuance under the alleged circumstances would serve the interests of justice 14 and promote judicial economy, nothing prevented him from doing so in 2016 or 2017. 15 Moving Party contends his application is based on the fact that the trial should be vacated 16 because the alleged matters contain the same “or similar” issues, “albeit some which occur in 17 different time periods”. Moving Party further contends vacating the trial would avoid duplication 18 of evidence, having the same witnesses testify on common issues in all actions, and inconsistent 19 adjudications. Additionally, Moving Party contends continuing the trialwould promote judicial 2o economy and convenience. This is illogical and absolutely false. A judgment for the Trustee 21 on the pending petitions precludes re-litigation of the issues therein (i.e., whether the 22 Trustee’s actions during the accounting period were reasonable, Whether the trust should be 23 modified as Moving Party asserts, whether the Trustee should be removed as Moving Party 24 asserts, whether the Trustee failed to keep Moving Party informed of the trust administration as 25 he asserts, et. al.) In fact, an order settling the Trustee’s first account has a res judicata effect, 26 precluding Moving Party from re-litigating the issues therein. (See, e.g., Noggle v. Bank of 27 America, (1999) 70 Ca1.App.4th 853, 862, Lazzarone v. Bank ofAmerica, (1986) 181 Cal.App.3d 28 581, 597, Fairchild v. Bank ofAmerica, (1959) 165 .Cal.App.2d 477.) _ 3 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al. Further delays certainly would not promote judicial economy and convenience. For one, a judgment for the Trustee and award of attorney fees as expected may very well cause Moving AWN Party to think twice before filing yet another fiivolous objection against the Trustee. It istelling that Moving Party asserts he will be filing an objection to a petition for approval of a second and final accounting, sight unseen. The first accounting is complete in and of itself. If it were not, Moving Party was free to raise this issue in 2016, or 2017. He did not. \DOO\IO\UI Moreover, a judgment for Moving Para in the first accounting would assist the Court in V determining whether the professional fees paid in later accounting periods were properly charged to the trust. Why would Moving Party not want this? Because he knows that if his actions during 1o the first accounting period ever came to light, the Trustee would prevail. Moving Party (or rather, 11 Jeff Litke’s) only hope of prevailing in this litigation is to outspend the Trustee. A continuance 12 on the eve of trial would allow him to do just that. 13 Fear of a significant loss at trial through one’s malicious actions is no reason to seek a 14 continuance, especially when a continuance would create substantial, undue hardship to the non- 15 moving party. This is the precise kind of trial continuance motion a Court should deny. 16 II. THE MOTION IS UNTIMELY; MOVING PARTY’S DELAY IS UNJUSTIFIED 17 AND COMPELLING EVIDENCE OF THE LACK OF MERIT TO THE MOTION 18 AND SAN CTIONS ARE WARRANTED. 19 California Rules of Court Rule 3.1332(b) requires that a party seeking a continuance do so 20 “as soon as reasonably practical once the necessity for the continuance is discovered.” (See also 21 Mahoney v. Southland Mental Health Assoc. Med. Group, (1990) 223 Cal.App.3d 167, 172, “It 22 appears that appellant’s counsel failed to promptly request a continuance upon ascertaining the 23 need therefor and failed to meet the burden of establishing good cause for a continuance. In light 24 of these' circumstances, the court did not abuse its discretion in denying appellant’s request for a 25 continuance”) 26 Effective January 1, 2015, in all civil cases, the Court may order a party or counsel, or 27 both, to pay reasonable expenses, including attorney fees, incurred by the other party “as a result 28 _4 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group), § 9:1010, citing Code of Civil Procedure §‘ 128.5(a); emphasis in Weil &' Brown.) “Sanctions may be imposed where motions are made for purposes of delay — for example, waiting until the eve of trial to move for an order compelling contractual arbitration without [a] valid excuse.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group), §. 9:1033, citing Zimmerman v. Drexel Burn/mm Lambert Inc., (1988) 205 CalApp.3d 153, 159.) Moving Party’s unjustified delay in seeking an order to vacate the trial date is grounds for 10 denying it. More importantly, the delay is compelling evidence that Moving Party’s motion lacks 11 merit. If Moving Party truly believes the interests of justice and judicial economy necessitate a 12 trial continuance, he could have (and would have) filed this motion long ago. Nothing prevented 13 him from doing so. The only reason he is doing so now is to prevent the Trustee’s claims, 14 including his own fiivolous claims against the trustee, from being decided on the merits. Jeff 15 Litke is a multi-millionaire with deep pockets. The Court must not allow Mr. Litke to bully 16 someone with less financial resources into submission by sheer virtue of Mr. Litke’s wealth. 17 III. NO REASON EXISTS TO CONTINUE THE TRIAL DATE, MUCH LESS THE 18 REQUISITE GOOD CAUSE. 19 The Court may grant a continuance only on an affirmative showing of good cause 20 requiring the continuance. (California Rules of Court Rule 3.1332(c).) 21 In this case, no reason exists to continue the trial date, much less the requisite good cause. 22 Pending before the Court are three very distinct petitions. The Trustee’s first account and report 23 covers all actions reported therein, during a specific: [mite geriod — i.e.,there is no overlap as 24 Moving Party contends. It was complete enough for Moving Party to file a 30—page objection. A 25 trial continuance would not promote judicial economy. Res judicata prevents re-litigation of the 26 same issues. California courts have regularly applied res judicata in situations like here to bar a 27 disgruntled beneficiary from raising issues decided in a prior accounting. (See, e.g., Noggle v. 28 7 - 5 - TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. Bank of America, (1999) 70 Ca1.App.4th 853, 862, Lazzarone v. Bank of America, (1986) 181 Cal.App.3d 581, 597, Fairchild v. Bank ofAmerica, (1959) 165 Cal.App.2d 477.) Moving Party claims that the trial date should be vacated and the Court should order the Trustee to file a petition for approval of later accountings. Neither the Trust nor the Probate Code requires the Trustee to file such a petition, ever. The Trustee is merely required to produce an accounting and to distribute the assets. She is not required to file a petition. Moreover, how can Moving Party know whether he will object to a second accounting or a third accounting for that matter? Moving Party’s motion is based on pure speculation and no reason to continue a trial this late in the game. 10 Moving Party’s argument for vacating the trial date in the professed interests of 11 unnecessary duplication of evidence, risk of inconsistent adjudications, and promotion of judicial 12 economy is nothing more than a red herring to disguise his real intention to beat the Trustee into 13 submission due to her lack of similar financial resources. 14 IV. FACTORS RELEVANT TO A CONTINUATION COMPEL AN ORDER 15 DENYING THE MOTION. 16 Factors identified by Rule 3.1332, relevant to the continuation determination, weigh 17 heavily in the Trustee’s favor. In ruling on a motion or application for continuance, the Court 18 must consider all of the facts and circumstances that are relevant to the determination. These may 19 include: (I) the proximity of the trial date; 20 By stipulation of the parties, trial is set for February 20, 2018 — a mere two weeks away. 21 22 (2) whether there was any previous continuance, extension of time, or delay of trial... 23 24 The trial has already been continued m. At Moving Party’s insistence for an earlier 25 trial date, the initial trial was set for May 30, 2017. The trial date was subsequently continued to 26 September 5, 2017. At Moving Party’s request, the Trustee agreed to stipulate to continuing the 27 trial to February 20, 2018, two weeks from today. Moving Party should not be allowed to delay 28 trial on the pending petitions yet again. The Trustee already agreed to stipulate to one _ 6 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. continuance. For the reasons discussed herein, the attendant costs under the circumstances of a third trial continuance would severely prejudice the Trustee and would allow Moving Party to win by sheer virtue of Mr. Litke’s deep pockets. (3) the length of the continuance requested; In addition to asking this Court to continue a trial shortly to begin, Moving Party asks this Court “order the Trustee to file her second accounting and petition for its approval” and to fiirther “order the Trustee to filer her final accounting and petition for its approval and approval of final distribution”. These are completely improper requests. Neither the Trust nor the Probate Code requires the Trustee to file a petition for approval of her accountings or for distributionbf Trust 10 assets. There are no petitions before the Court seeking these orders. 11 Even assuming for the sake of argument only the Court were inclined to issue an order 12 compelling file the Trustee to subsequent accountings (without a duly noticed petition), 13 discovery on subsequent accountings would take months after such petitions were filed with the 14 Court. It took more than a year to get the first accounting to trial. Delaying trial for another year 15 or more is unreasonable by any standard, especially when there is absolutely no reason to do so. 16 (In the interim, there would still be another accounting for the this administration is yet year 17 delayed.) 18 ‘ (4) the availability of alternative means to address the problem that gave 19 rise to the motion; 20 In this case, there isno problem. Any alleged “problem” is contrived. For example, the 21 facts allegedly giving rise to the motion have existed since 2016. As itstands, there will always 22 be the potential for future petitions because even after a trial on the final accounting, there will be 23 another petition for fees and an accounting of same. And then another petition for fees incurred 24 in the litigation over the fees. The alternative means to address the “problem” is to bring the 25 pending petitions to trialno_w. Moving Party is free to bring an action on the second and final 26 accounting if he sees fit. He will not be prejudiced in any way. Further, a judgment for the 27 Trustee, as it appears both parties believe will happen, may actually serve to deter Moving Party 28 from filing yet another frivolous objection. _ 7 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. (5) the prejudice that parties or witnesses will suffer as a result of the continuance; The trustee and her counsel have been in full-blown trial preparation for the last few weeks and are ready to go on the trial date, set several months ago and per Moving Party’s request. Witnesses have been personally served with trial subpoenas. The Trustee’s experts have cleared OO\IO‘\UI-l> their calendars to be available for deposition, trial preparation and trial after significant coordination. The Trustee’s witnesses have made arrangements in their personal and professional lives to be available for trial. The Trustee’s counsel arranged their professional and personal calendars for this month and next month around this trial. The trustee’s counsel rescheduled a \O medically-necessary surgery to prepare for and be available for this trial. 10 The attendant costs of a trial continuance — i.e., the need to re-serve witnesses, coordinate 11 dates with those witnesses, refresh and re-prepare for trial (counsel and experts), re—arrange 12 counsel’s professional and personal calendars yet again — is something the Trustee simply cannot 13 afford. Moving Party knows this and is manipulating the Court system to take advantage of this 14 fact. 15 16 (6) whether the interests ofjustice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 17 18 The Court Leas to see how Moving Party has acted throughout the Trustee’s 19 administration. This current motion is but one more act in a long line of contemptible conduct. 20 Moving Party desperately seeks a continuance on the eve of trial because he wants to conceal his 21 actions from the Court and drag out the litigation to bleed the trust estate dry until the Trustee - 22 defaults. Moving Party makes several false, misleading, and speculative allegations in his 23 moving papers. Moving Party has been making those spurious allegations for months. 'If he truly 24 believed he could prove these allegations at trial,he could have filed a duly noticed petition for 25, surcharge and sought consolidation (or the current motion) months ago. He did not. 26 The interests of justice would not be served by a trial continuance. The- Trustee must be 27 afforded her opportunity to bring to light Moving Party’s actions as soon as possible before there is further damage to the trust. Moving Party should not, be allowed to manipulate the Court 28 _ 8 _ TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. a1. system to continue to conceal his actions. Worse, Moving Party should not be allowed to misuse the Court system to beat the Trustee into submission by sheer Virtue of Mr. Litke’s wealth. Here, the Trustee is facing an objection to her accounting and a petition for removal — i.e., UI-FUJN claims that the Trustee has breached her duties as trustee of the trust. The Court need only ask itself this question: Why would someone in the Trustee’s position (as the alleged wrongdoer) want to go to trial and why would someone in Moving Party’s position (as the alleged aggrieved \IO\ person) want to delay trial for yet another year to some unspecified date? (7) any other factor or circumstance relevant to the fair determination of the motion or application. (See California Rules of Court Rule 3.1332(d).) 10 The only hope of stopping the accumulation of future petitions is a ruling on the pending 11 petitions, so that Moving Party can be held accountable for his actions. At the initial trial setting hearing on the petitions, Moving 'Party sought an interim order removing the Trustee 0r 12 suspending her powers. The Probate Court, Judge Miram, presiding, alter reviewing the 13 voluminous pleadings. by the parties, made it very clear in no uncertain terms it was not willing to 14 15‘ remove the Trustee or suspend her powers under the circumstances, despite my requests by Moving Party. The Court noted that while Moving Party had much to say, there was simply no 16 meat to his allegations — i.e., there was simply no there, there. 17 Fast forward one year later and nothing has changed. Moving Party is simply trying to 18 win this case, not on the merits, but by wearing the Trustee down financially. In short, the 19 Trustee is entitled to have her claims (and the claims against her) decided on the merits without 20 further delay. Moving Party should not be allowed to manipulate the system to win simply 21 i ‘22 because he has more financial resources aVailable to him. V. CONCLUSION 23 The Trustee received Moving Party’s papers at 2:50 pm on Monday, February 5th 24 (yesterday). Prior to serving the Trustee with the moving papers, Moving Party failed to produce 25 his designated expert for a duly noticed (and confirmed) deposition set for the same day at 9:00 26 am because the expert was “not prepared” to be deposed. Moving Party’s counsel represented 27 28 under penalty of perjury in his Declaration to the Expert Witness Disclosure that his expert would _ 9 - TRUSTEE’S OPPOSITION TO JESSE LITKE’S MOTION TO VACATE TRIAL, et. al. be “sufficiently familiar With the pending action to submit to a meaningful oral deposition”. Moving Party’s counsel executed the Declaration six months ago. More significantly, Moving Party also failed to show up his for his duly noticed (and confirmed) deposition yesterday afternoon. The pending motion is yet another delay tactic (unfortunately, one in a series) to prevent the case against the Trustee from going to trial on the merits. Moving Party knows his petition and objections were filed in bad faith and certain to result in an award of attorney fees to the Trustee under the Probate Code and probate case law. Moving Party is merely misusing the Court process to avoid this fate. 10 The Trustee respectfully requests that she be allowed to present her case and to defend 11 Moving Party’s claims against her on the merits without further delay. For the reasons herein, 12 Moving Party respectfully requests sanctions under Code of Civil Procedure § 128.5 pursuant to 13 noticed motion.2 14 Dated: February 6, 2018 Barulich Dugoni Law Group, Inc. 15 16 17 18 Attorneys for Rebecca A. Litke, Trustee of the Judith Stockton 2000 Trust 19 20 21 22 23 24 25 2 Moving Party attempted to bypass this Court (the Presiding Judge) from hearing its motion and submitted its documents to the Probate Department. Consistent with the Trustee’s position regarding trust accountings and trials, 26 the probate examiner noted, “The fact that a trial is pending on one account does not preclude a trustee from filing a petition for approval of a subsequent account or a petition to compel an account. My guess is that the court will leave 27 theexisting trial date in place, but you are welcome to bring the request to continue.”The Probate Examiner also noted the numerous continuances in this case already — four in total. (The Court’s email correspondence is attached 28 as Exhibit A to the Declaration of J amay Lee in Support of Opposition to Motion to Vacate Trial Date, et. a1.) - 10 - TRUSTEE’S OPPOSITION T0 JESSE LITKE’S MOTION TO VACATE TRIAL, et. al.