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Feb-23-2007 10:16 am
Case Number: PTR-05-287341
Filing Date: Feb-14-2007 10:15
Juke Box: 001 Image: 01688851
GENERIC PROBATE PLEADING
RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WI"
001P01688851
Instructions:
Please place this sheet on top of the document to be scanned.-
GEORGE KING (SBN 028951)
MICHAEL G. ZATKIN (SBN 209494)
KING, KING & FISHLEDER, A Professional Corporation
The 555 City Center Building
555 Twelfth Street, Suite 1440
Oakland, California 94607
Telephone: (510) 844-3400
Facsimile: (510) 444-3401
Attomeys for Respondent
EVA KNOTT
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004,
CAROL MITCHELL,
Petitioner,
vs.
EVA KNOTT, Trustee and Beneficiary
under the REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary and
NATALIE FERRERO, a minor and a will
and trust beneficiary,
Respondents,
“ESTATE OF:
CHARLES ACTIS
Decedent.
CAROL MITCHELL,
Contestant,
vs.
EVA KNOTT,
Respondent,
Amendment to Opposition to Objection to Probate of Will
287-34
CASE.NOS. PES 05-287457
AMENDMENT TO RESPONDENT EVA
KNOTT’S OPPOSITION TO OBJECTION
TO PROBATE OF WILL
Trial Date: April 9, 2007
ORIGINALRespondent Eva Knott amends her Opposition to Objection to Probate of Will to add the
following:
Vv. Petitioner’s Objection to the Validity of the Will and Trust is Barred by This
Court’s Denial of the Petition for Conservatorship of Charles Actis.
In April, 2005 this court determined that Charles Actis was competent to manage his own
financial affairs when it denied the Public Guardian’s petition for conservatorship over Mr.
Actis’ estate in San Francisco Superior Court Case No. 04-286747. At issue in the
conservatorship proceeding was Actis’ capacity to manage his own affairs, as well as his alleged
vulnerability to undue influence from Eva Knott. These are the identical issues which Petitioner
now seeks to re-litigate in this petition contesting Actis’ November 2, 2004 will and trust.
The doctrine of res judicata gives conclusive effect to a former judgment in subsequent
litigation involving the same controversy. 7 Witkin, Cal. Proc. 4th (1997) Judgm, § 281, p. 821.
It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted
effort and expense in judicial administration. Jd. The doctrine in both its major aspects (bar and
collateral estoppel) applies to all courts, including inferior courts of limited jurisdiction and
courts of special jurisdiction. Jd, § 293 at p. 838.
Collateral estoppel applies to bar relitigation of an issue when (1) the issue is identical to
that decided in the prior proceeding, (2) the issue was actually litigated in the prior proceeding,
(3) the issue was necessarily decided in the prior proceeding, (4) the decision was final and on
the merits, and (5) preclusion is sought against a person who was a party or in privity with a party
to the prior proceeding, Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233.
The issues of Actis’ competency and susceptibility to undue influence (which Petitioner
raises in the instant case) are identical to the issues previously litigated in the conservatorship
proceeding. Actis’ competency to manage his own affairs and his susceptibility to undue
influence formed the gravamen of the Public Guardian’s petition for conservatorship. It was
Respondent’s alleged receipt of a $130,000 loan from Actis which precipitated the Public
Guardian’s filing of its petition for conservatorship over Actis in November, 2004. See
Amendment to Opposition to Objection to Probate of Will 2Attachment 5(b){1) and 5(b)(2) to Petition For Appointment of Probate Conservator of the
Person and Estate of Charles Actis, This court fully considered evidence of Actis’ competency
and vulnerability to undue influence before making its final determination, on the merits and
following a full and fair hearing, deeming Actis competent to manage his own financial affairs,
5 Pacific L. J. 165.) Heiser v, Superior Court (1979) 88 Cal.App.3d 276, 278. Moreover,
collateral estoppel simply requires that the Party in the earlier case have interests sufficiently
similar to the party in the later case, so that the first Party may be deemed the “virtual
Tepresentative” of the second Party. Alvarez v, May Dept. Stores Co., Supra,143 Cal.App.4th at
P. 1236, citing Citizens Sor Open Access ete, Tide, Inc. y, Seadrift Assn, ( 1998) 60 Cal.App.4th
1053, 1070-1073. In the alternative, the first Party must be acting ina representative capacity for
the second party. Gates v. Superior Court (1986) 178 Cal.App.3d 301, 307, 223. “The emphasis
is not ona concept of identity of parties, but on the practical situation. The question is whether
the non-party is sufficiently close to the original case to afford application of the principle of
preclusion,” People ex rel, State of Cal. v. Drinkhouse (1970) 4 Cal.App.3d 931, 937.
object to the Public Guardian’s presentation of what tured out to be unpersuasive evidence of
mental incapacity and undue influence, and now seeks a second bite at the apple. In sum,
Petitioner was sufficiently close to the original case to preclude her from relitigating issues
already determined on the merits by this court,
Moreover, it is hombook law that the degree of mental incapacity necessary to find that
an individual should be conserved is much higher than the mental incapacity necessary to deny
‘Amendment to Opposition to Objection to Probate of Will 3probate of a will. Since this court already determined that Charles Actis had the mental capacity
sufficient to avoid a conservatorship, it would be inconsistent for the court to now find that Actis
lacked capacity to execute testamentary instruments signed prior to the court’s denial of the
conservatorship.
KING, KING & FISHLEDER
DATED: February 8, 2007 By: MDa aA
A
MICHAEL G. ZATKIN
ttorneys for Respondent Eva Knott
‘Amendment to Opposition to Objection to Probate of Witl 4ROOF OF SERVICE
Re: In Re Revocable Living Trust Agreement of Charles Actis
San Francisco County Superior Court Case No. PTR-05-287341
San Francisco County Superior Court Case No. PES-05-287457
I, AL GARCIA, declare:
Tam employed in the City of Oakland, County of Alameda, State of California. My
business address is 555 Twelfth Street, Suite 1440, Oakland, California 94607-4046. ] am over
the age of 18 years and not a party to the foregoing action.
On February 12, 2007, I serveda copy of the AMENDMENT TO RESPONDENT EVA
KNOTT’S OPPOSITION TO OBJECTION TO PROBATE OF WILL on the interested
parties in said action,
Xx | VIAU.S. MAIL
by placing a true copy thereof enclosed in a sealed
envelope in a designated area for outgoing mail,
addressed as set forth below. At King, King &
Fishleder, mail placed in that designated area is given
the correct amount of postage and is deposited that
same day, in the ordinary course of business, ina
United States mailbox in the City of Oakland,
California,
VIA UPS OVERNIGHT
DELIVERY
by depositing a true copy thereof in a collection box or by having
the seated packet picked up by United Parcel Service, with
charges thereon fully prepaid, at Oakland, California, and
addressed as set forth below.
VIA HAND DELIVERY
by having a messenger service who is a non-interested party
employed by the law firm of King, King & Fishleder, deliver a true
copy thereof fo the firm/person listed below.
VIA FACSIMILE
by transmitting said document(s) from our office facsimile machine
(510) 444-3401, to a facsimile machine number(s) shown below.
Following transmission, | received a "Transmission Report" from
our fax machine indicating that the transmission had been
transmitted without error. After faxing, a copy was forwarded via
U.S. Mail.
Addressed as follows:
Robert B. Mitchell, Esq.
Spellman & Mitchell
1850 Mt. Diablo Blvd., Suite 670
Walnut Creek, CA 94596-4407
Telephone: (925) 938-5880
Facsimile: (925) 938-5880
PROOF OF SERVICEEmest F. Der, Esq.
Skootsky & Der LLP
90 New Montgomery Street, Suite 905
San Francisco, CA 94105
Telephone: (4] 5) 979-9800
Facsimile: (415) 979-982]
Caroline K. Hinshaw, Esq.
Bryan* Hinshaw
425 California Street, Suite 900
San Francisco, CA 94104
Telephone: (415) 296-0800
Facsimile: (415) 296-0812
declare under penalty of perjury and the laws of the State of California that the
PROOF OF SERVICE
I
foregoing is true and correct and that this declaration was executed on February 12, 2007, at
Oakland, California.
y
Al Aus
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IOC San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Feb-23-2007 10:16 am Case Number: PTR-05-287341 Filing Date: Feb-14-2007 10:15 Juke Box: 001 Image: 01688851 GENERIC PROBATE PLEADING RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WI" 001P01688851 Instructions: Please place this sheet on top of the document to be scanned.- GEORGE KING (SBN 028951) MICHAEL G. ZATKIN (SBN 209494) KING, KING & FISHLEDER, A Professional Corporation The 555 City Center Building 555 Twelfth Street, Suite 1440 Oakland, California 94607 Telephone: (510) 844-3400 Facsimile: (510) 444-3401 Attomeys for Respondent EVA KNOTT IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004, CAROL MITCHELL, Petitioner, vs. EVA KNOTT, Trustee and Beneficiary under the REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor and a will and trust beneficiary, Respondents, “ESTATE OF: CHARLES ACTIS Decedent. CAROL MITCHELL, Contestant, vs. EVA KNOTT, Respondent, Amendment to Opposition to Objection to Probate of Will 287-34 CASE.NOS. PES 05-287457 AMENDMENT TO RESPONDENT EVA KNOTT’S OPPOSITION TO OBJECTION TO PROBATE OF WILL Trial Date: April 9, 2007 ORIGINALRespondent Eva Knott amends her Opposition to Objection to Probate of Will to add the following: Vv. Petitioner’s Objection to the Validity of the Will and Trust is Barred by This Court’s Denial of the Petition for Conservatorship of Charles Actis. In April, 2005 this court determined that Charles Actis was competent to manage his own financial affairs when it denied the Public Guardian’s petition for conservatorship over Mr. Actis’ estate in San Francisco Superior Court Case No. 04-286747. At issue in the conservatorship proceeding was Actis’ capacity to manage his own affairs, as well as his alleged vulnerability to undue influence from Eva Knott. These are the identical issues which Petitioner now seeks to re-litigate in this petition contesting Actis’ November 2, 2004 will and trust. The doctrine of res judicata gives conclusive effect to a former judgment in subsequent litigation involving the same controversy. 7 Witkin, Cal. Proc. 4th (1997) Judgm, § 281, p. 821. It seeks to curtail multiple litigation causing vexation and expense to the parties and wasted effort and expense in judicial administration. Jd. The doctrine in both its major aspects (bar and collateral estoppel) applies to all courts, including inferior courts of limited jurisdiction and courts of special jurisdiction. Jd, § 293 at p. 838. Collateral estoppel applies to bar relitigation of an issue when (1) the issue is identical to that decided in the prior proceeding, (2) the issue was actually litigated in the prior proceeding, (3) the issue was necessarily decided in the prior proceeding, (4) the decision was final and on the merits, and (5) preclusion is sought against a person who was a party or in privity with a party to the prior proceeding, Alvarez v. May Dept. Stores Co. (2006) 143 Cal.App.4th 1223, 1233. The issues of Actis’ competency and susceptibility to undue influence (which Petitioner raises in the instant case) are identical to the issues previously litigated in the conservatorship proceeding. Actis’ competency to manage his own affairs and his susceptibility to undue influence formed the gravamen of the Public Guardian’s petition for conservatorship. It was Respondent’s alleged receipt of a $130,000 loan from Actis which precipitated the Public Guardian’s filing of its petition for conservatorship over Actis in November, 2004. See Amendment to Opposition to Objection to Probate of Will 2Attachment 5(b){1) and 5(b)(2) to Petition For Appointment of Probate Conservator of the Person and Estate of Charles Actis, This court fully considered evidence of Actis’ competency and vulnerability to undue influence before making its final determination, on the merits and following a full and fair hearing, deeming Actis competent to manage his own financial affairs, 5 Pacific L. J. 165.) Heiser v, Superior Court (1979) 88 Cal.App.3d 276, 278. Moreover, collateral estoppel simply requires that the Party in the earlier case have interests sufficiently similar to the party in the later case, so that the first Party may be deemed the “virtual Tepresentative” of the second Party. Alvarez v, May Dept. Stores Co., Supra,143 Cal.App.4th at P. 1236, citing Citizens Sor Open Access ete, Tide, Inc. y, Seadrift Assn, ( 1998) 60 Cal.App.4th 1053, 1070-1073. In the alternative, the first Party must be acting ina representative capacity for the second party. Gates v. Superior Court (1986) 178 Cal.App.3d 301, 307, 223. “The emphasis is not ona concept of identity of parties, but on the practical situation. The question is whether the non-party is sufficiently close to the original case to afford application of the principle of preclusion,” People ex rel, State of Cal. v. Drinkhouse (1970) 4 Cal.App.3d 931, 937. object to the Public Guardian’s presentation of what tured out to be unpersuasive evidence of mental incapacity and undue influence, and now seeks a second bite at the apple. In sum, Petitioner was sufficiently close to the original case to preclude her from relitigating issues already determined on the merits by this court, Moreover, it is hombook law that the degree of mental incapacity necessary to find that an individual should be conserved is much higher than the mental incapacity necessary to deny ‘Amendment to Opposition to Objection to Probate of Will 3probate of a will. Since this court already determined that Charles Actis had the mental capacity sufficient to avoid a conservatorship, it would be inconsistent for the court to now find that Actis lacked capacity to execute testamentary instruments signed prior to the court’s denial of the conservatorship. KING, KING & FISHLEDER DATED: February 8, 2007 By: MDa aA A MICHAEL G. ZATKIN ttorneys for Respondent Eva Knott ‘Amendment to Opposition to Objection to Probate of Witl 4ROOF OF SERVICE Re: In Re Revocable Living Trust Agreement of Charles Actis San Francisco County Superior Court Case No. PTR-05-287341 San Francisco County Superior Court Case No. PES-05-287457 I, AL GARCIA, declare: Tam employed in the City of Oakland, County of Alameda, State of California. My business address is 555 Twelfth Street, Suite 1440, Oakland, California 94607-4046. ] am over the age of 18 years and not a party to the foregoing action. On February 12, 2007, I serveda copy of the AMENDMENT TO RESPONDENT EVA KNOTT’S OPPOSITION TO OBJECTION TO PROBATE OF WILL on the interested parties in said action, Xx | VIAU.S. MAIL by placing a true copy thereof enclosed in a sealed envelope in a designated area for outgoing mail, addressed as set forth below. At King, King & Fishleder, mail placed in that designated area is given the correct amount of postage and is deposited that same day, in the ordinary course of business, ina United States mailbox in the City of Oakland, California, VIA UPS OVERNIGHT DELIVERY by depositing a true copy thereof in a collection box or by having the seated packet picked up by United Parcel Service, with charges thereon fully prepaid, at Oakland, California, and addressed as set forth below. VIA HAND DELIVERY by having a messenger service who is a non-interested party employed by the law firm of King, King & Fishleder, deliver a true copy thereof fo the firm/person listed below. VIA FACSIMILE by transmitting said document(s) from our office facsimile machine (510) 444-3401, to a facsimile machine number(s) shown below. Following transmission, | received a "Transmission Report" from our fax machine indicating that the transmission had been transmitted without error. After faxing, a copy was forwarded via U.S. Mail. Addressed as follows: Robert B. Mitchell, Esq. Spellman & Mitchell 1850 Mt. Diablo Blvd., Suite 670 Walnut Creek, CA 94596-4407 Telephone: (925) 938-5880 Facsimile: (925) 938-5880 PROOF OF SERVICEEmest F. Der, Esq. Skootsky & Der LLP 90 New Montgomery Street, Suite 905 San Francisco, CA 94105 Telephone: (4] 5) 979-9800 Facsimile: (415) 979-982] Caroline K. Hinshaw, Esq. Bryan* Hinshaw 425 California Street, Suite 900 San Francisco, CA 94104 Telephone: (415) 296-0800 Facsimile: (415) 296-0812 declare under penalty of perjury and the laws of the State of California that the PROOF OF SERVICE I foregoing is true and correct and that this declaration was executed on February 12, 2007, at Oakland, California. y Al Aus