Motion-Secondary: IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WITH CASE NO. PES-05-287457

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San Francisco Superior Courts
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Document Scanning Lead Sheet
Dec-07-2006 12:19 pm

Case Number: PTR-05-287341
Filing Date: Nov-22-2006 12:18
Juke Box: 001 Image: 01618226
GENERIC PROBATE PLEADING

IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC

001P01618226

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SPELLMAN & MITCHELL

DEAN M, SPELLMAN, #060042
ROBERT B. MITCHELL, #074795
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880

Attorney for CAROL MITCHELL

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FILED

San Francisco County Superior Court

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 V. KNOTT, Trustee and Beneficia
under the REVOCABLE LIVING TRUS’
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
will and trust beneficiary,

Respondents.

Case Number PTR-05-287341

MEMORANDUM OF POINTS AND
AUTHORITIES IN REPLY TO
OPPOSITION TO
PETITIONER'S/CONTESTANT'S
MOTION FOR SUMMARY
ADJUDICATION OF ISSUES

Date: November 28, 2006

Time: 11:00 a.m.

Room No: 204

Filing Date: June 2, 2005

Judges The Honorable John Dearman
Trial Date: Not Assigned

TABLE OF CONTENTS

Il, RESPONDENT'S SUPPORTING EVIDENCE IN HER SEPARATE RIATEMENT,
OF DISPUTED FACTS DO NOT SUPPORT HER ASSERTIONS .......

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I. RESPONSE TO OPPOSITION .......- cece eee s eect e tere ceeeseetenaes 4
A. The Summary Adjudication Motion Is NOT Procedurally Defective ....... 4

B. There Are NO Triable Issues Of Fact As To Whether Eva Knott Was Actis’
Care Custodian ... 0... ccc ce cece eee etter eet eeteeneee 5

C. The Level And Extent Of Services Rendered By Respondent To Decedent
Mandates That Respondent Be Deemed A Care Custodian Under The
Applicable Statute 2.0.00... cece eee eet ee eect etetteneeeees 6

D. Attomey O'Keeffe Did Acknowledge That He Failed To Comply With

21351(b) By Failing To Deliver To Decedent The Original Certificate Of

Independent Review 0.2... ccc ccece ccc e ees e cence eeeteeneee 7
£. Attorney O'Keeffe Failed To Meet The “Independent Attorney” Standard

Required By Statute... 0... cece cece cece cece ence eeneeeeeee 8

F, Not Only Does Respondent Fail To Offer A Single Authority Permitting Less
Than Full Compliance With Probate Code Section 21351, Attorney
O'Keeffe Failed To Meet Any “Substantial Compliance” Standard ..... 8

IV. CONCLUSION 2.0... ccc ccc ee cece teen cence nent cence een tenes 10

TABLE OF AUTHORITIES

Cases

Bernard v. Foley (2006) 39 Cal.4th 794 2... cece cece cece eee eee neees 3,6,7
Conservatorship of Davidson (2003) 113 Cal App 4" 1035 .......... eee cee cece 6
Estate v Shinkle (2002) 97 Cal App 4" 990, 1005. 2.22... 2... cece ene ee cece 7
Statutes

Probate Code Section 21351 20... . cece cece eee cece e ete eee tne eneneenae 8
Probate Code § 1000 20... cece ccc eee e cece renee tent eee tener enc eenes 4
Probate Code § 21350 2... ccc cece cence rece nee e renee tne eenes 4
Probate Code § 21351(b) .......ccecescceeeseeceeeeeeneseneteteneues 4,9
Welfare and Institutions Code § 15610.17. 0... cece eee e cee cere tence eens 7

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PLEASE NOTE: Again, this reply brief is essentially identical in both case numbers
PTR-05-287341 and PES 05-287457.
|, INTRODUCTION

The tactic apparently adopted by Respondent is: if you can’t beat them with the facts,
beat them with fabricated facts. Respondent's opposition is based primarily on false
representations regarding her supposedly “opposing evidence’. As this reply will demonstrate,
Respondent is not only wrong on the law, it attempts to “buffalo” this court by citing “opposing

evidence” that does not either exist or does not evince that which Respondent contends, Thise

- Court must not loose sight of the fact that the evidence presented clearly shows that

Respondent was the care custodian of a dependent adult and the Certificate of Independent
Review upon which Respondent now relies is invalid as a matter of law.

Il, RESPONDENT'S SUPPORTING EVIDENCE IN HER SEPARATE STATEMENT OF
DISPUTED FACTS DO NOT SUPPORT HER ASSERTIONS

As is seen from Respondent's Separate Statement of Disputed Facts, Respondent

disputes a variety of facts and references the court to allegedly supporting evidence.
Regretfully, Respondent, for the most part, refers the court to evidence that is either non-
existent or irrelevant to the fact being disputed. The page limitation for this brief prevents a full
itemization of each and every misstatement but a few examples follow.

Fact 31 - states that Respondent was instructed in wound-care for Actis’ partially
amputated foot (citing both on the statements made by Actis to Barbara Simon and deposition
testimony of Respondent herself). Disputing this fact, Respondent contends that Knott only
washed Actis’ feet. However, Respondent's own testimony (and cited by Respondent) clearly

states: “... Ms. Allmond trained me how to wash his [Actis’] foot - his wound, | mean -...”

(412:22-23) (emphasis added). Respondent now says to this court that her testimony was that

she only “washed” his feet. Respondent blatantly mischaracterizes her own testimony.
Fact 57 - In a blatant misrepresentation, Respondent contends that Barbara Simon

found that “...Actis ... was not under the undue influence of Eva Knott.” (without citing where in

Simon's report such an alleged “finding” is stated). In fact, Barbara Simon made no such finding

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for she testified in here deposition that she made no conclusion whether or not Knott was

exercising undue influence or any influence over Actis (see Depo of Barbara Simon, 113:7-9;
142:7-143:20 - Exhibit “S” hereto). Again, this is a blatant misrepresentation!!

Fact 20 - Respondent disputes the fact that she purchased groceries for Actis with the
explanation that she did not pay for those groceries but rather, she was reimbursed for same.
The issue is not who paid, the issue is that Knott provided care custodial services by
purchasing groceries on Actis' behalf.

Fact 18 - Respondent disputes the fact that the telephone number stated on
Respondent's business card is not her business phone because the subject telephone is
physically located in her home. Physica! location of a phone is irrelevant; the fact that the
telephone number is on Respondent's business card makes it her business phone.

Fact 42 - The asserted fact states that Actis made a statement to Barbara Simon that he
knew that Knott was helping him “for the money”. This fact is disputed by Knott's deposition
testimony that she told Mr. Friedenberg that she did not care about Mr, Actis’ estate. However,
Knott's deposition testimony does not dispute the fact that Mr. Actis made those statements to
Barbara Simon. Knott offers no evidence whatsoever that Mr. Actis did not make that
statement to Barbara Simon.

Fact 46 - states that O'Keeffe’s file shows no evidence of transmitting the original
Certificate of Independent Review to Actis. While Respondent disputes this fact, the “evidence”
cited by Respondent is only an expression of a conjecture that there was an opportunity for
O'Keeffe to personally deliver the subject Certificate (even though this is contrary to O’Keeffe’s
deposition testimony). The fact still remains that O’Keeffe’s file contains no evidence of the
transmission of that Certificate.

Fact 17 - Disputing the fact that Knott advised Mr. Actis that he was in need of a care
giver, Respondent references that fact that she advised Actis that he needed to hire someone
for laundry, cleaning, etc. This is anon-sequitur. Simply because Respondent allegedly
suggested, at some point in time, that Actis hire someone to do cleaning, does not in any way

negate the fact that Respondent had observed the need for a care giver for Actis and informed

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him of that fact.

Fact 8 - Dr. Vella's neuropsychological report states that Mr. Actis had significant visual
difficulties due to retinitis. In disputing this medical conclusion, Respondent cites statements by
lay people stating that Mr. Actis could read and that the court denied a petition for Actis’
conservatorship, Such “evidence” has nothing to do with the medical fact stated by Dr. Vella.

Fact 4 - In denying that Mr. Actis suffered from a foot wound caused by vascular
disease and diabetes, Respondent cites paragraph 3 of Chantay Alimond’s Declaration
(Respondent's Exhibit “E”), However, the subject paragraph 3 makes absolutely no reference
whatsoever to Mr. Actis’ foot wound, vascular disease or diabetes.

Fact 34 - Respondent contests the fact that she instructed attorney Friedenberg as to
Actis’ alleged directions regarding the terms of his Revocable Trust by stating that Respondent
did not give instructions to attorney Friedenberg on the preparation of the Trust. However, the
Deposition of David Friedenberg clearly states:

114: 8 How did Exhibit No. 13 come to be prepared —-

9 which is the Revocable Living Trust?

10 A. ! was informed that Charles Actis wanted to
11 havea revocable living trust for the same dispositive
12 provisions as his will which he did in August of '04.
13 Q. And this was told to you by Eva Knott?

14 A. Yes

Fact 2 - Contrary to Respondent's assertion, the court made no findings and made no

tulings that Mr. Actis had the “mental capacity to conduct his own affairs”. While Respondent
cites her Exhibit “P", that exhibit evidences no such fact.

Various References to “Friendship” - In attempting to dispute a variety of undisputed
facts (see Facts 10, 19, 22, 35, 36, 37, 38, 39, 44 and 59), Respondent throughout her
Separate Statement repeatedly references declarations and statements that Respondent was
the “friend” of Mr. Actis. Assuming arguendo that such a “friendship” existed, such fact is
irrelevant to the issue of care custodian status. First, there is no prohibition against a care-
custodian being a “friend” of her charge. Secondly, the Berard case (cited throughout both
parties’ points and authorities) clearly states that such “friendship” does not provide any

exemption to the prohibited donee rule under the Probate Code. Respondent attempts to

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suggest that friendship and care custodian are mutually exclusive. They are not and the
Bemard case tells us that.
Ill, RESPONSE TO OPPOSITION

A. The Summary Adjudication Motion Is NOT Procedurally Defective

Surprisingly, Respondent raises a procedural objection to this summary adjudication
motion when she herself moved for summary adjudication based on the same exact grounds.
in December of 2005, Respondent filed a summary adjudication motion in order to obtain a

tuling as to her defense under Probate Code § 21351(b)" and the court issued a ruling on the

merits of her motion. Why does Respondent now seek to deny this Petitioner/Contestant that

same right?

As pointed out in the moving papers, California Probate Code § 1000 provides that
motion procedures available in civil actions may be used in all probate proceedings. However,
it must be noted that the pleadings in Probate actions, at least in the context of will and trust
contests, do not inctude “causes of actions” or per se “affirmative defenses". This fact was well
known to Respondent when she moved for summary adjudication; however, she now chooses
to ignore this fact in an attempt to defeat this motion not on the merits, but on some invalid
procedural objection.

While Respondent attaches to her apposition copies of Petitioner/Contestant's petitions
(see Respondent's Exhibits “Q” and “S”), suspiciously, Respondent failed to attach her own
Response to the Petition to Determine Validity of Purported Will and Trust. Attached hereto
and marked as Exhibit “R” is a extract of that response which clearly shows that Respondent

asserts the defense that she was not a prohibited donee under Probate Code § 21350, et seq.

(see 4:16-8:5 thereof). Clearly, Respondent herself raised as a defense the Probate Code

sections which are the subject of this summary adjudication motion and Petitioner only seeks

See Respondent Eva Knott's Memorandum of Points and Authorities in Support of Motion for Summary
Judgment or in the Alternative, for Summary Adjudication of Issues filed December 8, 2005: 1:12-16; 9:1-15:13,
See also 1:12-16 of Exhibit “Q" attached hereto which is page 1 of Respondent's December Summary Adjudication
Motion. in fact, forty percent (40%) of Respondent's summary adjudication motion argued this very Issue.

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through this motion the disposition of Respondent's defense that she was a permitted donee?

B. There Are NO Triable Issues Of Fact As To Whether Eva Knott Was Actis’ Care

Custodian
With a sweep of the hand, and not much more, Respondent summarily decrees that

she has presented evidence “disputing virtually all” of Petitioner's allegedly uncontroverted
facts that Respondent was the care custodian of Actis. (Opp 11:12-13). An examination of
Respondent's “evidence” not only shows quite the opposite, it shows a disturbing pattem of
consistently misrepresenting the actual “evidence”

As to the 33 “facts” relied upon by Petitioner/Contestant supporting Respondent's care
custodian status (Fact 10 through 42), Respondent did not dispute 16 facts. Furthermore, of
the facts that are “disputed” by Respondent, the supporting evidence does not support a
Position contrary to the asserted undisputed fact (see section I above).

Next, Respondent makes the unsupported allegation in passing that this court has dealt
with the care custodian issue in previous conservatorship proceedings, presumably of Mr.
Actis, but offers no explanation or reference beyond this statement. In fact, there has been no
determination of Respondent's care custodian status until the filing of this motion.

More specifically, Respondent offers only two (2) substantive facts to dispute
Respondent's care custodian status. The first is Respondent's own declaration stating that she
was not @ care custodian for the decedent and that Actis never paid her for her services. Aside
from the obvious fact that such declarations are self-serving, Respondent does not refute her
own deposition testimony that Actis was in need of a care custodian. ttis the facts that
determines care custodian status, not a conclusionary declaration. Further, and even though
not a requirement, no evidence is offered to dispute the fact that decedent himself stated that
he had paid Respondent occasionally for her services. Additionally, Respondent's own

deposition testimony acknowledges that Respondent would provide services to the decedent in

It should not go unnoticed that Respondent, while spending 154 lines arguing this alleged procedural
defect, expends a mere 8 lines discussing her own 21350 defense. Ignoring Respondent's own defense does not
cause it to disappear fram her pleadings.

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consideration for him naming her in his will.

The second specific fact relied upon by Respondent is the variety of declarations and
testimony referencing a “friendship” between the decedent and the Respondent. However, the
existence of a friendship is irrelevant to the issue of care custodian. There is no prohibition
against a care custodian being a “friend”; however, and as clearly stated in Bemard v,

Eoley (2006) 39 Cal.4th 794, there is no “friendship” exception to the prohibited donee transfer
tule nor does friendship immunize one from being a care custodian. The facts set forth in
Petitioner/Contestant’s Separate Statement of Undisputed Facts (Facts 10-42) show clearly
and indisputably that the Respondent was a care custodian for decedent.

Finally, Respondent makes reference to the report of Dr. Vella that the “Problems of
Everyday Living Test” somehow demonstrate that Actis was not a “dependent adult” under the
applicable statute. Not only does this contention contradict Respondent's own admission that
“Actis was a dependent adult” (Opp:11:2), it contradicts Dr. Vella's own report that stated that
decedent was “dependent on [Eva Knott] to maintain his independence” (see
Petitioner/Contestant's Separate Statement of Undisputed Facts, Fact 10). Further,
Respondents own offered evidence confirms this fact when the Report of Barbara Simon
states: “In my review of this medical conditions and recent history itis clear that Mr. Actis
needs support for his activities of daily tiving” (Respondent's Exhibit H, first page, 5"
paragraph, first sentence) (emphasis added).

C. The Level And Extent Of Services Rendered By Respondent To Decedent

Mandates That Respondent Be Deemed A Care Custodian Under The Applicable

Statute,

Respondent next argues that all of the services and all of the assistance Respondent
provided to Charles Actis does not rise to the status of “care-custodian”. In support of this
contention, and relying upon Bernard v Foley, supra., and Conservatorship of Davidson (2003)
113 Cal App 4" 1035, Respondent itemizes the factual difference between these cases and
the case at hand.

However, Respondent fails to appreciate that neither the Bernard nor the Davidson

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cases provide the exclusive fact pattern under which one achieves “care-custodian” status. As
set forth in the moving papers, the definition of “care-custodian” comes not from case law but
rather from Welfare and Institution Code § 15610.17. That code section broadly defines “care-
custodian” as a person who provides “... care or services for elders or dependant adults”. The
definition of “care-custodian’ is “broad” and includes “persons providing care or services for
elders or dependant adults". Estate v Shinkle (2002) 97 Cal App 4" 990, 1005. Respondent's
assertion that there are distinguishing facts between the Berard case and this case is a failure
to appreciate that each case is determined by its own unique facts and under the broad
definition of Welfare and Institutions Code § 15610.17.

While there is no present evidence that Respondent administered medication to Mr.

Actis (as Respondent point out the care custodian did in Bernard), there is undisputed®

evidence that Respondent cared and tended to Mr. Actis’ partially amputated foot. It cannot be
reasonably suggested that only the administration of medication qualifies one as a care-
custodian while wound-care does not. Again, every case must be decided on its own facts.
Given the litany of facts in this case (Undisputed Facts 10-42), Respondent falls well within the

broad definition of “care custodian’.

D. Attomey O'Keeffe Did Acknowledge That He Failed To Comply With 21351(b) By
Failing To Deliver To Decedent The Original Certificate Of Independent Review

In an odd assertion, Respondent contends that attorney O’Keeffe never acknowledged
that he failed to deliver the original Certificate of Independent Review to Actis. Respondent
contends that a “likelihood” could exist that “O'Keeffe delivered the Certificate of Independent
Review to Actis personally” (Opp 16:9-10). Such a contention by Respondent blatantly ignores
the testimony of attorney O'Keeffe.

Attorney O'Keeffe was asked straight out: “Where is the original [Certificate]?” Attorney
O'Keeffe did not say, “I detivered it to Mr. Actis” or any words to that effect. What Mr. O'Keeffe

See “Fact 31" in section I! above. Further, there Is no testimony at 412:16-23 as Respondent inaccurately
represents, that Respondent tended Actis’ wound for a “limited time". Again, Respondent fabricates testimony in
order to dispute an undisputed fact.

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did state under penalty of perjury was “I don’t know." Had he delivered it to Mr. Actis, attorney
O’Keeffe's response would have been otherwise. If that were not enough, attorney O'Keeffe
went on to volunteer that maybe the original was in his own file. Had O'Keeffe delivered the
original certificate to Charles Actis, why would he be looking in his own file for the original?
The answer is obvious: he did not deliver the original certificate to Charles Actis and
Respondent's suggestion to the contrary ignores the testimony of Mr. O’Keeffe.

E. Attomey O'Keeffe Failed To Meet The “Independent Attomey” Standard Required

By Statute

In her continuing endeavor to have this court ignore the facts, Respondent feigns
offense by falsely asserting that Petitioner/Contestant has suggested that this court had
appointed “a biased attorney” in Mr. Actis’ conservatorship proceeding (Opp. 17:18-20). In
order to create this “stir”, Respondent again misrepresents the facts surrounding the Certificate
of Independent Review and Mr. O'Keeffe’s court appointment.

Respondent is mistaken in thinking that the “subsequent” conservatorship
representation compromised O’Keeffe’s “independent status”. Respondent has it backwards. It
is the fact that O'Keeffe represented Actis first in the conservatorship and then subsequent
thereto executed the Certificate. It was the fact that the conservatorship representation came
first that endangered his status as an “independent attomey” for the purposes of the Certificate
of Independent Review. Mr. O’Keeffe's conservatorship appointment took place mid January of
2005 while the Certificate is dated April 7, 2005, three (3) months later (see Petitioner's Exhibit
“E"). By virtue of Mr. O'Keeffe’s representation of Actis in the conservatorship proceeding, he
lost his “independent attorney” status under the statute. Apparently, Mr. O'Keeffe could have
obtained an “independent attorney’ status by having Mr. Actis execute a “written engagement”

but this was never done.

F. Not Only Does Respondent Fail To Offer A Single Authority Permitting Less Than

Futl Compliance With Probate Code Section 21351, Attomey O'Keeffe Failed To Meet
Any “Substantial Compliance” Standard

Finally, Respondent contends that attorney O'Keeffe “substantially complied” with

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Probate Code § 21351(b) by “hotd[ing]” the Certificate of Independent Review until the
conclusion of the conservatorship proceeding (Opp. 18:22-23). Surprisingly, Respondent's
counsel exceeds the permitted scope of advocacy by blatantly, and yet again, misrepresenting
facts in connection with this assertion.

Respondent contends that Barbara Simon had reported to the court that “Mr. Actis was
of sound mind” and "was not subject to Knott's undue influence” (Opp. 18:20) (emphasis
added). However, as Respondent's counsel is well aware (for he attended her deposition),
Barbara Simon testified in her deposition:

(I) that as to Charles Actis, she viewed her roll as finding an alternative to the

Pubtic Guardian's Conservatorship (see Depo of Barbara Simon, 135:13-20 -
Exhibit “S” hereto),

(ii) that the purpose of her report was to stop the conservatorship from being
pursued by the Public Guardian's Office (see Depo of Barbara Simon, 182:13-
17 - Exhibit “S” hereto),

(iii) that she made no conclusion whether or not Knott was exercising undue
Influence or any Influence over Actis (see Depo of Barbara Simon, 113:7-9;
142:7-143:20 - Exhibit “S" hereto) and

(iv) _ that the undue influence referenced in her report was limited to “food, clothing
and shelter’ - she clearly stated that she “was not talking financial" (see Depo of
Barbara Simon, 118:5-23 - Exhibit “S" hereto).

Clearly, Respondent misrepresents to this court the findings of Barbara Simon.’

Setting aside for the moment these misrepresentations, Respondent offers no authority
that permits a performance less than that as set forth in the subject statute. The statute
specifically requires that the "independent attorney” deliver to Mr. Actis the “original” Certificate

of Independent Review. By Mr. O’Keeffe’s own admission, he failed to deliver the original

It should be noted that while Respondent refers this court to the “Report of Barbara Simon” as to these
false facts, Respondent fails to specify a single page or paragraph of that report where such alleged findings are
reported. Again, improper fabrication of facts.

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Certificate.

Furthermore, and directly contrary to Respondent's assertion, no legitimate argument
for substantial compliance can be made since attorney O'Keeffe did not even deliver to Mr.
Actis a copy of the Certificate of Independent Review. While Respondent contends that
attorney O'Keeffe stated that he did not know who received copies of the Certificate of
Independent Review, a reading of his deposition shows quite clearly that he excluded Actis as
a possible recipient of even a copy:

90:19 Q. Whodo you knowreceived copies of this Exhibit
20 15 [Certificate of independent Review]?
21 A. You did [Petitioner's counsel]. Friedenberg did. Maybe Debra Dolce.
22 ‘I don’tknow.

The bottom line is that the statute requires the independent attomey to undertake and
complete specific tasks in order to create a valid Certificate of Independent Review. This
procedure by which one can be exempted from the prohibited donee rule is strictly a creature
of statute and In order to obtain the benefits of that statute, one must fully comply with the
statute. Neither the statute or case law states that one must only do some of the tasks or
comply with only some of the requirements. The statute is clear - if one wants to avoid the
consequences of being a prohibited donee, the requirements of the statute must be met. As
stated in the moving papers, the Legistature struck a Sotomon-like balance between broad
definitions of disqualified persons and the ability to avoid the consequence of being a
disqualified donee. Here, there was no compliance with the statute and consequently, the
offered Certificate of tndependent Review is invalid.

WV. CONCLUSION

For the reasons set forth herein as well as in the original moving papers,
Petitioner/Contestant respectfully requests that summary adjudication be entered as set forth
in Petitioner’s/Contestant’s Exhibits “N” and “O”.

Dated: November 20, 2006.

N

OBERT 8. MITCHELL, Attorney for
Petitioner/Contestant CAROL MITCHELL

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1._ISSUES

It is respectfully requested that the court herein decide the following issues in this matter:

1. That there is no triable issue of fact that Charles Actis was anything other than of
sound mind when he executed his August 16, 2004 Will and/or his November 2, 2005
Will and Trust.;

2. That there is no triable issue of fact that Eva Knott ever exerted undue influence over
Charles Actis in the making of his August 16, 2004 Will and his November 2, 2005 Will
and Trust as all credible evidence shows that Charles Actis deliberately intended to
leave the bulk of his estate to Eva Knott and that no admissible evidence to the contrary
exists.;

3. That there is no merit to the claim that Respondent Eva Knott acted as Donor Charles
Actis’ care custodian, pursuant to Probate Code § 21350;

4, Even if Eva Knott is found to be a care custodian, that the existence of the Certificate of
Independent Review shifts the burden of proving undue influence on to Petitioner Carol
Mitchell.

. Ii._ STATEMENT OF F, Ss

The donor in this case, Charles Actis, had always been unmarried and had no children. His
closest relatives were an estranged half-brother and his half-brother’s children, including Carol
Mitchell, who filed multiple actions contesting the will and trust herein, Actis executed a will and
revocable living trust leaving the bulk of his estate to moving party herein, Eva Knott. (Charles Actis
Will and Revocable Trust [Ex. 13, 14]) Long before meeting Knott, Actis told friends and
neighbors of the falling out he had with his half-brother and his family. (See Separate Statement of
Undisputed Facts, hereafter “S.S.”, Nos. 14-20) Specifically, Actis believed that his half-brother
had cheated him out of his mother and step-father’s inheritance. (S.S. Nos. 14-17) He also felt that
his half-brother and his half-brother’s children did not care for him, that they tried to sell his house

1
"RESPONDENT EVA KNOTT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY
JUDGEMENT OR IN THE ALTERNATIVE; HOR SUMMARY ADJUDICATION OF ISSUES

EAHIBIT "QQLegal Tabs Co. 1-800-322-3022 Recycled & ‘Stock # A-EXA-5-B

EXHIBIT R /C C

DAVID J. FRIEDENBERG, ESQ.
SBN 25026 .
2171 Junipero Serra Blvd., Ste. 620
Daly City, CA 94014

Telephone: (650) 755-6622
Facsimile: (650) 755-4312

Attorney for Respondent
EVA KNOTT

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

EIN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND
WILL DATED NOVEMBER 2, 2004

Case No. PTR-05-287341

MEMORANDUM OF POINTS AND
AUTHORITIES IN RESPONSE TO
PETITION TO DETERMINE VALIDITY
OF PURPORTED WILL AND TRUST

CAROL MITCHELL,

)
)
)
)
)
)
)
a 2
Petitioner, )
. ) Date: 7/11/05
v. ) = Time: 9:00 a.m.
) Dept: Probate
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 minoranda_ )
)
)
)
)

will and trust beneficiary,

Respondents.

STATEMENT OF FACTS
About 2001, respondent Eva Knott met decedent Charles Actis through a neighbor of his and
they gradually became friends. Charles was about 80 years old and had always been single and had
no children. His closest relatives were an estranged half-brother and his children, Eva was a
professional care giver but their meeting and relationship was completely independent of her work.

Eva and Charles relationship was purely social and non-commercial. They talked frequently and

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+ MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITY

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occasionally, Eva ran errands for Charles. She would drive him to the store orbank, She did not
ask for, nor receive a salary for her deeds. She did receive reimbursement for any out of pocket
expenditures she made on Mr. Actis’ behalf. Their friendship grew, and in the months prios to his
death, they saw each other frequently and often dined together. (See Declaration of Eva Knott,
Exhibit 1). ,

Charles Actis was estranged from his half-brother and his children as he felt they mistreated
him and were only interested in his money. He expressed this sentiment to several of his neighbors,
including Harold Vincent McCarthy, years before he ever knew Eva Knott (See Declaration of
Harold Vincent McCarthy, Exhibit 2).

Charles Actis died on April 26, 2005, leaving the bulk of his estate to Eva Knott. His half-
brother’s daughter, Carol Mitchell, filed the Petition here in an attempt to claim the estate.

-

POINTS AND AUTHORITIES
I, AT THE TIME OF MAKING THE WILL AND TRUST, DECEDENT WAS MENTALLY
COMPETENT AND DID NOT SUFFER FROM UNDUE INFLUENCE.

In June of 2004, Charles Actis wanted to make Eva a beneficiary in his will. Because of his
age, and fearing his Will might be challenged by his estranged half-brother and children, he
voluntarily subjected himself to a medical exam to determine his mental fitness. Events proved that
Charles Actis’ fears were well justified and that he demonstrated good foresight and judgment in
requesting the medical examination prior to executing his Will. On June 7, 2004, Charles was
found to be psychologically competent following an evaluation by Neuropsychologist Charles Vella
Ph.D. at Kaiser Permanente Medical Center, Department of Psychiatry, in San Francisco. (See
Exhibit 3) Dr. Vella’s report noted: "Mr. Actis performed normally on the COGNISTAT.
Orientation, Attention, Language, Calculation, and Reasoning were all within the normal
range, Naming and Block design were normal. Similarities and judgements were normal."

Thereafter, on August 16, 2004, Charles executed his Will at the Law offices of David

Friedenberg, leaving the bulk of the estate to Eva Knott. The execution of said Will was also

videotaped,

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+ MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYVW)

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On November 2, 2004, a Living Trust and pour over Will with the same dispositive
provisions as the Will executed on August 16, 2004, thus showing his intent and capacity was the
same as it had been when he executed the original Will.

In early 2005, Charles was again mentally evaluated, this time by Barbara Simon, a
Professional Fiduciary at Simon Associates, Protective Services for Seniors in San Francisco. Ms.
Simon interviewed Mr. Actis in his home on three separate occasions, and once via telephone. In her
Teport, attached hereto as Exhibit 4, Ms. Simon noted that "Mr. Actis acted in a functional way,
taking the entire step to protect his assets during his lifetime, while directed them after his
demise. ...[He] showed foresight, clear thinking, self importance and preservation to affect the
final outcome he desired....the current support and friendship that Ms. Knott provides Mr.

Actis is beneficial to his physical and emotional well being." Ms. Simon’s report also quotes

ge
Charles Actis as expressing his feelings regarding his life when he states "in my last years of my life
I should be comfortable, and they [his family] never wanted me. When my family didn’t help me,
I prayed and prayed for someone to help me, and Eva came along".

Petitioner Mitchell relies uponareport by Dr. Abraham Nievod, who evidently examined Mr.
Actis only once - on January 7, 2005. However, Dr. Nievod’s findings are not only contradicted by
the findings of Dr. Vella (Exhibit 3) and Barbara Simon (Exhibit 4), but also by Dr, Harry Lew,
M.D. of Kaiser Hospital San Francisco, who wrote on January 5, 2005 "I have been seeing Mr.
Charles Actis since March, 2003 and I continue to see him weekly and as needed. He is
capable of making his own decisions regarding medical treatment. He is lucid, knows what
he is doing, can make his own decisions regarding his care and finances concerning medical
treatment." (Exhibit 5)

It is pointed out that as opposed to the one-time examination by Dr. Nievod, Dr. Harry Lew
had been seeing Charles Actis weekly for two years. Furthermore, the findings of Dr. Nievod should
have no bearing on the Will executed by Charles Actis on August 16, 2004, which also left the bulk
of his estate to Eva Knott, just after the thorough examination and report of Dr. Charles Vella of

Kaiser Hospital, SF, which Will was executed seven (7) months prior to Dr. Nievod’s exam.

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* MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYC C

Also attached hereto as Exhibit 2 are two (2) Declarations from Harold Vincent McCarthy,
a neighbor and friend of Charles Actis for many years. In his Declaration of January 9, 2005 , Mr.
McCarthy states in part that "Charles Actis converses well and has a good memory, He is very
well aware of what is going on and what he is doing and is capable of making his own decisions
as to his personal and financial needs." In his supplemental Declaration dated May 16, 2005 , Mr.

McCarthy states that on several occasions Charles Actis told him that he wanted to leave the bulk

of his estate to his friend, Eva Knott, and not to his family. He even stated that he would marry Eva
if necessary, to avoid the possibility of his family contesting the Will.

Also attached hereto as Exhibit 6 is the Declaration of Georgia Kouropoulos, a neighbor who
had known Charles Actis for more than thirty (30) years prior to his death, She said he lived about
three doors from her and they would speak frequently. The last time she spoke to Charles Actis was
shortly before he went into the hospital in April, 2005. She states that he “was still very aware of

what he was doing and seemed very competent and of sound mind to me." She also states "he

appeared the same as he always had",

II. RESPONDENT WAS NOT DECEDENT’S "CARE CUSTODIAN", THEREFORE SHE
IS NOT A PROHIBITED DONEE UNDER PROBATE CODE § 21350(A).

Section 21350(a), reads in relevant part: "Except as provided in Section 21351 ...,no provision,
or provisions, of any instrument shall be valid to make any donative transfer to any of the following:

.» (6) A care custodian of a dependent adult who is the transferor."

Under the pertinent statutory definition, "Care custodian" means an administrator or an employee
of any of the following public or private facilities or agencies, or persons providing care or services
for elders or dependent adults, including members of the support staff and maintenance staff: ... (y)
Any ... protective, public, sectarian, mental health, or private assistance or advocacy.agency or
person providing health services or social services to elders or dependent adults.” (Welf. & Inst.

Code, § 15610.17.)

WwW

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* MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYow C C

Here, although Eva Knott was a professional care custodian, she met decedent completely

.

independently from her professional occupation. She did not meet with decedent through her work

nor did they have a professional relationship. They were merely good friends.

The Appellate courts have rejected overbroad interpretations of the code sections which would

include friends who provide care. Such was the case in Conservatorship of Davidson (2003)113
Cal.App.4th 1035. There the court stated:

We reject appellant's over broad interpretation of the pertinent statutory
language. Under appellant's reading of section 21350 and Welfare and
Institutions Code section 15610.17, virtually any individual providing
personal care to a dependent adult, no matter how intimately and
personally connected they might be, would be disqualified’ from
receiving a gift, bequest, devise, or other donative transfer from the
dependent adult under a trust or will unless they were related to the
dependent by blood or marriage. Appellant's interpretation of “care
custodian” is so broad as to include not only the provision of health care
or social services, but such actsas simply cooking for an elderly person,
driving a house-bound individual to the bank or doctor, or going
shopping for them. Indeed, appellant specifically cites [Respondent’s]
provision of just these services to Davidson as evidence that he was a
“care custodian” under the statute,

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In so doing, appellant's interpretation does violence not only to

16 traditional principles of private charity and contemporary societal
structures and relationships, but to the explicit language of the relevant
17 statutes. The definition of "care custodian” in Welfare and Institutions
Code section 15610.17, incorporated by reference in section 21350,
18 clearly focuses on the occupational provision of “health services and
social services" (italics added) by specifically enumerated public
19 agencies and private professional organizations and individuals. fn. 7
- The kind of personal, nonprofessional care provided [113 Cal.App.4th
20 1050] by Gungl to Davidson may be brought within the scope of the
subject statutes only by severely editing the statutory language... ..
21 .
2 Moreover, appellant's interpretation of the statute is also contradicted
by the legislative history, of which we take judicial notice. fn. 8 As
3 made clear by discussion of the legislation in an analysis prepared for
the Senate Judiciary Committee, the enactment of the amendment
4 adding "care custodians" to the list of presumptively invalid recipients
of donative transfers was intended to apply to gifts made “to practical
25 nurses or other caregivers hired to provide in-home care." (Sen. Com.
on Judiciary, com. on Assem. Bill No. 1172 (1997-1998 Reg. Sess.) at
6 p.4.)....
27

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+ MEMORANOUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYC _¢

Thus, the legislative intent was to place limitations on the ability of
professional "care custodians" to receive donative transfers from elderly
testators. This intent is not advanced by imposing burdensome technical
and procedural barriers on the ability of elderly individuals to recognize
and reward services performed for them in their declining years by
close personal friends, intimates and companions. It would be both
tragic and ironic if the statute were interpreted so broadly as to result in
effectively punishing such individuals for the self-sacrificing acts of
care and companionship they provided to the aging. The trial court's
interpretation of the term "care custodian" is clearly congruent with
both the clear statutory language and the legislative intent to restrain
potential abuses by persons employed in the health care and social
services industries without effectively penalizing individuals
performing private acts of charity.

The appellate court supported the factors recognized by the trial court, including:

the remarkably long and close relationship between Davidson [decedent] and Gungl [respondent};
“Gungl's deep personal concem for Davidson's well-being; the non-commercial nature of the
personal care he offered her; and the fact that the moneys paid to Gung! were not remuneration, but

instead were for her direct personal benefit and to cover Gungi's out-of-pocket expenses on

Davidson's care."

Like Davidson, Eva had a long and supportive relationship with Charles, noted by many
witnesses, including Ms. Simon in her report. (Exhibit 4). There relationship was also non-

commercial, as supported by Eva’s statements. Like Davidson, no monies paid to respondent, except

for repayment of expenses. (There was a loan, but that was paid back with interest and at a better
rate than decedent had gotten at the bank.) Also, the types of chores done by Eva are similar to
Davidson, such as running errands, shopping or hiring others to do more substantial cleaning.

Otherwise, like Davidson, during most of their relationship, the decedent was relatively independent.

IIL, THE PRESUMPTION DISQUALIFYING CARE CUSTODIANS UNDER PROBATE
CODE § 21350(A) DOES NOT APPLY BECAUSE DONOR OBTAINED A CERTIFICATE
OF INDEPENDENT REVIEW UNDER § 21351,

Subsequent to the execution of the Revocable Living Trust Agreement of Charles Actis and

the pour over Will, an independent attorney, Gregory P. O’Keeffe, Esq., reviewed said documents

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with Charles Actis on the nature and consequences of the transfers to Eva Knott contained in said
instruments. In his Certificate of Independent Review, attached hereto as Exhibit 7), Mr. O’Keeffe
states that he is in a position to advise Mr. Actis independently and impartially as to the
consequences of the transfer, and then states "On the basis of this counsel, I conclude that the
transfer, or transfers, in the instruments that othenvise might be invalid under Probate Code

Section 21350 are valid because such transfer, or transfers, are not the product of fraud,

menace, duress, or undue influence,"

According to Probate Code § 21351(b), the presumption of invalidity of donative transfers to
care custodians of dependent adults under section 21350(a) does not apply, where "(t]he instrument
is reviewed by an independent attorney who (1) counsels the client (transferor) about the nature and
consequences of the intended transfer, (2) attempts to determine if the intended consequence is the
result of fraud, menace, duress, or undue influence, and (3) signs and delivers to the transferor an

original certificate . .. with a copy delivered to the drafter,"

Although the main mle of law decided in Osomio v. Weingarten is whether an attomey owed

a duty of care to a third party donee, the underlying issue deals directly with Probate § 21350 and
§21351(b). (Osorio v. Weingarten, (2004) 124 Cal.App.4th 304, 329) The appellate court found
that the attorney, Weingarten, breached his duty of care to the plaintiff because she may have
avoided disqualification under 21350 if the donor had been advised to get a Certificate of
Independent Review under §21351(b).

"..Weingarten was negligent not only by failing to advise Ellis of the
consequences of section 21350(a); he was also negligent in failing to address
Osornio's presumptive disqualification by making arrangements to refer Ellis
to independent counsel to advise her and to provide a Certificate of
Independent Review required by section 21351(b).

The Osario court notes the absolute importance and complete defensibility of the Certificate

of Independent Review.

..absent steps taken under section 21351(b), the subject transfer to the proposed transferee, if
challenged, will have a significant likelihood of failing because of the proposed transferee's

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* MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYvo | C C
. presumptive disqualification under section 21350(a); and (2) to recommend that the client seek
independent counsel in an effort to obtain a Certificate of Independent Review provided under

: ) 2 | section 21351(b). (Osomio at 334)
oa 3
Thus, even assuming, arguendo, that Respondent is considered a care custodian, the Decedent
4
obtained a Certificate of Independent Review which removes Respondent as a presumed
5
disqualified beneficiary under Section 21350.
6
7 CONCLUSION
8 It is therefore submitted that the overwhelming evidence in this matter shows:
aha. That years prior to his ever meeting Eva Knott, Charles Actis made it clear to numerous
10 people that he was afraid of his estranged relatives, felt they were only interested in
n getting his money, and that he did not want to leave his estate to them.
12 +
2. Charles Actis and Eva Knott became very good friends and he told friends and
13 .
neighbors that he wanted to leave the bulk of his estate to her.
14
y 15 3. That at the time of making a Will and Trust, Charles Actis was mentally competent and
16 did not suffer from undue influence as confirmed by Drs. Lew and Vella from Kaiser
7 Hospital in San Francisco, Barbara Simon from Protective Services for Seniors, Gregory
18 O'Keeffe, Esq., and numerous friends and neighbors,
19] 4 That Charles Actis and Eva Knott were merely good friends and she was not his "care
20 custodian", as defined by Probate Code §21350 et seq.
217 5 That in the last years of the life of Charles Actis, it was Eva Knott who befriended and
22 aided him, not his half-brother and his half-brother’s children,
23 6. That the presumption set forth in Probate Code §21350(a) regarding care custodians
24 does not apply in this case due to the fact that there was, in fact, a Certificate of
25 Independent Review by Gregory P. O'Keeffe, Esq.
26
7. That the estranged relatives of Charles Actis should not be able to defeat his clearly
27
4) expressed testamentary wishes and claim his estate for themselves.
. 28
8.

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WHEREFORE, Respondent EVA KNOTT requests that the Petition of CAROL
MITCHELL to determine the validity of purported Will and Trust and to impose constructive
trust of Charles Actis be denied, and that Respondent be awarded costs of court, reasonable

attorneys fees, and such other and further relief as the court deems proper.

, 2005

* MEMORANDUM OF POINTS AND AUTHORITIES IN RE PETITION TO DETERMINE VALIDITYLegal Tabs Co, 1-800-322-3022

Recycted & Stock # R-EXA-5-B

EXHIBIT S“1
2 SUPERIOR COURT OF THE STATE OF CALIFORNIA
3 COUNTY OF SAN FRANCISCO
4 UNLIMITED CIVIL JURISDICTION
5. ---000---
6 .
“7 ESTATE OF: , No. PES 05-287457
8 CHARLES ACTIS CERTIFIED COPY }
9 Decedent
10
11 CAROL MITCHELL,
12 Contestant, .
13 vs.
14 EVA KNOTT,
15 : . Respondent.
16
17
18 : Deposition of
19 BARBARA SIMON
20 , _ Volume.I, Pages 1 - 190
“21 , Thursday, : June 29, 2006
22
23
24 /
25° REPORTED BY: ROHAN MOYAL, CSR NO. 3702
1

ROHAN REPORTING SERVICE, INC. (925) 827-4097
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