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BARBARA BARTOSHUK
979 Arlington Rd.
Redwood City, CA, 94062
650-670~7935
bbartoshuk@gmajl.com
BARBARA BARTOSHUK, IN PRO PER
SUPERIOR COURT OF THE STATE OF
CALIFORNIA
FOR THE COUNTY OF SAN MATEO
In the matter of the ) CASE NO. PRO 122577
STUART G. WHITTELSEY JR. FAMJLY )
TRUST, ) Judge: Hon. George A. Miram
-
) Trial Date: None
BARB !
B a
A. BARTOSHUK ) Action Filed: July 31, 2012
)
)
Petitioner, )
v.
CARLEEN WHITTELSEY, ) (AMENDED)
Individually, as )
Trustee of the Stuart G. Whittelsey, Jr.Family )
Trust, and as Trustee of the Carleen PLAINTIFF BARBARA BARTOSHUK’S
Trust dated June 7, 2010
Whittelsey ) REPLY TO DEFENDANTS’ CARLEEN
WHITTELSEY, BRUCE ROBERTS, AND
3
Respondent. HOPKINS & CARLEY’S OPPOSITION
) MOTION TO CON SOLIDATE CASE NO. TO
.
"mewswwwwwmw CIV531589 WITH CASE No. PR0122577
'
;
) Date: October 31, 2016 ‘
) Time:
BARBARA BARTOSHUK ) 9:00am
J
Dept. Dept.28
) Judge: The Honorable George A. Miram
Plaintiff,
)
vs. *
- )
CARLEEN WHITTELSEY, an individual; )
CARLEEN WHITTELSEY, Trustee of the Stu
G. Whittelsey Jr. Family
‘
)
Trust; CASE NO‘ CIV 531589
BRUCE ROBERTS, an individual; ugei
)
BRUCE ROBERTS, Agent, Hopkins & Tn?” Dafiei None
Carley A )
Law Corporation; ) Action Flled.‘ December 4, 2014
HOPKINS & CARLEY, A Law Corporation; and
Does 1 through 20 inclusive 3
Defendant(s).
._
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REPLY
Reply
. 232395
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Banoshuk Reply to Dcfcndants’
_1_ L. Willi”llllllflllllmlll
_ ._____
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Opposition to Motion to Consolidate Case
No. CIV531589 with Case No.
PR0122577
I. INTRODUCTION
Defendants assert several reasons in their Oppositions why the Court should deny any
consolidation: ( 1) California Probate Code Sections 1300 and 1310(a), citing an automatic stay to
the Probate Court Order regarding the “Woodside Allocation Provision”, (2) consolidation is
premature given uncertainty after the Court of Appeal ruling, (3) that the two actions have differing
facts, different legal theories, and will be tried by different adjudicators, and (4) a jury trial would
be unmanageable for the trier of fact. The Defendants’ arguments in opposition to Bartoshuk’s
motion for consolidation adjust the truth and are misleading or put they forth a presupposed and
unconfirmed belief as fact.
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ll II. BACKGROUND AND ISSUES
12 Defendant Whittelsey is Correct in stating both the Probate and Civil actions relate to the
13 enforceability and the construction of the Woodside Allocation Provision within the Stuart G.
14 Whittelsey Jr., Family Trust (“Trust”). However, the statement simply asserting the two actions
15 “have differing facts” and “different legal theories” is erroneous and Attorney Defendants declare
16 there is “virtually no support for her [Bartoshuk] claim that the cases are similar”. Although there
17 are several matters of dispute, those issues all pertain to the construction and administration of the
18 Stuart G. Whittelsey Jr. Family Trust and the parties involved, which are the same in both cases.
19 Furthermore, the questions of fact that must be answered regarding those issues in these two cases
20 are overwhelmingly more than similar... they are the same.
21 As Petitioner in the Probate matter, Bartoshuk sought interpretation of the Woodside
22 Allocation Provision as written and Ms. Whittelsey’s adherence to its plain language. Due to Ms.
23 Whittelsey’s three petitions in Probate all seeking to remove provisions or redesign Stuart’s Trust in
24 some way after his death, the Defendants’ decisions and behavior concerning the Trust’s
25 construction, amendments, administration and accounting have moved the questions of fact and the
26 issues those facts will clarify way beyond just the Woodside Allocation Provision and beyond just
27 facts occurring before Stuart’s death. Certainly Mr. Roberts is not removed from the Probate case
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PR0122577
for he and Ms. Whittelsey put his actions regarding Trust construction, administration, and
accounting at issue with the inclusion of Mr. Roberts’ declaration that Stuart personally told him he
wanted to change his separate property designation and that he personally witnessed Stuart rip up
one of his two original Separate Property Agreements in 2002.
Ms. Bartoshuk declares in both cases the Woodside Property remained Stuart’s separate
property and the provisions within the Trust point to his intention of maintaining control of his
property whether he died first or not. Also, except for the Community Property Schedule ‘A’, the
asset allocation, disposition, and protection provisions within the Trust and Separate Property
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Agreement are in line with Stuart’s intentions. Defendant Whittelsey insists the Woodside Property
10 is community property, the Woodside Allocation Provision was revoked, and other provisions need
11 to be changed or deleted to bring the Trust in line with Stuart’s intentions. The truthfulness of these
12 issues are questions of fact that must be answered by reference to facts and evidence as well as
13 inferences arising from those facts. Relevant in the Civil matter as they relate to undue influence in
14 the Trust’s construction and amendments and to concealment, misrepresentation, and inheritance
15 interference as they relate to amendments, assets, and administration after Stuart’s death. Relevant
16 in the Probate matter as they relate to asset evaluation, allocation and disposition as well as the
17 issues involving deleting, altering, or ignoring irrevocable Trust provisions. These questions of fact
18 and issues are common to both cases encompassing the decisions and behavior in creating and
19 amending Stuart’s Trust as well as its administration after his death.
2o Ms. Bartoshuk declares in both cases Defendants Whittelsey and Roberts knew what
21 Stuart’s Trust provided for, intentionally disregarded Stuart’s intentions and their duty towards him,
22 chose to conceal and misrepresent documents and Trust administration to Stuart’s children and
23 intentionally ignored certain provisions for self—gain. Ms. Whittelsey has claimed it’s all a
24 misunderstanding and that she didn’t know what was written in the Trust. All she knows is that
25 Stuart gave her half of his entire estate, including the Woodside Property, to do with as she pleased
26 for the benefit of her and her children. Mr. Roberts insists he just made some forgetful mistakes
27 and they both discerned Stuart’s children didn’t need to know. The truthfiilness of these matters of
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. ClV531589 with Case No. PR0122577
dispute are questions of fact that must be answered by reference to facts and evidence as well as
inferences arising from those facts. Relevant in the Civil matter as they relate to concealment,
misrepresentations, and inheritance interference regarding allaspects of Trust administration,
including asset evaluation, allocation, disposition, and accounting. Relevant in the Probate matter in
all aspects of Trust administration including asset evaluation, allocation, disposition, and accounting
along with deleting, altering, or ignoring irrevocable Trust provisions. These questions of fact and
issues are common to both cases encompassing the decisions and behavior in creating and
amending Stuart’s Trust as well as all aspects of administration after his death.
10 IV. ARGUMENT
11 When actions involving a common question of law or fact are pending before the court, it
12 may order ajoint hearing or trial of any or all the matters in issue in the actions; it may order all the
13 actions consolidated and it may make such orders concerning the proceeding therein as may tend to
14 avoid unnecessary costs or delay. Code Civ. Proc. § 1048(a). The purpose of consolidating two
15 cases with common questions of fact or legal issues is to enhance trial court efficiency by avoiding
16 unnecessary duplication of evidence and procedures, and to avoid the danger of inconsistent
17 adjudications. Plaintiff Bartoshuk’s consolidation request is for the purposes of continued
18 discovery, sharing discovery, preparation of one record, forging ahead in matters this Court deems
19 relevant to both cases that are unaffected by the still pending Appellate decision, pre-tiial motions,
20 and perhaps a trial should the Court deem that appropriate. Not only is the Trial Court given
21 considerable discretion with respect to how to consolidate cases, either in whole or in part,
22 discretion is also given for case management. California Civil Code of Procedure Sections 916(a)(b)
23 addresses timely progress of pending matters when there is an outstanding appeal decision.
24 (a) “Except as provided in Sections 917.] to 917.9, inclusive, and in Section 116.810, the
perfecting of an appeal stays proceedings in the trial court upon thejudgment or order
25 appealed from or upon the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed upon any other matter
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embraced in the action and not affected by the judgment or order”.
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PROl22577
(b) When there is a stay of proceedings other than the enforcement of thejudgment, the trial
court shall have jurisdiction of proceedings related to the enforcement of the judgment as
well as any other matter embraced in the action and not affected by the judgment or order
appealed from. [Emphasis added]
Attorney Defendants argue the meaning of the terms “embraced therein or affected thereby” within
the Code of Civil Procedure §916(a) in support of a stay upon the judgment or order appealed from.
But, what is interesting to note is that the legislature chose to use the same terms in giving the Trial
Court discretion to discern what matters it may proceed upon. This reflects not just a most generous
boundary, but also confidence and the ability of the Trial Court to properly manage such decisions.
Defendants’ arguments opposing any and all consolidation and all possible forward progress in
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both cases is unmerited.
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A. PROBATE CODE § 1310(a) AND CIVIL CODE OF PROCEDURE § 916(a)
12 DO NOT MANDATE A STAY ON ALL PROCEEDINGS DENYING THE
TRIAL COURT ANY DISCRETION
13
Defendants put forth that Probate Code Section 1310(a) mandates an automatic stay, but
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once again exclude the exception stated in §1310(a) that is spelled out in Probate Code Section
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1310(b) which gives the trial court discretion to act:
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“Notwithstanding that an appeal is taken from the judgment or order, for the purpose
18 of preventing injury or loss to a person or property, the trial court may direct the
exercise of the powers of the fiduciary. . . as if no appeal were pending. All acts of
19 the fiduciary pursuant to the directions of the court made under this subdivision are
valid, irrespective of the result of the appeal. An appeal of the directions made by
20 the court under this subdivision shall not stay these directions”.
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22 Furthermore, Ms. Whittelsey’s argument that Probate Code Section 1310(d) “addresses the
23 application of C.C.P.§917 to probate cases” nullifying Plaintiff” s reliance on CCP§917 regarding an
24 automatic stay in the trial court simply doesn’t make sense and doesn’t even apply. Probate Code
25 Section 1310(d) states:
26 “An appeal shall not stay the operation and effect of the judgment or order if the
court requires an undertaking, as provided in Section 917.9 of the Code of Civil
27
Procedure, and the undertaking is not given”.
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Bartoshuk Reply to Dcfendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577
California Code of Civil Procedure Section 917.9 states:
“The perfecting of an appeal shall not stay enforcement of the judgment or order in
cases not providedfor in Sections 917.1 to 917.8, inclusive, If the trial court, in its
discretion, requires an undertaking and the undertaking is not given. ..”.
Application of PROB§ 1310(d) and CCP§ 917.9 are only relevant “if the court requires an
undertaking” and “the undertaking is not given” and in cases “not provided for in Sections 917.1 to
917.8, inclusive. . This does not apply here. An undertaking was not required by the court and
the stay requiring Ms. Whittelsey to execute a deed to convey back to Stuart’s Trust 42.0549% of
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the Woodside Property was dissolved. Due to the exceptions as part of Probate Code Section
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1310(a)(b) and Civil Code of Procedure Section 916 (pp.4-5 above), what does apply is Code of
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Civil Procedure Section 917.4:
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“The perfecting of an appeal shall not stay enforcement of the judgment or order in
14 the trial court if the judgment or order appealed from directs the sale, conveyance or
delivery of possession of real property which is in the possession or control of the
15 appellant or the party ordered to sell, convey or deliver possession of the property,
unless an undertaking in a sum fixed by the trial court is given. ..”.[Emphasis added]
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17 Attorney Defendants additionally argue that CCP §917.4 is “inapplicable because the order
18 on appeal does not require delivery of possession of the property. The only portion of the trial
19 court’s order dealing with property required the Trustee to “execute a deed transferring 42.0549%
20 of the Fox Hollow Property”.1 As a matter of clarity, within CCP §917.4 one of the reasons to not
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stay the judgment or order is if it directs conveyance of real property. The definition of conveyance
22 . is a legal document (deed) effecting the process of transferring real property. Therefore, CCP
23 §917.4 is applicable.
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Attorney Defendants’ Opposition to Motion to Consolidate Case No. CIV 531589 with Case No. PRO 122577, pg.9.
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577
B. NOTWITHSTANDIN G THE PROBATE CASE IS OLDER, AN
INTERPRETATION DECISION HAS BEEN HANDED DOWN, AND N O
DISCOVERY HAS BEEN INITIATED IN THE CIVIL CASE,
CONSOLIDATION AT THIS THVIE, IN WHOLE OR IN PART, WILL
AVOID DUPLICATION OF PROCEDURE, MAXflVIIZE COURT
EFFICIENCY AND PREVENT PREJUDICE.
The purpose underlying consolidation of actions is to promote trial convenience and
economy by avoiding duplication of procedure, particularly in the proof of issues common to both
actions. See, McClure, on Behalf of Caruthers v. Donovan, 33 Cal. 2d 717, 722—23, (1949). Since
there has been some discovery in the Probate case and since both cases overwhelmingly include
common questions of fact, common issues relating to those facts and involve the same people,
duplication of discovery already completed and duplication of any further discovery in either case is
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not efficient and does not make economic sense. Most importantly, Plaintiff could suffer significant
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prejudice should actions already testified to regarding the creation and administration of Stuart’s
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Trust be suppressed, altered, denied, or a completely new narrative introduced if all new discovery
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is required in the Civil matter. Consequently, consolidating these two cases for purposes of one
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court record and sharing all discovery both past and future is most prudent and timely. The
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interpretation decision in the Trial Court did not change anything in the Trust as written and
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authorized by Stuart and Carleen’s signatures. There has been no trial commenced in either action
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and no examination of those common questions of fact that must be answered. Therefore, whether
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the Appellate Court rules to uphold or remand the Tiial Court’s decision, the current point of
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development in both cases is most appropriate to consolidate, either in whole or in part, at this
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stage.
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C. THE APPELLATE COURT DECISION IN THE PROBATE COURT DOES
23 NOT NEGATE MATTERS OF DISPUTE IN THE CIVIL ACTION
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25 Defendants continue to assert the Appellate Court could make a ruling agreeing with Ms.
26 Whittelsey’s interpretation of the issues, rule the Woodside Allocation Provision deleted from the
27 Trust and find the Woodside Property as community property. Yet, this cannot be. “The very
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PROl22577
essence of civil liberty certainly consists in the right of every individual to claim the protection of
the laws, whenever he receives an injury. One of the first duties of government is to afford that
protection”.2 A ruling such as Defendants suggest would only consider the evidence presented by
Ms. Whittelsey and in her favor, which was only not disputed by Bartoshuk for the sole purposes of
summary judgment, evidenced by the following contained in the summary judgment motions and
the statements of undisputed facts:
“This statement of facts is submitted as undisputed solely for purposes of this Motion. At
trial, Ms. Bartoshuk will dispute many of these facts. Myers v. Trendwest Resorts, Inc.
(2009) 178 Cal.App 4th 73 5, 747 (neither motion for summary judgment nor statement of
undisputed facts constitutes pleadings or admissions and are concessions only for purposes
of the summary judgment motion) (citing Weil & Brown, Cal. Practice Guide: civil
10 Procedure Before Trial (The Rutter Group 2008 1] 10: 194)”.3
11 “In moving for summary judgment, a party may rely on the doctrine of judicial admission by
utilizing allegations in the opposing party’s pleadings to eliminate triable issues of material
12 fact.” Myers v. Trendwest Resorts, Inc. 178 Cal.App. 4“1 735, 747. Ms. Bartoshuk
(2009)
cites to facts alleged in both the Petition for Modification and the Petition of Carl een
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Whittelsey, Individually, To: (1) Reform the Trust based on Scrivener’s Error; and (2)
14 Construe Trust Provisions re Funding of Blakey Trust (“Petition for Reformation”) filed by
Petitioner on October 8, 2013”.4
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Therefore, it follows whether the Appellate Court upholds the Probate Court’s ruling that
17 Stuart’s Trust or if it remands the case
Ms. Whittelsley is time barred from altering provisions in
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back for trial on the issues, the common questions of fact and the common matters in dispute in both
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cases and the evidence to answer those questions of fact in both cases remain and are immensely the
20 same for they all deal with what took place in creating and amending Stuart’s Trust along with all
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aspects of its administration after Stuart’s death.
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2Marbwy v. Madison, 5 US. 1Cranch 137,163 (1803).
25 3
Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment on Petition for
Modification, pg.1; Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication
26
on Petition for Reformation, pg. 1.
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Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment on Petition for
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Modification, pg.2; Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication
on Petition for Reformation, pg.2.
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577
Defendants argue the Probate action will “shape the issues that are relevant to the civil
action, and in some cases are necessary prerequisites to those rulings”. Since the questions of fact
are the same in both cases, and if according to Attorney Defendants, it’s necessary to “shape issues”
in the Civil matter by prior rulings in Probate, that would imply a determination on the questions of
fact. If matters of dispute regarding fraudulent actions by Defendants concerning Stuart’s Trust are
dependent or must be shaped in any way by findings of the same questions of fact in Probate,
certainly justice has gone awry. And, the question of “adequate remedy” in probate is not possible.
Allegations of fraud are not included in the Probate action and holding all Defendants accountable
for their decisions and behavior cannot be adequately addressed only in the Probate matter.
10 D. IN CON SISTENT ADJUDICATIONS ARE MORE LIKELY WITH
SEPARATE TRIALS DUE TO THE SANIE QUESTIONS OF FACT AND
11 MATTERS OF DISPUTE IN BOTH CASES AND THE COURT’S ABILITY
TO PROPERLY MANAGE AND INFORM A JURY REGARDING THE
12
EVIDENCE TO THOSE SAN[E QUESTIONS OF FACT IS NOT BEYOND
13 THE CONIPETANCE OF THE SAN MATEO COUNTY JUDICIARY.
14
Prior to the Trial Court’s summary judgment ruling, preparations for trial were underway in
15
the Probate Court. Due to the trial’s proposed length, the Court had already ordered the trial be held
16
before another trier of fact within the County’s civil calendar. Therefore, trials before different
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adjudicators is an unconfirmed presumption. Attorney Defendants use State Farm v. Superior
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Court (1956) 47 Cal.2d.428, to support their argument of a likely confused jury. But, in the State
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Farm (supra) case the possible jury confusion entailed the potential for State Farm arguing two
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different positions before the jury to maximize their self-interest, (1) that passengers in the car were
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“paying” riders and (2) that the riders were “guests”. The State Farm (supra) case is not applicable.
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What different positions or changes to their truth would Defendants argue? To not consolidate
because Defendants could possibly take different positions on the same events invalidates the very
24
nature of justice. Indeed, there was strong dissent within the decision from Justice J. Carter:
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“With respect to the inconsistent positions which it is claimed the consolidation will require
26 the insurer to take, it should be first observed that the majority is itself inconsistent as it
arrives at the conclusion of inconsistent positions while at the same time holding that a
27 different test must be applied. . .there being a different test, the insurer is not required to take
inconsistent positions. Hence there is no merit in that ground for denying consolidation of
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577
the actions. In addition, however, it should be noted that lawsuits are not games in which
the cleverest mover should prevail. The ultimate factor involved is getting at the true facts
and that should not depend on consideration for the contentions that may or may not be
made. . .We do not know whether that is true or not because we do not know what the
evidence will be... None of these things will be known with clarity and certainty until after
the consolidated cases are tried”. State Farm, supra at 434 & 437.
Whenever there is more than one defendant named in an action, the potential exists that a
jury or judge could ultimately conclude differently among the parties. Collateral estoppel, as it
relates to Ms. Whittelsey
\OOO\]O\
as defendant in the Probate case does not create prejudice for the Attorney
Defendants. Since the Trust remains as written, and will be regardless of the Appellate Court
ruling, and there has been no trial at this point with respect to the common questions of fact and
10
evidence in both cases, there is no immediate apparent reason the Court would need to explain
11
confiising underlying decisions or that a preliminary issue would necessan'ly be decided in the
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middle of the same trial. Because the matters of dispute and the questions of fact that must be
13
answered are the same, although evidence may end up proving fraudulent behavior by Ms.
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Whittelsey, she is not before the Court for fraud in Probate. On comparison, Barron ’s Dictionary 01
15
Legal Terms, Fifth Edition, does not equate fraud with bad faith, and there appears to be two
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important distinctions: while fraud does include some elements of bad faith, bad faith does not
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necessarily include fraud.
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V. CONCLUSION
2o
Where two cases contain common questions of fact or law, as the Stuart G.
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Whittelsey Jr. Family Trust probate matter and the Bartoshuk v. Whittelsey et al. civil matter
22
indisputably do, the decision to consolidate at this time, whether in whole or in part, is the sagacious
23
approach. Consolidation provides efficient and effective case management of both matters, creates
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one court record, allows for shared discovery, makes available forward progress on matters that are
25
deemed not affected by the pending Appellate Court decision, and maintains the most unprejudiced
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design and approach for’all parties. Being mindful that the terms of consolidation are subject to
27
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Battoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PROl22577
refinement and revision just like any other case management order, Plaintiff Bartoshuk, for all of
the foregoing reasons, humbly requests that the Court consolidate, either in whole or in part, the
civil action Bartoshuk v. Whittelsey, Case No. CIV 531589 with the probate matter in the Stuart G.
Whittelsey Jr. Family Trust, Case No. PRO 122577 for the purposes of continued and shared
discovery, forward progress on matters that are deemed not affected by the pending Appellate Court
decision, joint hearings relevant to both cases, preparation of one court record, and perhaps trial,
OO\]O’\
should that become necessary.
\O
10 Dated: October 25, 2016
11
12 Respectfully Submitted,
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15
16
V '
c/
Barbara Bartoshuk,
6'
. .
Plamuff,
.
1n Pro Per
Bartoshuk v. Whittelsey Case No. CIV 531589
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Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PR0122577
PROOF OF SERVICE
Case Name: Bartoshuk v. Whittelsey, et al.
Court: San Mateo County Superior Court
Case No.: CIV 531589
I am a citizen of the United States. My business address is 979 Arlington Rd., Redwood
City, CA 94062. I am over the age of 18 years. On the date set forth below, following ordinary
business practice, I served the following document(s):
(AMENDED) PLAINTIFF BARBARA BARTOSH UK’S REPLY TO DEFENDANTS
CARLEEN WHITTELSEY, BRUCE ROBERTS, AND HOPKINS & CARLEY’S
OPPOSITION TO MOTION TO CONSOLIDATE CASE NO. ClV531589 WITH CASE
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NO.PR012257 7
11
by electronically mailing a true and correct copy through the electronic mail system to the email
12
13
addresses listed below upon prior stipulation of the parties as personal service, according to
California Rules of Court, Rule 2.251 for electronic service.
14
Mr. Bruce MacLeod, Mr. Bradley A. Bening Mr. Craig Hansen
15
Willoughby, Stuart, Bening & Cook Hansen Law Firm
16 50 West San Fernando, Ste. 400 152 N. Third St, Ste. 530
San Jose, CA 95113 San Jose, CA 95112
17 (408) 289—1972 (408) 715-7980
Email: bruce@wsbclawyers.com Email: craig@hansenlawf1rm.net
18 Email: brad@wsbclav_vyers.com
Attorneys for Defendants Bruce Roberts Attorneys for Carleen Whittelsey,
19
and Hopkins & Carley Individually and as Trustee of the Stuart
20 G. Whittelsey Jr.Family Trust
21
22 I declare under penalty of perjury and under the laws of the State of California that the foregoing is
23 true and correct.
24 Dated: October 25, 2016
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BARBARA BARTOSHUK 979 Arlington Rd. Redwood City, CA, 94062 650-670~7935 bbartoshuk@gmajl.com BARBARA BARTOSHUK, IN PRO PER SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO In the matter of the ) CASE NO. PRO 122577 STUART G. WHITTELSEY JR. FAMJLY ) TRUST, ) Judge: Hon. George A. Miram - ) Trial Date: None BARB ! B a A. BARTOSHUK ) Action Filed: July 31, 2012 ) ) Petitioner, ) v. CARLEEN WHITTELSEY, ) (AMENDED) Individually, as ) Trustee of the Stuart G. Whittelsey, Jr.Family ) Trust, and as Trustee of the Carleen PLAINTIFF BARBARA BARTOSHUK’S Trust dated June 7, 2010 Whittelsey ) REPLY TO DEFENDANTS’ CARLEEN WHITTELSEY, BRUCE ROBERTS, AND 3 Respondent. HOPKINS & CARLEY’S OPPOSITION ) MOTION TO CON SOLIDATE CASE NO. TO . "mewswwwwwmw CIV531589 WITH CASE No. PR0122577 ' ; ) Date: October 31, 2016 ‘ ) Time: BARBARA BARTOSHUK ) 9:00am J Dept. Dept.28 ) Judge: The Honorable George A. Miram Plaintiff, ) vs. * - ) CARLEEN WHITTELSEY, an individual; ) CARLEEN WHITTELSEY, Trustee of the Stu G. Whittelsey Jr. Family ‘ ) Trust; CASE NO‘ CIV 531589 BRUCE ROBERTS, an individual; ugei ) BRUCE ROBERTS, Agent, Hopkins & Tn?” Dafiei None Carley A ) Law Corporation; ) Action Flled.‘ December 4, 2014 HOPKINS & CARLEY, A Law Corporation; and Does 1 through 20 inclusive 3 Defendant(s). ._ VVVVVVV Gvfigfi REPLY Reply . 232395 H Banoshuk Reply to Dcfcndants’ _1_ L. Willi”llllllflllllmlll _ ._____ ll Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577 I. INTRODUCTION Defendants assert several reasons in their Oppositions why the Court should deny any consolidation: ( 1) California Probate Code Sections 1300 and 1310(a), citing an automatic stay to the Probate Court Order regarding the “Woodside Allocation Provision”, (2) consolidation is premature given uncertainty after the Court of Appeal ruling, (3) that the two actions have differing facts, different legal theories, and will be tried by different adjudicators, and (4) a jury trial would be unmanageable for the trier of fact. The Defendants’ arguments in opposition to Bartoshuk’s motion for consolidation adjust the truth and are misleading or put they forth a presupposed and unconfirmed belief as fact. 10 ll II. BACKGROUND AND ISSUES 12 Defendant Whittelsey is Correct in stating both the Probate and Civil actions relate to the 13 enforceability and the construction of the Woodside Allocation Provision within the Stuart G. 14 Whittelsey Jr., Family Trust (“Trust”). However, the statement simply asserting the two actions 15 “have differing facts” and “different legal theories” is erroneous and Attorney Defendants declare 16 there is “virtually no support for her [Bartoshuk] claim that the cases are similar”. Although there 17 are several matters of dispute, those issues all pertain to the construction and administration of the 18 Stuart G. Whittelsey Jr. Family Trust and the parties involved, which are the same in both cases. 19 Furthermore, the questions of fact that must be answered regarding those issues in these two cases 20 are overwhelmingly more than similar... they are the same. 21 As Petitioner in the Probate matter, Bartoshuk sought interpretation of the Woodside 22 Allocation Provision as written and Ms. Whittelsey’s adherence to its plain language. Due to Ms. 23 Whittelsey’s three petitions in Probate all seeking to remove provisions or redesign Stuart’s Trust in 24 some way after his death, the Defendants’ decisions and behavior concerning the Trust’s 25 construction, amendments, administration and accounting have moved the questions of fact and the 26 issues those facts will clarify way beyond just the Woodside Allocation Provision and beyond just 27 facts occurring before Stuart’s death. Certainly Mr. Roberts is not removed from the Probate case 28 -2- . Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PR0122577 for he and Ms. Whittelsey put his actions regarding Trust construction, administration, and accounting at issue with the inclusion of Mr. Roberts’ declaration that Stuart personally told him he wanted to change his separate property designation and that he personally witnessed Stuart rip up one of his two original Separate Property Agreements in 2002. Ms. Bartoshuk declares in both cases the Woodside Property remained Stuart’s separate property and the provisions within the Trust point to his intention of maintaining control of his property whether he died first or not. Also, except for the Community Property Schedule ‘A’, the asset allocation, disposition, and protection provisions within the Trust and Separate Property V Agreement are in line with Stuart’s intentions. Defendant Whittelsey insists the Woodside Property 10 is community property, the Woodside Allocation Provision was revoked, and other provisions need 11 to be changed or deleted to bring the Trust in line with Stuart’s intentions. The truthfulness of these 12 issues are questions of fact that must be answered by reference to facts and evidence as well as 13 inferences arising from those facts. Relevant in the Civil matter as they relate to undue influence in 14 the Trust’s construction and amendments and to concealment, misrepresentation, and inheritance 15 interference as they relate to amendments, assets, and administration after Stuart’s death. Relevant 16 in the Probate matter as they relate to asset evaluation, allocation and disposition as well as the 17 issues involving deleting, altering, or ignoring irrevocable Trust provisions. These questions of fact 18 and issues are common to both cases encompassing the decisions and behavior in creating and 19 amending Stuart’s Trust as well as its administration after his death. 2o Ms. Bartoshuk declares in both cases Defendants Whittelsey and Roberts knew what 21 Stuart’s Trust provided for, intentionally disregarded Stuart’s intentions and their duty towards him, 22 chose to conceal and misrepresent documents and Trust administration to Stuart’s children and 23 intentionally ignored certain provisions for self—gain. Ms. Whittelsey has claimed it’s all a 24 misunderstanding and that she didn’t know what was written in the Trust. All she knows is that 25 Stuart gave her half of his entire estate, including the Woodside Property, to do with as she pleased 26 for the benefit of her and her children. Mr. Roberts insists he just made some forgetful mistakes 27 and they both discerned Stuart’s children didn’t need to know. The truthfiilness of these matters of 28 -3 - Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. ClV531589 with Case No. PR0122577 dispute are questions of fact that must be answered by reference to facts and evidence as well as inferences arising from those facts. Relevant in the Civil matter as they relate to concealment, misrepresentations, and inheritance interference regarding allaspects of Trust administration, including asset evaluation, allocation, disposition, and accounting. Relevant in the Probate matter in all aspects of Trust administration including asset evaluation, allocation, disposition, and accounting along with deleting, altering, or ignoring irrevocable Trust provisions. These questions of fact and issues are common to both cases encompassing the decisions and behavior in creating and amending Stuart’s Trust as well as all aspects of administration after his death. 10 IV. ARGUMENT 11 When actions involving a common question of law or fact are pending before the court, it 12 may order ajoint hearing or trial of any or all the matters in issue in the actions; it may order all the 13 actions consolidated and it may make such orders concerning the proceeding therein as may tend to 14 avoid unnecessary costs or delay. Code Civ. Proc. § 1048(a). The purpose of consolidating two 15 cases with common questions of fact or legal issues is to enhance trial court efficiency by avoiding 16 unnecessary duplication of evidence and procedures, and to avoid the danger of inconsistent 17 adjudications. Plaintiff Bartoshuk’s consolidation request is for the purposes of continued 18 discovery, sharing discovery, preparation of one record, forging ahead in matters this Court deems 19 relevant to both cases that are unaffected by the still pending Appellate decision, pre-tiial motions, 20 and perhaps a trial should the Court deem that appropriate. Not only is the Trial Court given 21 considerable discretion with respect to how to consolidate cases, either in whole or in part, 22 discretion is also given for case management. California Civil Code of Procedure Sections 916(a)(b) 23 addresses timely progress of pending matters when there is an outstanding appeal decision. 24 (a) “Except as provided in Sections 917.] to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon thejudgment or order 25 appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter 26 embraced in the action and not affected by the judgment or order”. 27 28 -4- Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PROl22577 (b) When there is a stay of proceedings other than the enforcement of thejudgment, the trial court shall have jurisdiction of proceedings related to the enforcement of the judgment as well as any other matter embraced in the action and not affected by the judgment or order appealed from. [Emphasis added] Attorney Defendants argue the meaning of the terms “embraced therein or affected thereby” within the Code of Civil Procedure §916(a) in support of a stay upon the judgment or order appealed from. But, what is interesting to note is that the legislature chose to use the same terms in giving the Trial Court discretion to discern what matters it may proceed upon. This reflects not just a most generous boundary, but also confidence and the ability of the Trial Court to properly manage such decisions. Defendants’ arguments opposing any and all consolidation and all possible forward progress in 10 both cases is unmerited. 11 A. PROBATE CODE § 1310(a) AND CIVIL CODE OF PROCEDURE § 916(a) 12 DO NOT MANDATE A STAY ON ALL PROCEEDINGS DENYING THE TRIAL COURT ANY DISCRETION 13 Defendants put forth that Probate Code Section 1310(a) mandates an automatic stay, but 14 once again exclude the exception stated in §1310(a) that is spelled out in Probate Code Section 15 1310(b) which gives the trial court discretion to act: 16 17 “Notwithstanding that an appeal is taken from the judgment or order, for the purpose 18 of preventing injury or loss to a person or property, the trial court may direct the exercise of the powers of the fiduciary. . . as if no appeal were pending. All acts of 19 the fiduciary pursuant to the directions of the court made under this subdivision are valid, irrespective of the result of the appeal. An appeal of the directions made by 20 the court under this subdivision shall not stay these directions”. 21 22 Furthermore, Ms. Whittelsey’s argument that Probate Code Section 1310(d) “addresses the 23 application of C.C.P.§917 to probate cases” nullifying Plaintiff” s reliance on CCP§917 regarding an 24 automatic stay in the trial court simply doesn’t make sense and doesn’t even apply. Probate Code 25 Section 1310(d) states: 26 “An appeal shall not stay the operation and effect of the judgment or order if the court requires an undertaking, as provided in Section 917.9 of the Code of Civil 27 Procedure, and the undertaking is not given”. 28 -5- Bartoshuk Reply to Dcfendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577 California Code of Civil Procedure Section 917.9 states: “The perfecting of an appeal shall not stay enforcement of the judgment or order in cases not providedfor in Sections 917.1 to 917.8, inclusive, If the trial court, in its discretion, requires an undertaking and the undertaking is not given. ..”. Application of PROB§ 1310(d) and CCP§ 917.9 are only relevant “if the court requires an undertaking” and “the undertaking is not given” and in cases “not provided for in Sections 917.1 to 917.8, inclusive. . This does not apply here. An undertaking was not required by the court and the stay requiring Ms. Whittelsey to execute a deed to convey back to Stuart’s Trust 42.0549% of 1o the Woodside Property was dissolved. Due to the exceptions as part of Probate Code Section 11 1310(a)(b) and Civil Code of Procedure Section 916 (pp.4-5 above), what does apply is Code of 12 Civil Procedure Section 917.4: 13 “The perfecting of an appeal shall not stay enforcement of the judgment or order in 14 the trial court if the judgment or order appealed from directs the sale, conveyance or delivery of possession of real property which is in the possession or control of the 15 appellant or the party ordered to sell, convey or deliver possession of the property, unless an undertaking in a sum fixed by the trial court is given. ..”.[Emphasis added] 16 17 Attorney Defendants additionally argue that CCP §917.4 is “inapplicable because the order 18 on appeal does not require delivery of possession of the property. The only portion of the trial 19 court’s order dealing with property required the Trustee to “execute a deed transferring 42.0549% 20 of the Fox Hollow Property”.1 As a matter of clarity, within CCP §917.4 one of the reasons to not 21 stay the judgment or order is if it directs conveyance of real property. The definition of conveyance 22 . is a legal document (deed) effecting the process of transferring real property. Therefore, CCP 23 §917.4 is applicable. 24 25 26 27 1 Attorney Defendants’ Opposition to Motion to Consolidate Case No. CIV 531589 with Case No. PRO 122577, pg.9. 23 _ 6 _ Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577 B. NOTWITHSTANDIN G THE PROBATE CASE IS OLDER, AN INTERPRETATION DECISION HAS BEEN HANDED DOWN, AND N O DISCOVERY HAS BEEN INITIATED IN THE CIVIL CASE, CONSOLIDATION AT THIS THVIE, IN WHOLE OR IN PART, WILL AVOID DUPLICATION OF PROCEDURE, MAXflVIIZE COURT EFFICIENCY AND PREVENT PREJUDICE. The purpose underlying consolidation of actions is to promote trial convenience and economy by avoiding duplication of procedure, particularly in the proof of issues common to both actions. See, McClure, on Behalf of Caruthers v. Donovan, 33 Cal. 2d 717, 722—23, (1949). Since there has been some discovery in the Probate case and since both cases overwhelmingly include common questions of fact, common issues relating to those facts and involve the same people, duplication of discovery already completed and duplication of any further discovery in either case is 11 not efficient and does not make economic sense. Most importantly, Plaintiff could suffer significant 12 prejudice should actions already testified to regarding the creation and administration of Stuart’s 13 Trust be suppressed, altered, denied, or a completely new narrative introduced if all new discovery 14 is required in the Civil matter. Consequently, consolidating these two cases for purposes of one 15 court record and sharing all discovery both past and future is most prudent and timely. The 16 interpretation decision in the Trial Court did not change anything in the Trust as written and 17 authorized by Stuart and Carleen’s signatures. There has been no trial commenced in either action 18 and no examination of those common questions of fact that must be answered. Therefore, whether 19 the Appellate Court rules to uphold or remand the Tiial Court’s decision, the current point of 2o development in both cases is most appropriate to consolidate, either in whole or in part, at this 21 stage. 22 C. THE APPELLATE COURT DECISION IN THE PROBATE COURT DOES 23 NOT NEGATE MATTERS OF DISPUTE IN THE CIVIL ACTION 24 25 Defendants continue to assert the Appellate Court could make a ruling agreeing with Ms. 26 Whittelsey’s interpretation of the issues, rule the Woodside Allocation Provision deleted from the 27 Trust and find the Woodside Property as community property. Yet, this cannot be. “The very 28 -7- Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PROl22577 essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection”.2 A ruling such as Defendants suggest would only consider the evidence presented by Ms. Whittelsey and in her favor, which was only not disputed by Bartoshuk for the sole purposes of summary judgment, evidenced by the following contained in the summary judgment motions and the statements of undisputed facts: “This statement of facts is submitted as undisputed solely for purposes of this Motion. At trial, Ms. Bartoshuk will dispute many of these facts. Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App 4th 73 5, 747 (neither motion for summary judgment nor statement of undisputed facts constitutes pleadings or admissions and are concessions only for purposes of the summary judgment motion) (citing Weil & Brown, Cal. Practice Guide: civil 10 Procedure Before Trial (The Rutter Group 2008 1] 10: 194)”.3 11 “In moving for summary judgment, a party may rely on the doctrine of judicial admission by utilizing allegations in the opposing party’s pleadings to eliminate triable issues of material 12 fact.” Myers v. Trendwest Resorts, Inc. 178 Cal.App. 4“1 735, 747. Ms. Bartoshuk (2009) cites to facts alleged in both the Petition for Modification and the Petition of Carl een 13 Whittelsey, Individually, To: (1) Reform the Trust based on Scrivener’s Error; and (2) 14 Construe Trust Provisions re Funding of Blakey Trust (“Petition for Reformation”) filed by Petitioner on October 8, 2013”.4 15 16 Therefore, it follows whether the Appellate Court upholds the Probate Court’s ruling that 17 Stuart’s Trust or if it remands the case Ms. Whittelsley is time barred from altering provisions in 18 back for trial on the issues, the common questions of fact and the common matters in dispute in both 19 cases and the evidence to answer those questions of fact in both cases remain and are immensely the 20 same for they all deal with what took place in creating and amending Stuart’s Trust along with all 21 aspects of its administration after Stuart’s death. 22 23 24 2Marbwy v. Madison, 5 US. 1Cranch 137,163 (1803). 25 3 Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment on Petition for Modification, pg.1; Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication 26 on Petition for Reformation, pg. 1. 4 Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment on Petition for 27 Modification, pg.2; Separate Statement of Undisputed Material Facts in Support of Motion for Summary Adjudication on Petition for Reformation, pg.2. 28 _ _ 8 Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577 Defendants argue the Probate action will “shape the issues that are relevant to the civil action, and in some cases are necessary prerequisites to those rulings”. Since the questions of fact are the same in both cases, and if according to Attorney Defendants, it’s necessary to “shape issues” in the Civil matter by prior rulings in Probate, that would imply a determination on the questions of fact. If matters of dispute regarding fraudulent actions by Defendants concerning Stuart’s Trust are dependent or must be shaped in any way by findings of the same questions of fact in Probate, certainly justice has gone awry. And, the question of “adequate remedy” in probate is not possible. Allegations of fraud are not included in the Probate action and holding all Defendants accountable for their decisions and behavior cannot be adequately addressed only in the Probate matter. 10 D. IN CON SISTENT ADJUDICATIONS ARE MORE LIKELY WITH SEPARATE TRIALS DUE TO THE SANIE QUESTIONS OF FACT AND 11 MATTERS OF DISPUTE IN BOTH CASES AND THE COURT’S ABILITY TO PROPERLY MANAGE AND INFORM A JURY REGARDING THE 12 EVIDENCE TO THOSE SAN[E QUESTIONS OF FACT IS NOT BEYOND 13 THE CONIPETANCE OF THE SAN MATEO COUNTY JUDICIARY. 14 Prior to the Trial Court’s summary judgment ruling, preparations for trial were underway in 15 the Probate Court. Due to the trial’s proposed length, the Court had already ordered the trial be held 16 before another trier of fact within the County’s civil calendar. Therefore, trials before different 17 adjudicators is an unconfirmed presumption. Attorney Defendants use State Farm v. Superior 18 Court (1956) 47 Cal.2d.428, to support their argument of a likely confused jury. But, in the State 19 Farm (supra) case the possible jury confusion entailed the potential for State Farm arguing two 2o different positions before the jury to maximize their self-interest, (1) that passengers in the car were 21 “paying” riders and (2) that the riders were “guests”. The State Farm (supra) case is not applicable. 22 What different positions or changes to their truth would Defendants argue? To not consolidate because Defendants could possibly take different positions on the same events invalidates the very 24 nature of justice. Indeed, there was strong dissent within the decision from Justice J. Carter: 25 “With respect to the inconsistent positions which it is claimed the consolidation will require 26 the insurer to take, it should be first observed that the majority is itself inconsistent as it arrives at the conclusion of inconsistent positions while at the same time holding that a 27 different test must be applied. . .there being a different test, the insurer is not required to take inconsistent positions. Hence there is no merit in that ground for denying consolidation of 28 _ _ 9 Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. CIV531589 with Case No. PR0122577 the actions. In addition, however, it should be noted that lawsuits are not games in which the cleverest mover should prevail. The ultimate factor involved is getting at the true facts and that should not depend on consideration for the contentions that may or may not be made. . .We do not know whether that is true or not because we do not know what the evidence will be... None of these things will be known with clarity and certainty until after the consolidated cases are tried”. State Farm, supra at 434 & 437. Whenever there is more than one defendant named in an action, the potential exists that a jury or judge could ultimately conclude differently among the parties. Collateral estoppel, as it relates to Ms. Whittelsey \OOO\]O\ as defendant in the Probate case does not create prejudice for the Attorney Defendants. Since the Trust remains as written, and will be regardless of the Appellate Court ruling, and there has been no trial at this point with respect to the common questions of fact and 10 evidence in both cases, there is no immediate apparent reason the Court would need to explain 11 confiising underlying decisions or that a preliminary issue would necessan'ly be decided in the 12 middle of the same trial. Because the matters of dispute and the questions of fact that must be 13 answered are the same, although evidence may end up proving fraudulent behavior by Ms. 14 Whittelsey, she is not before the Court for fraud in Probate. On comparison, Barron ’s Dictionary 01 15 Legal Terms, Fifth Edition, does not equate fraud with bad faith, and there appears to be two 16 important distinctions: while fraud does include some elements of bad faith, bad faith does not 17 necessarily include fraud. 18 19 V. CONCLUSION 2o Where two cases contain common questions of fact or law, as the Stuart G. 21 Whittelsey Jr. Family Trust probate matter and the Bartoshuk v. Whittelsey et al. civil matter 22 indisputably do, the decision to consolidate at this time, whether in whole or in part, is the sagacious 23 approach. Consolidation provides efficient and effective case management of both matters, creates 24 one court record, allows for shared discovery, makes available forward progress on matters that are 25 deemed not affected by the pending Appellate Court decision, and maintains the most unprejudiced 26 design and approach for’all parties. Being mindful that the terms of consolidation are subject to 27 28 _10 - Battoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PROl22577 refinement and revision just like any other case management order, Plaintiff Bartoshuk, for all of the foregoing reasons, humbly requests that the Court consolidate, either in whole or in part, the civil action Bartoshuk v. Whittelsey, Case No. CIV 531589 with the probate matter in the Stuart G. Whittelsey Jr. Family Trust, Case No. PRO 122577 for the purposes of continued and shared discovery, forward progress on matters that are deemed not affected by the pending Appellate Court decision, joint hearings relevant to both cases, preparation of one court record, and perhaps trial, OO\]O’\ should that become necessary. \O 10 Dated: October 25, 2016 11 12 Respectfully Submitted, 13 14 15 16 V ' c/ Barbara Bartoshuk, 6' . . Plamuff, . 1n Pro Per Bartoshuk v. Whittelsey Case No. CIV 531589 17 18 19 20 21 22 24 25 26 27 28 -1]- Bartoshuk Reply to Defendants’ Opposition to Motion to Consolidate Case No. C1V531589 with Case No. PR0122577 PROOF OF SERVICE Case Name: Bartoshuk v. Whittelsey, et al. Court: San Mateo County Superior Court Case No.: CIV 531589 I am a citizen of the United States. My business address is 979 Arlington Rd., Redwood City, CA 94062. I am over the age of 18 years. On the date set forth below, following ordinary business practice, I served the following document(s): (AMENDED) PLAINTIFF BARBARA BARTOSH UK’S REPLY TO DEFENDANTS CARLEEN WHITTELSEY, BRUCE ROBERTS, AND HOPKINS & CARLEY’S OPPOSITION TO MOTION TO CONSOLIDATE CASE NO. ClV531589 WITH CASE 1o NO.PR012257 7 11 by electronically mailing a true and correct copy through the electronic mail system to the email 12 13 addresses listed below upon prior stipulation of the parties as personal service, according to California Rules of Court, Rule 2.251 for electronic service. 14 Mr. Bruce MacLeod, Mr. Bradley A. Bening Mr. Craig Hansen 15 Willoughby, Stuart, Bening & Cook Hansen Law Firm 16 50 West San Fernando, Ste. 400 152 N. Third St, Ste. 530 San Jose, CA 95113 San Jose, CA 95112 17 (408) 289—1972 (408) 715-7980 Email: bruce@wsbclawyers.com Email: craig@hansenlawf1rm.net 18 Email: brad@wsbclav_vyers.com Attorneys for Defendants Bruce Roberts Attorneys for Carleen Whittelsey, 19 and Hopkins & Carley Individually and as Trustee of the Stuart 20 G. Whittelsey Jr.Family Trust 21 22 I declare under penalty of perjury and under the laws of the State of California that the foregoing is 23 true and correct. 24 Dated: October 25, 2016 /¢ '.;.: I ,é’ f ‘\) flaw: -' _.., \‘k7 ,. ,-~ ..' - A (6:? r2- flip/£1 "s.f‘1;n \4‘, a??? bi)" r 3“,“"3‘ 1: " *IL"""¢S\‘~“"’ a. «a: ‘l /;‘_,_\ .2’ q .3 A". :2 "3:1: 1 ,. .