Motion for Judicial Notice in Machholz, Donald Jr vs. Cunningham Legal| Trellis.Law

On August 06, 2019 a Request,Application was filed involving a dispute between Donald Machholz, and Ascent Wealth Management, Cunningham Legal, James Cunningham, Preston Marx, for Civil-Roseville in the District Court of Placer County.

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09/24/2020
1 ALISON P. BUCHANAN – BAR NO. 215710
ASHLEE N. CHERRY – BAR NO. 312731
2 HOGE, FENTON, JONES & APPEL, INC.
60 South Market Street, Suite 1400
3 San Jose, California 95113-2396
Phone: 408.287.9501
4 Fax: 408.287.2583

5 Attorneys for Defendants
CUNNINGHAM LEGAL;
6 PRESTON MARX, III;
JAMES CUNNINGHAM; and
7 ASCENT WEALTH MANAGEMENT

8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF PLACER
10

11
DONALD MACHHOLZ, JR., Case No. SCV0043518
12
Plaintiff, REQUEST FOR JUDICIAL NOTICE IN
13 SUPPORT OF DEFENDANTS’ MOTION
v. TO CONTINUE OR VACATE TRIAL
14 DATE
CUNNINGHAM LEGAL, a California
15 Professional Corporation; PRESTON Judge: Hon. Charles Wachob
MARX, III, an individual; JAMES Date: November 5, 2020
16 CUNNINGHAM, an individual; ASCENT Time: 8:30 a.m.
WEALTH MANAGEMENT, a California Dept.: 42
17 corporation; and DOES 1 through 10,
inclusive, Action Filed: August 6, 2019
18 Trial Date: October 26, 2020
Defendants.
19

20 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
21 Pursuant to California Evidence Code sections 452 and 453 and California Rules
22 of Court, Rule 3.1306, subdivision (c), Defendants Cunningham Legal, Preston Marx, III,
23 James Cunningham, and Ascent Wealth Management hereby request that this Court take
24 judicial notice of the following:
25 1. Plaintiff Donald Machholz, Jr.’s complaint for professional negligence, gross
26 negligence, and financial elder abuse filed August 6, 2019, entitled Donald Machholz, Jr.
27 v. Cunningham Legal, Preston Marx, III, James Cunningham, and Ascent Wealth
28 Management, Placer County Superior Court Case No. SCV0043518. A true and correct
4060509
-1-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’
MOTION TO CONTINUE OR VACATE TRIAL DATE
1 copy of this document is attached hereto as Exhibit 1.

2 2. The Petition to Set Aside Trust Instrument and the exhibits thereto filed by

3 Robert Machholz and Carol Hasenick on June 20, 2018, entitled In re the Matter of: The

4 Machholz Trust, dated February 14, 2017, Placer County Superior Court Case No.

5 SPR0009257. A true and correct copy of this document is attached hereto as Exhibit 2.

6 3. The Court’s correspondence dated January 3, 2020, rejecting Plaintiff’s

7 December 24, 2019, correspondence to the Court, pursuant to Local Rule 20.12, and the

8 enclosures thereto. A true and correct copy is attached hereto as Exhibit 3.

9 DATED: September 24, 2020 HOGE, FENTON, JONES & APPEL, INC.

11
By:
12 Alison P. Buchanan
Ashlee N. Cherry
13 Attorneys for Defendants CUNNINGHAM
LEGAL; PRESTON MARX, III; JAMES
14
CUNNINGHAM; and ASCENT WEALTH
15 MANAGEMENT

28
4060509
-2-
REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANTS’
MOTION TO CONTINUE OR VACATE TRIAL DATE
EXHIBIT
Ognian Gavrilov, SBN 258583
1
GAVRILOV & BROOKS
2 2315 Capitol Avenue
Sacramento, CA 95816 „ FILED
t Telephone: (916)504-0529 nr>or

Facsimile: (916)727-6877
4 Email: ognian@gavrilovlaw.com AUS 06 2019
Jake Chatters
5 Attorneys for Plaintiff Executive Officer & clerk
Jy- O. Lucotuorto. Deputy
DONALD MACHHOLZ, JR.
6

7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF PLACER
9

10 DONALD MACHHOLZ, JR., Case No.:
•CV004351 8
11 Plaintiff, COMPLAINT FOR DAMAGES
12 v.
1. PROFESSIONAL NEGLIGENCE;
13
CUNNINGHAM LEGAL, a California
Professional Corporation; PRESTON 2. GROSS NEGLIGENCE;
14
MARX, III, an individual; JAMES
15 CUNNINGHAM, an individual; ASCENT 3. FINANCIAL ELDER ABUSE (Welf. &

WEALTH MANAGEMENT, a California Inst. Code § 15610.30);
16
corporation; and DOES 1 through 10,
inclusive, Unlimited Civil [Damages Exceed $25,000]
17

18 Defendants. JURY TRIAL DEMANDED

20 Plaintiff, DONALD MACHHOLZ, JR., in his capacity as Successor Trustee of the Machholz
21 Trust, in his capacity as beneficiary of the Machholz Trust, and in his individual capacity, alleges as
22 follows :

23
PARTIES

24 1. In 2017, DONALD MACHHOLZ, SR. (hereinafter "DONALD SR.") created The
25 Machholz Trust dated February 14, 2017 (hereinafter the "2017 Trust"). This Trust was created and
26 entered into in Auburn, Placer County, California.

I
COMPLAINT FOR DAMAGES
1 2. DONALD SR.'S son, DONALD MACHHOLZ, JR. (hereinafter "DONALD JR."), is,
2 and at all times mentioned herein was, the Successor Trustee of the
20 1 7 Trust and a beneficiary of the

3 2017 Trust.

4 3. Upon information and belief, Defendant CUNNINGHAM LEGAL is, and at all times
5 mentioned herein was, a law firm and a California Professional Corporation created pursuant to the
6 laws of the State of California, with its principal place of business
located in Auburn, California.

7 4. Upon information and belief, Defendant PRESTON MARX, III (hereinafter "MARX")

8 is, and at all times mentioned herein was, an individual and an attorney licensed to practice law in
9 California and doing business as an attorney of CUNNINGHAM LEGAL, and an attorney that
10 provided legal services relating to the creation of the 2017 Trust.

11 5. Upon information and belief, Defendant JAMES CUNNINHGAM (hereinafter
12 "CUNNINGHAM") is, and at all times mentioned herein was, an individual and the managing
13 attorney and owner of CUNNINGHAM LEGAL, and an attorney that provided legal services relating
14 to the creation of the 20 1 7 Trust.

15 6. Upon information and belief, Defendant ASCENT WEALTH MANAGEMENT
16 (hereinafter "ASCENT") is, and at all times mentioned herein was, a California corporation created
17 pursuant to the laws of the State of California, doing business with offices located in
Westlake Village,
18 California, and Auburn, Placer County, California, and with its principal place of business located in
19 Auburn, Placer County, California.

20 7. ASCENT is, and at alltimes mentioned herein was, a company that provides financial

21 advice and wealth management services. Upon information and belief, ASCENT is partially owned
22 w CUNNINGHAM, and CUNNINGHAM is on the Board of Directors.

23 8. At all times mentioned herein, MARX and CUNNINGHAM were agents of
24 CUNNINGHAM LEGAL, and in doing the things herein alleged were acting within the scope
of such
25 employment and agency.

26 9. Plaintiff is informed and believes, and thereon alleges, that at all times herein
27 mentioned, Defendants and each of them, were the agents, servants, employees and/or joint ventures
28 of their Co-Defendants and were, as such, acting within the scope, course and authority of said agency

COMPLMNT FOR DAMAGES
1 employment and/or joint venture and that each and every Defendant, as aforesaid, has ratified and
2 approved of the acts of his or her agent.

3 1 0. Plaintiff is ignorant of the names and capacities of
the Defendants sued herein as DOES
4 1 through 10, inclusive, and therefore sue these Defendants by such fictitious names. Plaintiff will
5 amend this action to allege these DOE Defendants' names and capacities when ascertained. Plaintiff
6 is informed and believes, and thereon alleges, that each of the DOE defendants is responsible in some
7 manner for the events and happenings hereinafter referred to, thereby proximately causing injury and
8 damage to the Plaintiff as herein alleged.

9 11. Relief is sought against each and all defendants as well as their agents, assistants,
10 successors, assigns, employees, and persons acting in concert or cooperation with them or at their
11 direction or under their supervision.

12 JURISDICTION AND VENUE
13 12, The injury and damages in dispute, upon which
Plaintiff sues herein, occurred in Placer
14 County, California. Venue and jurisdiction are proper because the amount at issue exceeds the
15 jurisdictional minimum of this court; because Defendants were doing business in the
County of Placer;
16 and because the majority of witnesses and events occurred in the County of Placer. As such,
17 jurisdiction and venue lie in Placer County Super
ior Court.

18 FACTUAL BACKGROUND

19 13. Donald Machholz, Sr. ("Donald Sr.") was married to Doris Machholz for over fifty
20 years. They lived together as husband and wife in Conco
rd, California.
21 14. In 1995, Donald Sr. and Doris created their first estate plan and executed a trust.
22 Pursuant to the terms of the trust, Donald Sr. and Doris nominated each other successors in interest,
23 and provided for a division of assets upon the death of the surviving spouse in equal shares to their
24 three children: Carol Hasenick ("Carol"), Donald Machholz, Jr.("Donald Jr."),and Robert Machholz
25 ("Robert").

26 15. At the time, their three children were all adults and had moved away from Concord.
27 Carol lived in Santa Rosa, California; Donald Jr. lived in Colfax, California; and Robert lived in the
28 Seattle, Washington area.

3
COMPLAINT FOR DAMAGES
1 16. On June 6, 2015, Donald Sr. and Doris amended and re-stated the 1995 trust, entitled
2 "Amendment and Restatement of the Machholz Family Trust of March 4, 1995." Under the terms of
3 the will, in the event that Doris pre-deceased Donald Sr.,the residue of Doris' estate was to be added
4 to, administered, and distributed as part of the 2015 Trust. Following the passing of the surviving
5 settlor, the remainder of the Trust was to be distributed equally
to their three children.

6 17. In July 2016, Donald Sr. was hospitalized due to pneumonia and Doris was hospitalized
7 following a serious automobile accident. Doris was told that she needed about six weeks of
8 rehabilitation, and she and Donald Sr. were in need of additional care. As a result, Donald Jr.,along
9 with his wife, Michele, arranged for his parents to live with them in Colfax so that they could care for
10 them as they recovered.

11 18. Donald Sr. and Doris became in need of additional care while in Colfax, and they
12 decided to stay in Colfax and sell their home in Concord, Californ
ia.

13 19. At around this time, Carol became concerned about the relationship between her
14 parents and Donald Jr. and Michele and the influence of Donald Jr. and Michele had over her parents.

15 This concern reached a point that, in early October 2016, Carol sent a letter to Michele' s attorney, at
16 Cunningham Legal, expressing concern about potential undue influence being exerted by Donald Jr.
17 and Michele over her parents.

18 20. This October 2016 letter put Defendants on notice that there was concern among the
19 siblings and that there was alleged undue influence already being exerted on their parents.

20 21. In late October 2016, Doris passed away at the age of 95 years old.
21 22. Subsequently, Donald Sr. wished to update his testamentary documents. In or about
22 January 2017, Donald Sr. retained the services of Preston Marx, III, an attorney working at the law
23 firm Cunningham Legal,

24 23. Upon information and belief, the managing and lead attorney
at Cunningham Legal was
25 James Cunningham.

26 24. Donald Sr. went to Cunningham Legal with his son Donald Jr. and daughter-in-law
27 Michele Machholz to meet with attorney Preston Marx, III. While there, Donald Sr. stated a desire to
28 disinherit Carol and Robert and to leave his estate to Donald Jr.
and his family.

4
COMPLAINT FOR DAMAGES
1 25. Based upon the discussions, Cunningham Legal drafted estate planning documents for
2 Donald Sr.,entitled "Last Will and Testament of Donald E. Machholz, Sr." and the "The Machholz

3 Trust dated February 14, 2017" (hereafter the "2017 Trust"). Donald Sr. executed both documents at a

4 meeting with Cunningham Legal on or about February 14, 2017.

5 26. Pursuant to the terms of the Will, Donald Sr. directed transfer of his entire probate

6 estate, excluding any property over which he had a power of appointment, after payment of expenses

7 and taxes, to the then-acting Trustee of the 2017 Trust. Further, the 2017 Trust names Donald Jr.as
8 the sole primary beneficiary of the entirety of Donald Sr.'s 201 7 Trust estate, at the exclusion of Carol

9 and Robert.

10 27. Upon information and belief, prior to and during the period that Defendants drafted the

11 2017 Trust, Defendants were aware that the 2017 Trust would overturn and make drastic changes to a
12 long-held estate plan of Donald Sr., would take the place of the prior estate plans executed in 1995 and
13 2015, and would effectively disinherit Carol and Robert while making Donald Jr. the sole beneficiary.

14 In other words, itwas foreseeable that Carol and Robert may challenge the validity of the 2017 Trust,

15 that safeguards would need to be in place to disincentivize any legal actions challenging the validity of

16 the 2017 Trust, and that safeguards would need to be in place to protect the stated intent of Donald
Sr.
17 28. Further, Defendants had knowledge, from October 2016, that Carol already alleged that

18 Donald Jr.and Michele may be exerting undue influence over Donald Sr. relating to his estate plan,
19 which would have caused a reasonable attorney to make sure that specific procedural steps were
20 Followed and safeguards in place to determine and ensure that no undue influence was exerted over
21 Donald Sr. relating to the estate plan.

22 29. Upon information and belief, and despite being aware of important and sensitive
23 aspects of the 2017 Trust that required particular attention by Defendants to ensure that the stated
24 desire of their client was met, Defendants failed to properly investigate and analyze Donald Sr.'s
25 stated intent, failed to properly document and establish safeguards to protect Donald Sr.'s stated
26 intent, failed to obtain a certificate of independent review in connection with Donald Sr.'s new estate
27 dan in light of the surrounding circumstances, failed to reach out to or
get involvement from Robert or

28 Carol relating to the process of creating the new estate plan, and failed to inform Robert or Carol of

COMPLAINT FOR DAMAGES
<£ 'W. - & mmm

1 the new estate plan being created. This conduct fell below the standard of care, and a reasonable
2 attorney would have taken these steps to protect the estate planning documents being created and
3 executed by the client.

4 30. In creating the Trust, Defendants encouraged Donald Sr. to establish a new 2017 Trust,

5 rather than simply amending and restating the existing trust from 2015. Similarly, Defendants
6 inexplicably did not have Donald Sr. simply appoint Trust assets to Donald Jr. through the exercise of
7 his general power of appointment. These actions could have also disincentivized any subsequent legal

8 actions relating to the 2017 Trust, and a reasonable attorney would have at least discussed these

9 options with Donald Sr., which, upon information and belief, did not
occur here.

10 31. In excluding Robert and Carol as beneficiaries under the new Trust, itwas all but
11 certain that they would contest the new instrument, yet Defendants failed to advise Donald Sr. of the
12 mechanisms available to mitigate the high probability of a legal contest by Robert and Carol. For

13 example, Defendants failed to advise as to providing a sufficient incentive to not contest Donald Sr.'s
14 estate plan, such as leaving Robert and Carol at least a portion of his estate so that
they would not want

15 to trigger the no-contest clause.

16 32. At the time that Defendants provided legal services to Donald Sr.,he was 94 years old.

17 During this legal representation, Defendant Marx and/or Cunningham directed and advised Donald Sr.
18 to liquidate and/or move all his assets, including but not limited to his income in various financial
19 accounts held in Trust, into financial accounts at Ascent.

20 33. Upon information and belief, Ascent Wealth Management is at least partially
owned by
21 James Cunningham, the founder and managing partner of Cunningham
Legal.

22 34. Based upon the direction and advice of Defendants, and upon reliance
on their direction
23 as his attorneys and as financial advisors, Donald Sr. liquidated and moved all his assets to accounts at

24 Ascent. This caused Donald Sr. to incur early withdrawal penalties and, upon information and belief,

25 incur higher management and brokerage fees.

26 35. Robert and Carol remained uninformed of the 2017 Trust and new Will executed by
27 Donald Sr. in February 2017 in which they had been excluded as beneficiaries.

28 36. On January 28, 2018, Donald Sr. passed away.

6
COMPLAINT FOR DAMAGES
* IIW.

J 37. On June 20, 2018, as a result of Defendants' failures to take reasonable safeguards
2 against a legal action regarding the 2017 Trust, and Defendants' failure to meet the standard of care as

3 alleged herein, Robert and Carol filed a Petition to Set Aside Trust in which they alleged that the 2017

4 Trust should be found invalid due to alleged undue influence. Consequently, this caused Donald Jr. to

5 incur legal fees and costs in an amount exceeding $100,000, and in an amount
according to proof.

6 38. Defendants continued to provide legal representation to Donald Jr.,in his capacity as
7 Successor Trustee of the 2017 Trust, and relating to the 2017 Trust, through approximately August 7,
8 2018.

9 39. Robert, Carol, and Donald Jr. eventually entered into a settlement agreement after
10 expending approximately $100,000 in legal fees and costs to litigate the dispute over the disposition
of
11 Donald Sr.'s estate, in which Donald Jr. was forced to give up assets valued at approximately

12 $450,000 as settlement to Robert and Carol due to deficiencies by Defendants in drafting the 2017
13 Trust.

14 40. The failure of Defendants to follow basic procedural and legal rules regarding the
15 creation of the 2017 Trust left Donald Jr. open to the high likelihood of a probate challenge by the
16 disinherited Robert and Carol, and he was forced to expend money on legal costs and fees that would

17 not have been necessary had Donald Sr.'s estate plan not been negligen
tly prepared.

18 41. Further, the improper advice and direction from Defendants to have Donald Sr.
19 liquidate his assets and deposit them into accounts managed by Ascent constituted a gross breach of
20 the fiduciary duty of an attorney to a client, and also resulted in monetary damages from early

21 withdrawal penalties and higher broker fees. This caused the estate to be worth less at the time of
22 disposition than it otherwise would have.

23
FIRST CAUSE OF ACTION
24
Professional Negligence
25 (Against Defendants Cunningham Legal, Marx, Cunningham, and Does 1-10)

26 42. Plaintiff re-alleges and incorporates herein paragraphs 1 through 41 as though fully set

27 forth herein and with the same force and effect.

7
COMPLMNT FOR DAMAGES
1 43. Defendants, and each of them, had, had a duty to use such skill, prudence aud diligence

2 as members of the legal profession commonly possess and exercise, in providing legal services to
3 Donald Sr. herein, and owed a duty to Donald Jr. as Successor Trustee of the 2017 Trust and an
4 intended beneficiary of the 2017 Trust. In addition, Defendants continued to provide legal

5 representation to Donald Jr. in relation to the 20 1 7 Trust following the death of Donald Sr.

6 44. During Defendants' representation of Donald Sr. and Plaintiff, there were several
7 instances wherein the conduct of Defendants fell below the applicable standard of care, as set forth
8 herein. Defendants, and each of them, failed to exercise reasonable care and skill in their
9 representation of Donald Sr. and Plaintiff by negligently and carelessly doing all the actions and
10 omissions as herein alleged, including but not limited to:

11 a) Defendants failed to obtain a certificate of independent review in connection with
12 Donald Sr.'s new estate plan, despite the likelihood of a challenge to the new
13 instrument due to the exclusion of two of the three beneficiaries;

14 b) Defendants failed to consider the potential lack of capacity and potential undue
15 influence, despite being on notice of potential issues before the meetings with Donald
16 Sr. and Donald Jr., and failed to counsel regarding review by 3rd party counsel;

17 c) The failure to advise Donald Sr. of mechanisms available to mitigate the high
18 probability of a contest by Robert and Carol;

19 d) The failure to advise Donald Sr. of alternative methods of meeting his stated intent,

20 rather than creating an entirely new trust;

21 e) A breach of the duty of loyalty owed by an attorney to their client by advising for and
22 causing the liquidation and transfer of Donald Sr.'s assets into Ascent Wealth
23 Management.

24 45. Here, the preparation of a new estate plan for Donald Sr. by Cunningham Legal that
25 was intended to benefit Donald Jr. as the sole intended beneficiary of Donald Sr.'s estate made it
26 foreseeable and likely that Robert and Carol would challenge Donald
Sr's 2017 estate plan.

8
COMPLAINT FOR DAMAGES
-

1 46. The conduct of Defendants, and each of them, in doing the acts and omissions herein
2 directly resulted in damages and harm to Plaintiff, as successor trustee and intended beneficiary of the

3 2017 Trust, as shown according to proof at trial.

4 47. In doing the things alleged herein, Defendants intentionally put their own financial
5 interests and the gain ahead of the interest of their client. As a direct and proximate result of
6 Defendants' actions, as alleged herein, Plaintiff has incurred substantial unnecessary fees
and costs, in

7 excess of $ 1 00,000 in attorney fees and costs, all in an amount accordin
g to proof at trial.
8 48. Additionally, Defendants' wrongful conduct caused Plaintiff to give up assets valued at
9 approximately $450,000 to settle the Trust contest with Robert and Carol. This money also likely
10 would not have been lost by Donald Jr. had the Will and Trust
been not been negligently created.

11 49. Had Defendants exercised the skill,prudence, and diligence commonly possessed by
12 other legal professionals in the field, Plaintiff would not have been required to engage in litigation
13 regarding the validity of Donald Sr.'s 2017 estate plan. Defendants failure to exercise the skill,
14 prudence, and diligence commonly possessed and exercised by other professionals in the field caused

15 Plaintiff to suffer damages likely over $600,000, as discussed herein above, the actual amount to be
16 proven at trial.

17
SECOND CAUSE OF ACTION
18
Gross Negligence
19 (Against Defendants Cunningham Legal, Marx, Cunningham,
and Does 1-10)

20 50. Plaintiff re-alleges and incorporates herein paragraphs 1 through 49 as though fully set
21 forth herein and with the same force and effect.

22 51. In addition to Defendants' conduct falling below the standard of care, as described

23 herein, because Defendants were previously on notice that there were suspected issues with undue
24 influence and capacity prior to meeting with Donald Sr., and because Defendants willfully failed to
25 take necessary procedural steps to protect the interests of Donald Sr., Defendants' conduct amounted

26 to gross negligence and Defendants acted with the lack of any care and/or an extreme departure from

27 the standard of care.

9
COMPLAINT FOR DAMAGES
1 52. The conduct of Defendants, and each of them, in doing the acts and omissions herein

2 directly resulted in damages and harm to Plaintiff, as successor trustee and intended beneficiary of the

3 201 7 Trust, as shown according to proof at trial.

4 53. In doing the things alleged herein, Defendants intentionally put their own financial

5 interests and the gain ahead of the interest of their client. As a direct and proximate result of
6 Defendants' actions, as alleged herein, Plaintiff has incurred substantial unnecessary fees and costs, in
7 excess of $100,000 in attorney fees and costs, all in an amount according
to proof at trial.
8 54. Additionally, Defendants' wrongful conduct caused Plaintiff to give up assets valued at

9 approximately $450,000 to settle the Trust contest with Robert and Carol. This money also likely
10 would not have been lost by Donald Jr. had the Will and Trust been
not been negligently created.

11 55. Defendants acted with willful and conscious disregard of Donald Sr.'s and Donald Jr.'s
12 rights. Defendants acted with malice, oppression, or fraud, thereby entitling Plaintiff, as Donald Sr.'s

13 successor in interest, to recover exemplary damages.

14
THIRD CAUSE OF ACTION
15 Financial Elder Abuse - Welf. & Inst. Code § 15610.30
(Against all Defendants)
16

17 56. Plaintiff re-alleges and incorporates herein paragraphs 1 through 55 as though fully set

18 forth herein and with the same force and effect.

19 57. At the time Donald Sr. consulted with Defendants, he was 94 years of age.

20 58. Defendants advised Donald Sr. to liquidate and/or transfer assets to Ascent Wealth
21 Management, a business that is at least partially owned by the owner and managing partner of
22 Cunningham Legal, the law firm that negligently drafted the new Trust
and Will.

23 59. Defendants, in taking, appropriating, obtaining, or retaining Donald Sr.'s money, did so
24 for their own personal gain, rather than for the puipose of fully, completely, and competently

25 rendering the services they promised to provide. Accordingly, Defendants did take, appropriate,
26 obtain, or retain Donald Sr.'s money for a wrongful use in violation of Welfare and Institutions Code
27 section 15610.30.

10
COMPLAINT FOR DAMAGES
1 60. Defendants, in taking, appropriating, obtaining, or retaining Donald Sr.'s money, and

2 knowing that Donald Sr. was elderly and given his circumstances, undertook the wrongful taking of

3 Donald Sr.'s property and/or did use undue influence in their position as attorneys and/or financial

4 advisers to take, appropriate, obtain, or retain said money.

5 61. Donald Sr. was harmed by Defendants' taking, obtaining, or appropriating said money.

6 Defendants, in taking said money, did willfully and/or recklessly contradict Donald Sr.'s previously

7 established wishes and intent from his long existing estate plan without ensuring proper safeguards

8 were in place against challenges to the Will and Trust. Defendants' reckless and/or willful conduct

9 pitted the Machholz family members against one another and did publicly humiliate both his family

10 and his legacy.

11 62. Further, Defendants' wrongful conduct caused Donald Sr. to incur penalties and

12 additional fees and costs due to liquidating his assets and transferring them to accounts in Ascent.

13 63. Defendants conduct was a substantial factor in causing harm to Donald Sr. and
14 Plaintiff, as Successor Trustee of the Machholz Trust, in his capacity as beneficiary of the Machholz

15 Trust.

16 64. Plaintiff, as Successor Trustee of the Machholz Trust, in his capacity as beneficiary of

17 the Machholz Trust, is entitled to recover attorney fees and costs based upon the financial elder abuse

18 committed by Defendants.

19 65. Defendants acted with willful and conscious disregard of Donald Sr.'s and Donald Jr.'s

20 rights. Defendants acted with malice, oppression, or fraud, thereby entitling Plaintiff, as Donald Sr.'s

21 successor in interest, to recover exemplary damages.

22 66. Defendants acted with willful and conscious disregard of Donald Sr.'s and Donald Jr.'s

23 rights. Defendants acted with malice, oppression, or fraud, thereby entitling Plaintiff, as Donald Sr.'s
24 successor in interest, to recover treble damages.

25 PRAYER FOR RELIEF

26 WHEREFORE, Plaintiff prays for judgment as follows:

27 1. For general and special damages in an amount according to proof at the time of trial;

28 2. For prejudgment interest pursuant to statute;

11
COMPLAINT FOR DAMAGES
-emu

1 3. For exemplary damages;

2 4. For treble damages;

3 5. For attorney fees and costs of suit herein; and

4 6. For such other and further relief as the Court deems just and proper.

6 Dated: August 6, 2019 GAVRILOV & J&RO0KS

8 By:
Ognian Gavrilov
9 Attorneys for Plaintiff
DONALD MACHHOLZ, JR.
10

COMPLAINT FOR DAMAGES
EXHIBIT 2
FILED
lupertor Cour t of California
1 DANIEL I. SPECTOR County of Placer
State Bar Number 160498 ,• •
, ~'\
iS

2 OLENA LIKHACHOVA JUN 20 2018
State Bar Number 285574
3 LAW OFFICE OF DANIEL I. SPECTOR Jake Chatters
Executive Officer & Clerk
9700 Business Parle Drive, Suite 301 By: 0. Lucatuorto, Deputy
4· Sacramento, California 95827

Case Info

Case No.

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Document Filed Date

September 24, 2020

Case Filing Date

August 06, 2019

County

Parties

Ascent Wealth Management Defendant
Cunningham Legal Defendant
Donald Machholz Plaintiff
Gavrilov, Ognian A. Gavrilov Law Corporation Attorney
James Cunningham Defendant
Preston Marx Defendant
Stuart, Scott Friedlander Hoge Fenton Jones & Appel Attorney for the Defendant
Alison Buchanan Attorneys for Defendants
Ashlee Cherry Attorneys for Defendants
Daniel Spector Attorneys for Plaintiffs
Olena Likhachova Attorneys for Plaintiffs
Eliezer Cohen Attorneys for Plaintiffs

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Request,Application: Machholz, Donald Jr vs. Cunningham Legal

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