arrow left
arrow right
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
  • Estate of  Flynn, Patrick MDecedent's Estate document preview
						
                                

Preview

John C. Schaller, SB #39375 F Superior Court of California F Law Office of John C. Schaller 1458 The Esplanade County of Butte | Chico, California 95926 12/17/2020 L Tel: (530) 893-8891 Fax: (530) 893-0124 D lerk D Attorney for Dianne Joaquin, Executrix By Deputy Electronically FILED SUPERIOR COURT OF CALIFORNIA COUNTY OF BUTTE ESTATE OF ) Case No.: 20PR00003 PATRICK M. FLYNN, aka PATRICK ) FLYNN ) OPPOSITION TO MOTION FOR 10 ) DIRECTED VERDICT 1 Dianne Joaquin, Executrix 122 a 13 — — 14 1s After the presentation of all evidence in a court trial in the above referenced matter, 16 Amparo Perez-Flynn (Amparo herein), filed a motion for a “directed verdict”, asserting that 17 essentially after much litigation she turned over the 93 shares of Lehman Brothers Holdings, Inc. 18 stock and a copy of the Wells Fargo and Company share certificates, her position being that stock 19 no longer exists and therefore there is no “tangible personal property” and there is no basis for 20 finding she wrongfully “concealed” property belonging to the estate. She therefore asserts an 221 attorney’s fee award under Probate Code § 839 should not be awarded. She also makes the 22 23 argument that the stock she had of Patrick Flynn’s (Patrick herein) was worthless, therefore she 24 had no stock of Patrick. 25 Petitioner takes the position that the motion is improper since there has been no jury trial, 26 and I will therefore consider the motion filed as Amparo’s closing argument. 27 iH 28 Opposition to Motion for Directed Verdict Pg.1 I I A MOTION FOR A DIRECTED VERDICT Is IMPROPER SINCE THERE IS NO JURY TRIAL CCP § 630 authorizes a directed verdict only in jury trials. It states “unless the court specifies an earlier time for making a motion for directed verdict, after all parties have completed the presentation of all of their evidence in a trial by jury, any party may, without waiving his other right to a trial by jury in the event the motion is not granted, for an order directing entry of a verdict in its favor.” See 7 Witkin Procedure 497, which is in accord. Since there was no jury trial, there is no motion for directed verdict Il. 10 STOCK CERTIFICATES AND RIGHTS TO STOCK IS “PERSONAL PROPERTY” UNDER PROBATE CODE § 850 I 12 The moving party conceded that “personal property, title to or possession of which is held 13 by another” is covered under Probate Code § 850. He cites a Commercial Code § 481.225 but such| 14 a section appears not to exist. 15 There are various definitions of personal property in the codes. CCP § 17(b)(3) includes 16 things in action and evidences of debt, as does Evidence Code § 180. Civil Code § 663 declares 17 that “every kind of property that is not real is personal”. 18 A security under Corporations Code § 25019 includes stock and other corporate financial 19 instruments. 20 The respondent argues that the one physical certificate that Amparo had was the stock in 221 22 the Lehman Brothers Holdings, Inc. and without any evidence presented, asserts that since it has 23 no value, there is no personal property which Amparo possessed and she turned over the original 24 stock certificate on July 6, 2020. That date is incorrect. Exhibit N admitted into evidence shows 25 that the certificate was turned over three months later on October 12,2, 2!2! 020. The response to 26 production demand was one month earlier on September 9, 2020, which provided copies. Exhibit 27 H 28 Opposition to Motion for Directed Verdict Pg. 2 It was only on December 10, 2020, when any other claimed security documentation provided by counsel for Amparo was turned over to me. The documents were not admitted into evidence and not taken judicial notice of. Il. THERE IS EVIDENCE OF BAD FAITH CONCEALING OF PROPERTY ENTITLING PETITIONER TO ATTORNEY FEES Probate code § 859 provides that a person who has in bad faith wrongfully taken, concealed or disposed of property belonging to an estate is liable for double damages. In addition, the court in its discretion may make the person liable for reasonable attorney fees and costs. This is just the type of situation where the court should order Amparo to pay for the 10 attorney’s fees and costs of the estate of Patrick Flynn in this action. There is no evidence as to the 1 122 value of the stock currently turned over, nor based on the information contained in the recent 13 documents provided. However, the bad faith of Amparo and the hoops the estate had to jump 14 through to get the one certificate and the information on others after eight months should not be 15 rewarded. 16 On April 20, 2020, Amparo in response to a letter | sent her responded by email that “I 17 have all of Patrick’s stocks which he gave me...” Exhibit A. On the same date I asked Amparo to 18 turn them over. Exhibit B. When I learned she was represented by Rachel King, I asked her for the 19 stock turnover, (Exhibit C) Rachel King was the second attorney representing Amparo in Patrick’s 20 probate matter. No one told Dianne Joaquin, the executrix, (Dianne herein) or me that there in fact 21 22 was no stock in Amparo’s possession of any value as she now claims. No response was made and 23 no stock was sent so this court petition was filed on June 10, 2020, Exhibit D, for their turnover. 24 Ms. King responded on June 29, 2020. claiming a gift of stock to Amparo into “community 25 property” and stating she had filed a community property petition. She had not. On July 8, 2020, I 26 again asked Ms. King for the stock and reminded her that under Family Code § 852 and the Estate 27 of McDonald Supreme Court Case there has to be a written transmutation agreement before there 28 Opposition to Motion for Directed Verdict Pg. 3 is a completed gift. Exhibit F. Shortly thereafter, Ms. King resigned as Amparo’s attorney and was relieved as her attorney in this case. Mr. Richmond while not appearing as attorney of record in this matter, began representing Amparo. I again on July 27, 2020, asked for turnover of the stock. Exhibit G. Ms. King had filed a separate action on behalf of Amparo against Dianne Joaquin as Trustee and individually in San Joaquin County where the Patrick Flynn Trust was being administered. There was no stock provided by Amparo’s other attorneys. Meanwhile, on July 6, 2020, I was obligated on behalf of my client to send and I sent out productions demands, interrogatories and Requests for Admissions to Amparo’s then attorney, Rachel King. I reminded Amparo of the due discovery, Exhibit O. Neither she, nor Ms. King responded to the discovery in 10 accord with the Code on time and only on September 9, 2020 in a response from Mr. Griffith was Il 122: there any response at all. Exhibits H, I, and J. After denying and obfuscating in her responses, she 133 did likewise when she was served with Form Interrogatories to explain her denials. Again, the 14 responses were untruthful. She had been served the Will in the probate matter and a copy of the 15 Trust and amendments in the trust matter. 16 At trial, Amparo provided a document, undated, unsigned, which purported to evidence a 17 gift of stock by Patrick to Amparo. It does not refer to stock, only flowers and does not gift her 18 anything. Without Patrick able to testify, its probative value is nil. She did acknowledge that 19 Patrick, after returning to their home in San Diego was prevented by court order from remaining 20 and was stripped of the vehicle he was driving. He returned to Stockton by train with one duffle 221 79, bag of clothes. He was unable to get his papers, including the stock records. Amparo, nor her 23 attorney, ever acknowledged that she had only the Lehman Brothers stock certificate and no others) 24 or that the stock had little value. 25 Amparo should therefore be ordered to pay to Dianne Joaquin as executrix of the estate of 26 Patrick Flynn for the attorney’s fees incurred by Dianne to retrieve the stock provided, in the 27 28 Opposition to Motion for Directed Verdict Pg.4 amounts of $9,296.75 through November 16, 2020 (Exhibit M). The additional time and costs are attached hereto as is a copy of the first day of trials transcript. CONCLUSSION There can be no order for a directed verdict as there is no jury trial. There should be an order that Amparo turn over any stock in her possession since the stock is “personal property” of Patrick. Her testimony regarding that the only stock certificate she has is the Lehman Brothers Holdings, Inc. is all that she ever had and that this was all that Patrick Flynn gave her should not be accepted, and she should pay to the Flynn Estate the full amount of attorney’s fees and costs incurred by the estate in the amount of $12,547.95. 10 I 122 Respectfully Submitted, 13 14 John C. Schaller 15 16 17 18 19 20 2.21 22 23 24 25 26 27 28 Opposition to Motion for Directed Verdict Pg. 5 PROOF OF SERVICE (CCP 1010, et seq.) Revised 6/2/16) STATE OF CALIFORNIA, COUNTY OF BUTTE I am employed in the County of Butte, State of California. ] am over the age of 18 and nota party to the within action; my business address is: 1458 Esplanade, Chico, California 95926. On December 17, 2020, I served the foregoing documents described as: 1 OPPOSITION TO MOTION FOR DIRECTED VERDICT on the interested party(ies) in this action by placing a true copy thereof enclosed in sealed envelopes and/or packages addressed as follows: David R. Griffith Griffith, Horn & Sheehan LLP 1530 Humboldt Rd. Ste. 3 Chico, CA 95928 X BY MAIL: Iam readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would deposited with U.S. Postal Service on that same day with postage thereon fully prepaid at Butte County, California in the ordinary course of business. Iam aware that on motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than | day after date of deposit for mailing in affidavit. BY FACSIMILE: I served said document(s) to be transmitted via facsimile pursuant to Rule 2008 of the California Rules of Court. The telephone number of the sending facsimile machine was (530) 893- 0124. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. A transmission report was properly issued by the sending facsimile machine, and the transmission was reported as complete and without error. BY ELECTRONIC SERVICE: I served said document(s) by e-mailing a true copy of each document thereof in a portable document format (PDF) to each of the party/parties listed above. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 17, 2020, at Chico, California. (W101 a Mossman c.c. Client, via email Proof of Service ~ Page | Law Office of John C. Schaller 1458 The Esplanade Chico, CA 95926 December 16, 2020 Dianne Joaquin 334 San Fernando Ave Stockton, CA 95210 In Referece To: Patrick Flynn Estate Stock Recovery Professional Services Hrs/Rate Amount 12/9/2020 - Prepare for trial. 1.00 350.00 350,00/hr 12/10/2020 - Phone call to Duensing Deposition Reporters re 0.40 140.00 reporting and trial appearance. 350.00/hr 12/11/2020 - Prepare for trial. Attend court trial. 1.50 525.00 350.00/hr 12/14/2020 - Research on Motion for Directed Verdict for Griffith. 4.00 1,400.00 Draft Opposition to Motion. 350.00/hr 1.00 350.00 12/16/2020 Review and Revise Opposition to Motion. 350.00/hr For professional services rendered : 7.90 $2,765.00 Dianne Joaquin Page 2 Additional Charges Qty/Pric Amount 12/8/2020 - Cost Advance - Check #11594 - Duensing Deposition 300.00 Reporters 300.00 12/14/2020 - Cost Advance - Check #11606 - Duensing Deposition 186.00 Reporters (Trial transcript, Day 1) 186.00 Total costs $486.00 Balance due $3,251.00 DUENSING DEPOSITION REPORTERS 1 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 2 IN AND FOR THE COUNTY OF BUTTE _ 3 ESTATE OF PATRICK M. FLYNN, aka PATRICK 4 FLYNN, 5—Dianne Joaquin, Executrix, vs. NO. 20PRO0003 l= 7 Amparo Perez-Flynn i 8 os / CERTIFIED COPY 9 Before the Honorable TAMARA L. MOSBARGER 10 Chico, Butte County, State of California 11. 2:29 p.m., Monday, November 30, 2020 i Barry J. Duensing, CSR# 3596 13 14 ms For DIANNE JOAQUIN: JOHN C. SCHALLER Attorney at Law 15 1458 Esplanade Chico, CA 95926 16 17 For AMPARO PEREZ-FLYNN GRIFFITH, HORN & SHEEHAN Attorney at Law 18 1530 Humboldt Road, #3 Chico, CA 95928 19 20 COMPUTER ASSISTED TRANSCRIPTION BY 21 DUENSING DEPOSITION REPORTERS 2840 Cohasset Road 22 Chico, cA (530 (345-2488 23 24 25 |BARRY J. DUENSING LICENSE NO. 3596 www. duensingdepositionreporters.com i