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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
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) DIRECTED VERDICT
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Dianne Joaquin, Executrix
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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
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essentially after much litigation she turned over the 93 shares of Lehman Brothers Holdings, Inc.
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stock and a copy of the Wells Fargo and Company share certificates, her position being that stock
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no longer exists and therefore there is no “tangible personal property” and there is no basis for
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finding she wrongfully “concealed” property belonging to the estate. She therefore asserts an
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attorney’s fee award under Probate Code § 839 should not be awarded. She also makes the
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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.
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Opposition to Motion for Directed Verdict Pg.1
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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
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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
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things in action and evidences of debt, as does Evidence Code § 180. Civil Code § 663 declares
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that “every kind of property that is not real is personal”.
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A security under Corporations Code § 25019 includes stock and other corporate financial
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instruments.
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The respondent argues that the one physical certificate that Amparo had was the stock in
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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
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that the certificate was turned over three months later on October 12,2, 2!2! 020. The response to
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production demand was one month earlier on September 9, 2020, which provided copies. Exhibit
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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
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attorney’s fees and costs of the estate of Patrick Flynn in this action. There is no evidence as to the
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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.
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On April 20, 2020, Amparo in response to a letter | sent her responded by email that “I
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have all of Patrick’s stocks which he gave me...” Exhibit A. On the same date I asked Amparo to
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turn them over. Exhibit B. When I learned she was represented by Rachel King, I asked her for the
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stock turnover, (Exhibit C) Rachel King was the second attorney representing Amparo in Patrick’s
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probate matter. No one told Dianne Joaquin, the executrix, (Dianne herein) or me that there in fact
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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
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again asked Ms. King for the stock and reminded her that under Family Code § 852 and the Estate
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of McDonald Supreme Court Case there has to be a written transmutation agreement before there
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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
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accord with the Code on time and only on September 9, 2020 in a response from Mr. Griffith was
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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.
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At trial, Amparo provided a document, undated, unsigned, which purported to evidence a
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gift of stock by Patrick to Amparo. It does not refer to stock, only flowers and does not gift her
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anything. Without Patrick able to testify, its probative value is nil. She did acknowledge that
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Patrick, after returning to their home in San Diego was prevented by court order from remaining
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and was stripped of the vehicle he was driving. He returned to Stockton by train with one duffle
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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
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Patrick Flynn for the attorney’s fees incurred by Dianne to retrieve the stock provided, in the
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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.
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122 Respectfully Submitted,
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14 John C. Schaller
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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=
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Amparo Perez-Flynn
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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
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14 ms For DIANNE JOAQUIN: JOHN C. SCHALLER
Attorney at Law
15 1458 Esplanade
Chico, CA 95926
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17 For AMPARO PEREZ-FLYNN GRIFFITH, HORN & SHEEHAN
Attorney at Law
18 1530 Humboldt Road, #3
Chico, CA 95928
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20 COMPUTER ASSISTED TRANSCRIPTION
BY
21 DUENSING DEPOSITION REPORTERS
2840 Cohasset Road
22 Chico, cA
(530 (345-2488
23
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25 |BARRY J. DUENSING LICENSE NO. 3596
www. duensingdepositionreporters.com
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