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Super' Gum bf Gamma
Erwin Williams (206908)
MCKERNAN, LANAM, BAKKE & WILLIAMS LLP County (If Butts
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55 Independence Circle, Suite 106
L 1/6/2021 L
Chico, California 95973
Tel. (530) 877—4961
Fax (530) 877-8163
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Guardian Ad Litem for Edward F. Niderost By ”EH-!
FILED
SUPERIOR COURT 0F CALIFORNIA
COUNTY OF BUTTE
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12 WAYNE A. COOK, TRUSTEE OF THE Case NO. 20CV00905
WAYNE A. COOK 1998 FAMILY TRUST
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DATED 12/29/98, REPLY IN SUPPORT OF MOTION FOR
14 PROTECTIVE ORDER THAT THE
Plaintiff, DEPOSITION OF EDWARD F. NIDEROST
15 NOT BE TAKEN AND MEMORNDA
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Accompanying Documents:
l7 EDWARD F. NIDEROST, ct a1.,
Further Declaration of Erwin Williams, Guardian
18 Defendants. Ad Litem, and Declaration of John Denton,
Conservator.
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Date: January l3, 2021
21 Time: 9:00 am.
22 Dept: 1
AND RELATED CROSS COMPLAINTS. Judge: The Honorable Tamara L. Mosbarger
23 Date Action Filed: April 22, 2020
Trial Date: March 29, 2021
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25 I. Capacities of the Conservatee
26 1. The capacities of a conservatee to marry, vote or create a will are not at issue in this case. Further,
27 the requisite capacities to marry, create a will or contract are separate and distinct.
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Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Case NO. 20CV00905
2. “Mental capacity can be measured on a sliding scale, with marital capacity, followed by
testamentary capacity, and on the high end is the capacity to enter contracts”. (See, Commentary
i
to PC] §l900 citing In re Marriage ofGreenway, (2013) 2] 7 Cal.App4th 628.)
3. The capacity to create a will is governed by PC §§6100 and 6100.5 providing, in relevant part, the
testator must have sufcient mental capacity to understand the nature of the testamentary act, the
nature and situation of his property, remember and understand his/her relations to descendants,
family and those affected by the will.
4. The capacity to create a will is lower than the requisite capacity to contract; incur debts; or sell
transfer, convey, or encumber property those being the very transactions at issue in this case and
10 as adjudicated in re: the Conservatorship of Mr. Niderost, Butte County Superior Court Case
11 Number 20PR00122. ,
12 ll. Application of PC $811 to Conservatorship Proceedings
l3 5. The Opposition states the Motion fails to correlate the mental decits at PC §811 with the
l4 appointment of a probate conservator of the estate pursuant to PC §1801.
l5 6. The relationship by and between the relevant code sections is stated at section E on page 4 of the
l6 Motion.
l7 7. In summary, PC §810 establishes the rebuttable presumption of capacity.
l8 8. To overcome the presumption and obtain an order establishing a conservatorship, the petitioner
l9 must prove by clear and convincing evidence that the proposed conservatee cannot manage his
20 nancial resources or resist fraud or undue inuence. “The petitioner meets the burden of proof
21 by applying the analytical structure of PC §811 to the facts of the proposed conservatee’s life.”
22 (See, CEB California Conservatorship Practice, May 2020 Update, §l.9 at page 1—14).
23 HI. Judicial Determination of Capacity
24 9. Mr. Niderost was conserved by court order meaning the petitioner in that matter proved, by clear
25 and convincing evidence, that Mr. Niderost has signicant mental decits sufcient for the court
26 to enter its order.
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PC means California Probate Code.
Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Page 2 Case No. 20CV00905
10. In applying the standards established by CA Evidence Code §702, the court determines a proposed
Witness’ and/or deponent’s capacity.
11. The distinction between the cases cited by the Opposition regarding capacity to testify and this
matter is the appointment of a probate conservator. In none of the cases cited by the Opposition
had the proposed Witness been previously conserved.
12. Here, Mr. Niderost has been conserved, and the burden of proof necessary for the appointment of
a conservator appear to exceed the standard established by CA Evidence Code §702 and supporting
cases.
13. Further, in appointing a temporary conservator, the court specically granted Mr. Denton the
10 authority to engage in litigation on behalf of Mr. Niderost, to unwind “any real estate transactions
ll occurring in the last 60 days.” (See, Further Declaration of Erwin Williams with corresponding
12 exhibits). The court clearly determined Mr. Niderost lacked the requisite capacity to adequately
l3 commence and/or defend himself in litigation.
14 IV. Declaration of R. Eugene Cully
15 14. Mr. Cully is a party in this action.
16 15. The Opposition fails to provide any supporting evidence that Mr. Cully is qualied to make a
17 medical or legal opinion regarding Mr. Niderost’s mental functions, capacities or his ability to
18 competently testify in this matter.
19 V. Deposition of John Denton
20 16. Mr. Denton’s deposition was taken December 29, 2020, not November 29, 2020, as stated in Mr.
21 Sandelman’s Declaration supporting the Opposition, and subsequent to the ling of the Motion.
22 17. The Opposition alleges that since Mr. Denton had conversations with Mr. Niderost, he must be
23 competent to testify. (See, Opposition, commencing at line l7 of page 9, and Mr. Sandelman’s
24 Further Declaration at section 6 commencing at line ll of page 18). Mere conversations with an
25 incapacitated person do not equate to capacity to testify.
26 18. Mr. Denton, in his Declaration in Support of the Motion led concurrently with this Reply, states
27 his conversations with Mr. Niderost are general in nature, and by no means establish Mr. Niderost’s
28 competency to testify.
Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Page 3 Case No. 20CV00905
VI. Request for Sanction
19. The court shall not impose sanctions if the party acted with substantial justication or other
circumstances make the imposition of the sanction unjust. (California Code of Civil Procedure
§2025.420(h)).
20. The ndings regarding a conservatee’s mental faculties and corresponding decits necessary for
the appointment of a probate conservator, and the subsequent order for such appointment, are
directly related to the Motion, that is, Mr. Niderost’s capacity to testify.
21. The effect of the conservatorship is a legitimate legal issue for which there appears to be little
guidance directly on point.
lO 22. The conservatorship of Mr. Niderost establishes sufcient justication for the Motion. Sanctions
ll should be denied. t u
12 Dated: January 6,2021 f‘WW,WW:VM*%WCK
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Erwin Williams
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Guardian AdjLitem for Edward Niderost
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l4 Defendant
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Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Page 4 Case No. 20CV00905
PROOF OF SERVICE
I am a citizen of the United States and employed in Butte County, California. I am over the age
of eighteen ( 1 8) years and not a party to the Within action. My business address is 55 Independence Circle,
Suite 106, Chico, California 95973. On January 6, 2021, I served the following:
REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER
THAT THE DEPOSITION OF EDWARD F. NIDEROST
NOT BE TAKEN AND MEMORNDA
2L by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid and:
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2; (a) depositing the sealed envelope with the United States Postal Service;
(b) placing the envelope for collection and mailing on the date and at the place shown below
12
following our ordinary business practices. Iam readily familiar with this business' practice for
13 collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection of business with the United States Postal Service in a sealed envelope with
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postage fully prepaid.
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______
Via personal service.
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X Via electronic transmittal.
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l8 Via facsimile transmission.
19 Name and address of person served:
20
Ray Sandelman, Esq. Sara M. Knowles, Esq.
21 Attorney at Law Leland, Morrissey & Knowles, LLP
196 Cohasset Road, Suite 225 1660 Humboldt Road, Suite 6
22 Chico, CA 95928 Chico, CA 95928
ravmond@sandelmanlaw.com sknowles@chicolawver.com
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Counsel for Plaintiff/Cross-Defendant Wayne Counsel for John Denton, Conservator of the
24 A. Cook Estate of Edward F. Niderost and Successor
Trustee of the Edward F. Niderost Living Trust
25 dated November 8, 1998
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Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Page 5 Case No. 20CV00905
Larry Lushanko, Esq. David Grifth, Esq.
Law Ofces of Larry G. Lushanko Grifth, Horn & Sheehan, LLP
1241 E. Mission Road 1530 Humboldt Road, Suite 3
Fallbrook, CA 92028 Chico, CA 95928
0fce®lushankolawcom david@davidgrifthlaw.com
Counsel for Cress-Defendant Lawrence Counsel for Cross-Defendant Randall Eugene
Patterson Culley
I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
Executed on January 6, 2021, at Chico, California. ? _
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Ammka
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lO Rebecca Y‘uhas
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Reply in Support of Motion for Protective Order
Deposition of Edward F. Niderost Not Be Taken Page 6 Case No. 20CV00905
Preview
Super' Gum bf Gamma Erwin Williams (206908) MCKERNAN, LANAM, BAKKE & WILLIAMS LLP County (If Butts I I 55 Independence Circle, Suite 106 L 1/6/2021 L Chico, California 95973 Tel. (530) 877—4961 Fax (530) 877-8163 E E D ' Ia rk D Guardian Ad Litem for Edward F. Niderost By ”EH-! FILED SUPERIOR COURT 0F CALIFORNIA COUNTY OF BUTTE 10 11 12 WAYNE A. COOK, TRUSTEE OF THE Case NO. 20CV00905 WAYNE A. COOK 1998 FAMILY TRUST l3 DATED 12/29/98, REPLY IN SUPPORT OF MOTION FOR 14 PROTECTIVE ORDER THAT THE Plaintiff, DEPOSITION OF EDWARD F. NIDEROST 15 NOT BE TAKEN AND MEMORNDA V. l6 Accompanying Documents: l7 EDWARD F. NIDEROST, ct a1., Further Declaration of Erwin Williams, Guardian 18 Defendants. Ad Litem, and Declaration of John Denton, Conservator. 19 20 Date: January l3, 2021 21 Time: 9:00 am. 22 Dept: 1 AND RELATED CROSS COMPLAINTS. Judge: The Honorable Tamara L. Mosbarger 23 Date Action Filed: April 22, 2020 Trial Date: March 29, 2021 24 25 I. Capacities of the Conservatee 26 1. The capacities of a conservatee to marry, vote or create a will are not at issue in this case. Further, 27 the requisite capacities to marry, create a will or contract are separate and distinct. 28 Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Case NO. 20CV00905 2. “Mental capacity can be measured on a sliding scale, with marital capacity, followed by testamentary capacity, and on the high end is the capacity to enter contracts”. (See, Commentary i to PC] §l900 citing In re Marriage ofGreenway, (2013) 2] 7 Cal.App4th 628.) 3. The capacity to create a will is governed by PC §§6100 and 6100.5 providing, in relevant part, the testator must have sufcient mental capacity to understand the nature of the testamentary act, the nature and situation of his property, remember and understand his/her relations to descendants, family and those affected by the will. 4. The capacity to create a will is lower than the requisite capacity to contract; incur debts; or sell transfer, convey, or encumber property those being the very transactions at issue in this case and 10 as adjudicated in re: the Conservatorship of Mr. Niderost, Butte County Superior Court Case 11 Number 20PR00122. , 12 ll. Application of PC $811 to Conservatorship Proceedings l3 5. The Opposition states the Motion fails to correlate the mental decits at PC §811 with the l4 appointment of a probate conservator of the estate pursuant to PC §1801. l5 6. The relationship by and between the relevant code sections is stated at section E on page 4 of the l6 Motion. l7 7. In summary, PC §810 establishes the rebuttable presumption of capacity. l8 8. To overcome the presumption and obtain an order establishing a conservatorship, the petitioner l9 must prove by clear and convincing evidence that the proposed conservatee cannot manage his 20 nancial resources or resist fraud or undue inuence. “The petitioner meets the burden of proof 21 by applying the analytical structure of PC §811 to the facts of the proposed conservatee’s life.” 22 (See, CEB California Conservatorship Practice, May 2020 Update, §l.9 at page 1—14). 23 HI. Judicial Determination of Capacity 24 9. Mr. Niderost was conserved by court order meaning the petitioner in that matter proved, by clear 25 and convincing evidence, that Mr. Niderost has signicant mental decits sufcient for the court 26 to enter its order. 27 28 1 PC means California Probate Code. Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Page 2 Case No. 20CV00905 10. In applying the standards established by CA Evidence Code §702, the court determines a proposed Witness’ and/or deponent’s capacity. 11. The distinction between the cases cited by the Opposition regarding capacity to testify and this matter is the appointment of a probate conservator. In none of the cases cited by the Opposition had the proposed Witness been previously conserved. 12. Here, Mr. Niderost has been conserved, and the burden of proof necessary for the appointment of a conservator appear to exceed the standard established by CA Evidence Code §702 and supporting cases. 13. Further, in appointing a temporary conservator, the court specically granted Mr. Denton the 10 authority to engage in litigation on behalf of Mr. Niderost, to unwind “any real estate transactions ll occurring in the last 60 days.” (See, Further Declaration of Erwin Williams with corresponding 12 exhibits). The court clearly determined Mr. Niderost lacked the requisite capacity to adequately l3 commence and/or defend himself in litigation. 14 IV. Declaration of R. Eugene Cully 15 14. Mr. Cully is a party in this action. 16 15. The Opposition fails to provide any supporting evidence that Mr. Cully is qualied to make a 17 medical or legal opinion regarding Mr. Niderost’s mental functions, capacities or his ability to 18 competently testify in this matter. 19 V. Deposition of John Denton 20 16. Mr. Denton’s deposition was taken December 29, 2020, not November 29, 2020, as stated in Mr. 21 Sandelman’s Declaration supporting the Opposition, and subsequent to the ling of the Motion. 22 17. The Opposition alleges that since Mr. Denton had conversations with Mr. Niderost, he must be 23 competent to testify. (See, Opposition, commencing at line l7 of page 9, and Mr. Sandelman’s 24 Further Declaration at section 6 commencing at line ll of page 18). Mere conversations with an 25 incapacitated person do not equate to capacity to testify. 26 18. Mr. Denton, in his Declaration in Support of the Motion led concurrently with this Reply, states 27 his conversations with Mr. Niderost are general in nature, and by no means establish Mr. Niderost’s 28 competency to testify. Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Page 3 Case No. 20CV00905 VI. Request for Sanction 19. The court shall not impose sanctions if the party acted with substantial justication or other circumstances make the imposition of the sanction unjust. (California Code of Civil Procedure §2025.420(h)). 20. The ndings regarding a conservatee’s mental faculties and corresponding decits necessary for the appointment of a probate conservator, and the subsequent order for such appointment, are directly related to the Motion, that is, Mr. Niderost’s capacity to testify. 21. The effect of the conservatorship is a legitimate legal issue for which there appears to be little guidance directly on point. lO 22. The conservatorship of Mr. Niderost establishes sufcient justication for the Motion. Sanctions ll should be denied. t u 12 Dated: January 6,2021 f‘WW,WW:VM*%WCK r " éS ’ {if}: g ” \F _ Erwin Williams 13 Guardian AdjLitem for Edward Niderost ’ l4 Defendant 15 16 17 18 19 2O 21 22 23 24 25 26 27 28 Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Page 4 Case No. 20CV00905 PROOF OF SERVICE I am a citizen of the United States and employed in Butte County, California. I am over the age of eighteen ( 1 8) years and not a party to the Within action. My business address is 55 Independence Circle, Suite 106, Chico, California 95973. On January 6, 2021, I served the following: REPLY IN SUPPORT OF MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF EDWARD F. NIDEROST NOT BE TAKEN AND MEMORNDA 2L by placing a true copy thereof enclosed in a sealed envelope with postage fully prepaid and: 10 11 2; (a) depositing the sealed envelope with the United States Postal Service; (b) placing the envelope for collection and mailing on the date and at the place shown below 12 following our ordinary business practices. Iam readily familiar with this business' practice for 13 collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection of business with the United States Postal Service in a sealed envelope with l4 postage fully prepaid. 15 ______ Via personal service. l6 X Via electronic transmittal. l7 l8 Via facsimile transmission. 19 Name and address of person served: 20 Ray Sandelman, Esq. Sara M. Knowles, Esq. 21 Attorney at Law Leland, Morrissey & Knowles, LLP 196 Cohasset Road, Suite 225 1660 Humboldt Road, Suite 6 22 Chico, CA 95928 Chico, CA 95928 ravmond@sandelmanlaw.com sknowles@chicolawver.com 23 Counsel for Plaintiff/Cross-Defendant Wayne Counsel for John Denton, Conservator of the 24 A. Cook Estate of Edward F. Niderost and Successor Trustee of the Edward F. Niderost Living Trust 25 dated November 8, 1998 26 27 28 Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Page 5 Case No. 20CV00905 Larry Lushanko, Esq. David Grifth, Esq. Law Ofces of Larry G. Lushanko Grifth, Horn & Sheehan, LLP 1241 E. Mission Road 1530 Humboldt Road, Suite 3 Fallbrook, CA 92028 Chico, CA 95928 0fce®lushankolawcom david@davidgrifthlaw.com Counsel for Cress-Defendant Lawrence Counsel for Cross-Defendant Randall Eugene Patterson Culley I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 6, 2021, at Chico, California. ? _ if”; ’x ,a’ f“: Ammka f aw lO Rebecca Y‘uhas ll 12 13 l4 15 l6 l7 18 l9 20 21 22 23 24 25 26 27 28 Reply in Support of Motion for Protective Order Deposition of Edward F. Niderost Not Be Taken Page 6 Case No. 20CV00905