Preview
F Superior Court of California F
Raymond L. Sandelman SBN 078020 County of Butte
Attorney at Law | |
196 Cohasset Road, Suite 225 12/30/2020 L
Chico, CA 95926-2284
(530) 343-5090 / (530) 343-5091 (FAX) D Kimberly ah, Clesk D
Email: Raymond@sandelmanlaw.com By Deputy
Electronically FILED
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10} IN AND FOR THE COUNTY OF BUTTE
11 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
WAYNE A. COOK 1998 FAMILY
12) TRUST DATED 12/29/98, OPPOSITION BY WAYNE COOK
INDIVIDUALLY AND AS TRUSTEE OF THE
13 Plaintiff, WAYNE A. COOK 1998 FAMILY TRUST
DATED 12/29/98 TO MOTION FOR
14)
PROTECTIVE ORDER THAT THE
15 DEPOSITION OF EDWARD NIDEROST NOT
BE TAKEN; REQUEST FOR SANCTIONS
16 EDWARD F. NIDEROST, et. al.,
17 Defendants. Attached Documents: Declarations of Ronald
Eugene Culley And Raymond L. Sandelman
18 /
19) AND RELATED CROSS COMPLAINTS
20 / Hearing Date: 1/13/2021
Hearing Time: 9:00 a.m.
21 Department: 1
Judge: Tamara Mosbarger
22
Date of Complaint: 4/22/2020
23 Trial Date: 3/29/2021
24
25)
26
27
28
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
EDWARD NIDEROST NOT BE TAKEN: REQUEST FOR SANCTIONS
Table of Contents
Table of Authorities i - lll
1 Introduction
2 There Is No Law That Links A Conservatorship To Capacity To Testify ..
3 The Establishment Of A Conservatorship Is Not An Adjudication Of Lack
Of Capacity
Mr. Niderost’s Burden To Show That He Has No Capacity To Testify
Only Extreme Mental Disorders Disqualify A Person From Testifying 11
There Are No Foundational Facts Supporting Mr. Niderost’s Claim of
10
Undue Burden 12
11
Mr. Niderost Has Not Satisfied His Burden To Obtain A Protective Order 13
12
Edward Niderost Should Be Sanctioned In The Sum Of $1,848 14
13
Bs - Conclusion 14
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os Table of Exhibits ... 16
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Sogn
ax [8:704.1] PRACTICE POINTER: Don't confine your questions to evidence
20 admissible at trial. Use open-ended questions (“Why?” “What was the reason?”) that
21 call on the deponent to give background information and explanations.
Questions calling for hearsay (“What have you heard?”), opinions or
22 conclusions (“How did she look?” “How serious were her injuries?”) are also usually
proper.
23
24 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2020)
25
26 Witkin’s explanation of the procedure for disqualification of a witness does not include the
27 rule advocated in the Moving Brief that the establishment of a conservatorship is an adequate
28 showing that the conservatee may not testify. Here is Witkin’s analysis:
7
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
FNWARD NINEROCT NOT RF TAKEN: PRATIRGT EAD CANOTIANC
(2) Procedure for Disqualification. Three procedural rules apply to these
grounds for disqualification:
(a) The opponent who challenges a witness's mental capacity to testify, on the
ground that the witness is too young or is mentally defective, has the burden of proof
on the issue. (Law Rev. Com. Comment to Ev.C. 405; People v. Craig (1896) 111
C. 460, 469, 44 P. 186; People v. Lewis (2001) 26 C.4th 334, 360, 361, 110 C.R.2d
272, 28 P.3d 34 [witness suffered from mental disorders and his testimony was hard
to understand; but he was capable of expressing himself, and fact that he initially
refused to answer defendant's question regarding victim's strangulation did not
establish by preponderance of evidence that he did not understand duty to tell truth];
People v. Tyree (1913) 21 C.A. 701, 706, 132 P. 784; People v. Gasser (1917) 34
C.A. 541, 543, 168 P. 157; People v. Knox (1979) 95 C.A.3d 420, 431, 157 CLR.
238, citing the text; People v. Willard (1983) 155 C.A.3d 237, 239, 202 C.R. 100;
People v. Hall (1984) 157 C.A.3d 538, 545, 223 C.R. 267, citing the text [witness
gave impression of being “emotionally unstable” and biased against defendant, but
Bo 10 “this does not translate into incompetency”];
ae see 14 A.L.R.4th 802 [capacity of
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11 declarant who was asleep or unconscious]; 50 A.L.R.4th 1188 [capacity of deaf-mute
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25 oR as witness]; 81 Am.Jur.2d (2004 ed.), Witnesses § 183 et seq.)
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aoa 12 (b) The determination is finally made by the trial judge, without resubmission
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a-8R of the issue to the jury. (Ev.C. 405; Law Rev. Com. Comment to Ev.C. 701; see
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ees
13
8555 People v. McCaughan (1957) 49 C.2d 409, 421, 317 P.2d 974; People v. Tyree,
§E2
E< En 14 supra, 21 C.A. 706People v. Tyree, supra, 21 C.A. 706; People v. Delaney (1921)
Za 52 C.A. 765, 769, 771, 199 P. 896; People v. Blagg (1970) 10 C.A.3d 1035, 1039,
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Ba 15 89 C.R. 446, citing the text; 3 Cal. Evidence (5th), Presentation at Trial, § 73.)
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16 (c) In any proceeding held outside the presence of the jury, “the court may
reserve challenges to the competency of a witness until the conclusion of the direct
17 examination of that witness.” (Ev.C. 701(b).)
18 2 Witkin California Evidence (5th Ed 2020) Witnesses § 41
19 People v. Giron-Chamul (2016) 245 Cal.App.4th 932 in a similar manner discusses the
20 elements of Evidence Code section 701 and the burden to show lack of capacity:
21
In general, “every person, irrespective of age, is qualified to be a witness.”
22 (Evid. Code, § 700; see People v. Roberto V. (2001) 93 Cal. App.4th 1350, 1368, 113
Cal.Rptr.2d 804 [collecting cases in which four-and five-year-old children found
23 competent to testify].) “A person is disqualified to be a witness,” however, “if he or
she is ... [i]ncapable of understanding the duty of a witness to tell the truth.” (Evid.
24
Code, § 701, subd. (a)(2).) The issue of competency is distinct from the issue of
25 credibility, and “contradictory [or inconsistent] testimony does not suffice to show
incapacity to understand the duty of truth[.]” (People v. Avila (2006) 38 Cal.4th 491,
26 589, 43 Cal.Rptr.3d 1, 133 P.3d 1076; People v. Mincey (1992) 2 Cal.4th 408, 444,
27 6 Cal.Rptr.2d 822, 827 P.2d 388; In re Katrina L. (1988) 200 Cal.App.3d 1288,
1299, 247 Cal.Rptr. 754.) The party challenging a witness's competency has the
28
8
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
FNWARN NINERACT NOT RE TAVEN. DEATIDCT END CANIOTINATS
burden to prove incompetency by a preponderance of the evidence. (Avila, at p. 589,
43 Cal.Rptr.3d 1, 133 P.3d 1076.)”
Mr. Niderost’s guardian ad litem has made no effort to set forth evidence that would satisfy
his burden.? Mr. Niderost is likely to be the only person who has first-hand knowledge of the claim
asserted in the Moving Brief that the deposition will be an undue burden. Weil & Brown explain
that first hand knowledge on this issue is critical.
> [8:690] PRACTICE POINTER: Normally, the motion for protective order
is based on declarations by the moving party's counsel. Such declarations must state
facts (rather than mere conclusions) showing grounds for relief. i.e., it is not enough
simply to repeat the statutory grounds (“unwarranted annoyance, embarrassment or
oppression or undue burden and expense”).
ao 10 However, to be admissible, declarations generally must be based on
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11 demonstrated personal knowledge and often it is only the client (or others) who has
22a first-hand knowledge of issues such as burden.
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axds Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
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z< a0 14 The attached declaration of Ronald Eugene Culley sets forth facts that Mr. Niderost is capable
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16 between truth and falsity.
17 The Declaration of Raymond L. Sandelman states that he deposed John Denton, the
18 conservator of Edward Niderost, and the successor trustee of Mr. Niderost’s trust on December 29,
19 2020. Mr. Denton testified as to conversations he had with Mr. Niderost in October, September,
20 August, and February of 2020, as well as ten to twenty conversations he had with Mr. Niderost
21 during the period of February to August of 2020. Mr. Denton testified about conversations he had
22
> Mr. Williams’ declaration states that Mr. Niderost was conserved and then makes arguments concerning
23 capacity. The argument is inappropriate.
5) [9:49.5] Declarations limited to facts, not legal arguments: It is improper to include legal
24 arguments in a declaration. (E.g., “the interests of justice require ” or “the following matters
constitute ‘good cause’ ...”) As noted by one court, this is “a sloppy practice which should stop ... [I]t
25 makes a mockery of the requirement that declarations be supported by statement made under penalty of
perjury.” [Marriage of Heggie (2002) 99 CA4th 28, 30, 120 CR2d 707, 709, fn. 3] Nor do judges
26 appreciate legal argument in declarations as a ruse to avoid page limits in a memorandum of points and
authorities.
27
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020)
28
9
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
FNWARD NINERACT NOT RE TAVEN. DEATICET EAD CAMOTIARIG
with Mr. Niderost about the status of the litigation and Mr. Niderost’s recollection of the events that
are the subject matter of the litigation. He also answered questions by Mr. Lushanko about Mr.
Niderost’s recollection of the events involving the transaction that Mr. Patterson has been sued over.
Raymond Sandelman has estimated that over 60% of Mr. Denton’s six and half hours of deposition
testimony related to what Mr. Niderost had told him.
The conservatorship established for Mr. Niderost was based upon numerous statements Mr.
Denton claimed were made to him by Mr. Niderost. Attachment 5(c)(2) of the Exhibit 1 to Raymond
L. Sandelman’s declaration is a copy of portions of the petition where Mr. Denton relates the
numerous conversations that he had with Mr. Niderost which were offered for the truth of the matter
a. 10, asserted regarding the need for a conservatorship. As part of the petition for appointment of a
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rm 11 conservator, both Mr. Niderost and his wife executed written consents to the petition for appointment
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Zex 13 that Mr. Niderost had the capacity to execute a declaration on the substantive issue of his need for
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zx on 14 a conservator. Probate Code section 1810 permits the use of a consent by a proposed conservatee
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aR 15 only “If the proposed conservatee has sufficient capacity at the time to form an intelligent
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16 preference.” Now, Mr. Niderost’s guardian ad litem wants to prevent counsel from obtaining
17 evidence from Mr. Niderost about the underlying transactions, without any articulation that there
18 has been any change in facts since the presentation to the Court of substantive facts based upon Mr.
19 Niderost’s telling. Mr. Niderost wants to bar Mr. Cook from using “the greatest legal engine ever
20 invented for discovery of the truth.” (See People v. Brock, supra).
21 The declaration of Ronald Eugene Culley sets forth facts that Mr. Niderost is capable of
22 expressing himself concerning the matter so as to be understood, and that he knows the difference
23 between truth and falsity. Mr. Culley has had numerous conversations with Ed Niderost over the
24 past year and a half. The following conversations took place within the last two months:
25 (a) Mr. Niderost asked Mr. Culley if Mr. Culley had come across any new books about
26 Abraham Lincoln. Mr. Culley had previously provided him with books about the former president.
27 (b) Mr. Niderost advised Mr. Culley that he has spoken to his neighbor to correct a
28 misstatement that he (Mr. Niderost) had made to the neighbor about a jack Mr. Culley owns. Mr.
10
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
FNWARD NINERACT NAT RF TAVEN. DENTICET CAD CAROTIANTO
Niderost acknowledged to me that he had incorrectly told the neighbor that the jack belongs to him
(Mr. Niderost) and that he would correct his misstatement.
(c) Mr. Niderost advised Mr. Culley that he likes to shop at Costco. He especially likes the
ginger beer, health bars, and ice cream that he purchases there.
(d) Mr. Niderost has told Mr. Culley that he can never repay Mr. Culley for the help that
Mr. Culley has given him.
(e) Mr. Niderost has told Mr. Culley that a neighbor named Nathan had not come over to
his house to help him regarding a problem with a speaker.
(f) Mr. Niderost advised Mr. Culley that he disapproves of his daughter’s appearance,
Bo
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16 @) Mr. Niderost has asked Mr. Culley how a friend of his, named Karen Coffron, is doing.
17 5. Only Extreme Mental Disorders Disqualify A Person From Testifying
18 People v. Lewis (2001) 26 Cal.4th 334, 360-361 discusses cases holding that a showing of a
19 mental disorder is not by itself sufficient to disqualify a person from testifying:
20
Although Pridgon may have suffered from mental disorders and his testimony
21 was difficult to comprehend at times, the record does not support the claim that he
was incapable of communicating so as to be understood, pursuant to Evidence Code
22 ection 701, subdivision (a)(1). (See People v. Anderson, supra, 25 Cal.4th at p. 574,
106 Cal.Rptr.2d 575, 22 P.3d 347 [no substantial evidence that witness, who
23
delusionally believed imaginary son was present during murder, lacked capabilities
24 under Evid. Code, § 701, subd. (a)(1) & (2) ]; People v. Jones, supra, 268 Cal.App.2d
at pp. 165-166, 73 Cal.Rptr. 727 [prosecution witness characterized as a “mental
25 defective” by trial judge was not incompetent despite his conflicting and inconsistent
26 testimony]; People v. Scaggs (1957) 153 Cal.App.2d 339, 354, 314 P.2d 793 [record
did not disclose that witness who was described as senile and of unsound mind was
27 incompetent as a matter of law].) Consistent with Pridgon's diagnosis of having the
intellect of a seven year old, he expressed difficulty with complex questions and often
28
ll
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
FNWARD NINERACT NOT RE TAVEN. DEATIFET GAD CANOTIANE
responded in incomplete, sometimes nonsensical, sentences. Mere difficulty in
understanding a witness, however, does not disqualify that witness under Evidence
Code section 701, subdivision (a). To the extent defendant contends Pridgon's
responses were unbelievable—including his testimony that he “heard” blood and knew
how money “sounds”—this was an issue of credibility for the jury and not relevant to
the issue of Pridgon's competency. (See Adamson v. Department of Social Services
(1988) 207 Cal.App.3d 14, 20, 254 Cal.Rptr. 667.) (underlining added)
The last sentence in the above quotation shows that testimony such as a delusional belief that
an imaginary son was present during a murder, senility and an unsound mind, responses in
incomplete, sometimes nonsensical, sentences, and unbelievable testimony that the witness “heard”
blood and knew how money “sounds”, are not a basis for disqualifying a witness from testifying.
ao 10 This type of testimony gets evaluated based upon credibility.
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11 There is of course a point where the learned trial judge should not allow testimony. People
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62 12 v. Jackson (1969) 273 Cal.App.2d 248, 255, cited in the Moving Brief holds that the court should
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65 BSSs
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16 determined by the trial court in the exercise of its judicial discretion. (People v. Ives,
supra, 17 Cal.2d at 476 [110 P.2d 408]; People v. Harrison, supra, 18 Cal.App. at
17 295 [123 P. 200]; see McCormick on Evidence, p. 123.) Manifestly, however, sound
discretion demands the exercise of great caution in qualifying as competent a witness
18
who has a history of insane delusions relating to the very subject of inquiry in a case
19 in which the question is not simply whether or not an act was done but, rather, the
manner in which it was done and in which testimony as to details may mean the
20 difference between conviction and acquittal.” (People v. McCaughan, supra, 49
21 Cal.2d at pp. 420, 421.) (underlining added)
22 No one in this litigation has contended that Mr. Niderost presently suffers from insane
23 delusions.
24 6. There Are No Foundational Facts Supporting Mr. Niderost’s Claim Of Undue Burden
25 The conclusory claim at Pages 5 and 6 of the Moving Brief that the deposition will be
26 unreasonably burdensome, lacks any foundational support. A claim of undue burden must be
27 supported by the objecting party.
28 M11
12
OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998
FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF
RNWARN NIMEPACT NAT RE TAVEN. DENTIEST EAN CANIOTIAATO
If discovery is being resisted on the ground that its production will result in
an excessive burden, expense, or intrusion under CCP §2017.020(a), the judge must
measure that burden, expense, or intrusion as part of the weighing process. Williams
v. Superior Court (2017) 3CSth 531, 549-550, 220 CR3d 472. This requires proof
and analysis of specific details. A party that is objecting to discovery on this basis
must supply supporting evidence. An objection based on burden must be supported
by evidence showing the amount of work required to furnish the requested discovery.
3 CSth at 550. (underlining added)
Examples. \t is not sufficient for the party resisting discovery to alleged that,
to answer a certain interrogatory, it would have to search the records of 78 of its
branch offices; that party must estimate how many hours of labor would be required
to accomplish the search. West Pico Furniture Co. v. Superior Court (1961) 56 C2d
407, 417, 15 CR 119. See Mead Reinsurance Co. v. Superior Court (1986) 188 CA3d
313, 232 CR 752 (uncontested factual showing that it would take 1083.33 hours of
labor to comply with request for production of documents held sufficient to justify
ao 10 discovery order as to limit scope of what had to be produced); Day v. Rosenthal
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sé (1985) 170 CA3d 1125, 112, 217 CR 89 (striking down interrogatories that would
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11 take over 1600 hours of labor to answer).
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a) [=] has property in this county, or
(c) [=] commencement of the conservatorehi ip in this county
is in the best interest of the proposed conser
reasons specified in Attachment 3a. vatee for the
Petitioner (answer items (1) and (2) and check
all other items that apply)
(1) CJis [£1] is not @ creditor or an agent of a craditor of the
(proposed) conservatee.
@ CJ's [5€] Is not
a debtor or an agent of a debtor of the (prop
osed) conservatee.
(3) [5€] is the proposed [] successor conservator.
(4) [J Isthe (proposed) conservatee, (if
this item is not checked, you must also compl
(5) [=] Is the spouse ete item 3f)
of the (proposed) conservatee. (You must also
complete item 6.)
(6) [J is the domestic partner or form jer dom \estic partne
r of the (proposed) conservatee, (You must also complete item 7.)
(7) [1] isa relative of the (proposed) conservz ates as
(specify, relationship):
(8) [5€] is an interested person or friend of th: 1@ (prcposed)
conservatee.
(9) [1 isa state or local public entity, officer, or emplo
yee.
(10}[~] Is the guardian of the Proposed conservates.
(11-[[] is a bank [1
is another ‘entity authorized to conduct the busin
ess of a trust company.
(12)[] is a professi ional fiduciary within the meaning
of Business and Professions Code se ction 6501(f)
the Professional Fiduciaries Bureau of the who is licensed by
De partment of Consumer Affairs. Petitior ner's
item 1 on page 4 of the attached Professicnal license number is provided in
affachment. You must also complete item 2
Fiduciz lary Attachment. (Use form GC-210(A-PF/GC-310(A-PF)
on page 2of that form and item 3d below.) for this
* Seo Item £b on page 4,
GC-310 Rov. Jenuary 1, 2019]
PETITION FOR APPOINTMENT OF PRO Page
2 of 8
BATE CONSERVATOR
{Probate—Guardianships and Conservators
hips)
ICONSERVATORSHIP OF GC-310
(name): Edward F. Niderost ‘CASE NUMBER:
(PROPOSED) CONSERVATEE
3. ¢. Proposed [—] successor conservator is (check all that apply)
(1) [3€] anominee. (Affix nom lination as Attac
hment 3c(1).)
(2} [7] the spouse of the (proposed) conservate
s. (You must also comp! ete item 6.)
(3) [-] the domestic Pi artner or former dom estic
partner of the (proposed) conservatee.
{4} [77] a relative of the (proposed) (You must also complete item 7.)
cons ervatee a8 (specify relationship):
(5) [) abank. [J another entity ai thorized to conduct the busin
(6) wd
F4 ess of a trust company.
@ nonprofit charitable corporatio in that meets the
requirements of Probate Code section 2104,
(7) a professional fiduciary, as defined in Business and
concerning licensure or exemption Professi . ions Code section 6501(f). His or her state
is Provided in item 1 on p: age 1 of the attac ment
Attachment. (Use form GC-210(A-PF/GC-3 hed Professional. Fiduciary
10(A-PF) for thi is attachment.)
(8) [J other (specity):
[1 Enga
gement and prior relations| hip with petiti
oning professional fiduciary (complete
Professional Fiduciaries Burea this item if petitioner is licensed by the
Mu)
(1) [] Statements of who engaged
petitioner, or how petitioner was engai \géd fo file this
Prior relationship petitioner had withthe patition, and a description of any
(proposed) conservatee o1 r his or her family
‘on page 2 of the attached Profa: issional or friends, are provided in item 2
Fiduciary Attachment. (Use form GC-210(A-P
attachment} F)/GC-310(A-PF) for this
(2) [=]Apetition for appointment of a tempora Fy
Conservator is filed with this petition. That
who engaged petitioner, how petitioner petition contains Statements of
was e1 ngaged to file this petitior in, and a descrip!
petitioner had with the (proposed) conse tion of any prior.relationship
rvat fee or his or her family and friends,
Character and estimated value of the
property of the estate (complete items
(1) [7] or appointment of si juccessor conse (1) or (2) and (3), (4),
rvater only, ‘complete Inventory‘and Appraisal and (5):
Personal property: $ filed. by predecessor):
» per Inventory and Appraisal filed in this proce
(specify dates of filing of all inventories ard eding on
apprai isals):
(2) [] Estimated vatue of personal property:
$
(3) Annual gross income from
(a) real property:
(6) personal property:
(c) pensions:
(d) wages:
(e) public assistance benefits:
() other:
(4) Total of (1) or (2) and (3):
(5) Real property:
(a) [7] per inventor ry and Appraisal identified in item
(1).
(>) [—] estimated value.
(1 Due diligence (complete this item
if the (proposed) conservatee is not a petitioner):
(1) Efforts to find the (p Foposed)
conservatee's relatives or reasons why
on Attachment 3f(1 it is not feasible to contact any of them
are described
(2) Statements of the (proposed) conservate
e's preferences concerning the appointment
the appointment of the Proposed (successor) of. any (successor conservator and
ere contained on Attachment 34(2). ) Conservator or reasons why it is not feasible to ascertain )those preferences
GC-310 [Rev, January
1, 2019]
PETITION FOR APPOINTMENT OF PRO Page
a of8
BATE CONSERVATOR
(Probate—Guardianships and Conserva
torships)
|CONSERVATORSHIP OF GC-310
(name): Edward F. Niderost CASE NUMBER:
(PROPOSED) CONSERVATEE
3. g. So far as known to petitioner, a conservato
rship or equivalent Proceeding concerning
the Proposed conservatee
[35] has not [7] has been filed in another Jurisdiction, includin, 1g @
court of a federally-recognized Indian tribe with
jurisdiction (see Prob. Code, § 2031(b)).
(if you answered “has,” identify the jurisdiction
and state the date the case was filed):
(Proposed) conservatee
a [J is Gq
75 isnot a patient in or on leave of
absence from a state institution under the
Department of tate Hospitals or the Califomia Depertment of jurisdiction of the California
Developmental Services (specify state institution):
b. ["] is receiving or entitled to receive [<1] is
neither receiving nor entitled to receive
benefits from the U.S, Dey partment of Veterans
Affairs {estimate amount ‘of monthly benefi
c [is [21 is not, so far as is known to petition ler, 2 memb
erof
t payable):
a federally recognized Indian tribe.
(if you answered "is," complete tems (1-4
):
(1) Name of tribe:
(2) Location of tribe (if the tribe is located in
more than one state, the state that is
the tribe's ‘Principal location):
(3) The proposed conservatee [) does (1) does not reside on tribal land.”
(4) So far as known to petitioner, the Proposed conse
rvatee {[_] owns [1 does not own property on tribal land.
a. [3€] Proposed conservatee (initial appointment
of‘conse rvator only)
(1) [32] is an adult,
(2) [_] will be an adult on the effective d:
late of the order (date):
(3) [_] isa martied minor.
(4) [—] is aminor whose marriage has
been dissolved,
[] Vacancy in office of conservator (appointme
nt of successor conse: val for only. A patition
conservator after the death of a predeces for appointment ofalimited
soris a atition for initial ay ppointment. (Prob. Code,
There is a vacancy in the offi ice of conservator § 1860.5(a)(1).)
of the [—_] person (] estate
[=] specified in Attachme: nt 5b. [1 for the reasons
specified below.
* “Tribal land” Is land that is, with respectto a specific Indian tribe and the members of that tribe,
18 U.S.C. § 1151. “Indian country,” as defined in
GC.310
[Rev, Jewary 1, 2019
PETITION FOR APPOINTMENT OF PROBATE Paged of 6
GONSERVATOR
(Probate—Guardianships and Conservato
rships)
ICONSERVATORSHIP OF GC-310
(name): Edward F. Niderost CASE NUMBER:
(PROPOSED) CONSERVATEE
5. ¢. (Proposed) conservatee requires
a conservator and is
(1) [7] unable to property provide for his or
her personal needs for Physical health, food,
Supporting facts are [—] specifi ied in Attachment Se(1)
clothing, or shelter,
[1 as follows:
2) Ge substantially unable to manage
his or her financial resources or to res’
Supporting facts are [3] specified in Attachment 5c(2) ist fraud or undue influence.
[1] as follows:
GC-310 Rev, January 1, 2019]
PETITION FOR APPOINTMENT OF PRO
BATE CONSERVATOR Page Sota
(Probate—Guardianships and Conserva
torships)
ICONSERVATORSHIP OF GC-310
{name}: Edward F. Niderost CASE NUMBER:
(PROPOSED) CONSERVATEE
5. d. [3] (Proposed) conservatee voluntarily
Fequ the appoi
es ntmen
ts t ofa ~[—] successor conservator.
(Specify facts showing good cau:
in Attachment 5(a).)
. [3] Confidential Supplemental Informal
tion (form GC-312) is filed with this petition. (Initial appoin
All petitioners must file this form tment of conservator only.
except banks and o} ther entities authorized to do business as
f. (Proposed) conservatee a trust company.)
[7] does
1420, Petitioner is aware of the requireme: x] does not havea developmental disability as define
d in Probate Code section
nts of Pr robate Code section 1827.5, (Specity the
disability
in Attachment 5A. nature and degree of thealleged
6. [] Petitioner or proposed [J successor Conservator is the spouse of the (prop
iif this statement is true, you must answer a osed) conservatee.
orb.)
a. [—_] The (proposed) conservatee's Spouse is not a party to any action or Procee
legal separation, dissolution of marriage, ding against the (proposed) conservatee for
annu'ment, or adjudication of nullity of their marriage.
b. Although the (proposed) conser tvatee's spous
e is a party to an action or proceeding against
for legal separation, dissolutior n, annulment, the (proposed) conservatee
or adjudication of. nullity of their marriage,
of these proceedings, itis in the best interest of the
Preview
F Superior Court of California F Raymond L. Sandelman SBN 078020 County of Butte Attorney at Law | | 196 Cohasset Road, Suite 225 12/30/2020 L Chico, CA 95926-2284 (530) 343-5090 / (530) 343-5091 (FAX) D Kimberly ah, Clesk D Email: Raymond@sandelmanlaw.com By Deputy Electronically FILED Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10} IN AND FOR THE COUNTY OF BUTTE 11 WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 WAYNE A. COOK 1998 FAMILY 12) TRUST DATED 12/29/98, OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE 13 Plaintiff, WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR 14) PROTECTIVE ORDER THAT THE 15 DEPOSITION OF EDWARD NIDEROST NOT BE TAKEN; REQUEST FOR SANCTIONS 16 EDWARD F. NIDEROST, et. al., 17 Defendants. Attached Documents: Declarations of Ronald Eugene Culley And Raymond L. Sandelman 18 / 19) AND RELATED CROSS COMPLAINTS 20 / Hearing Date: 1/13/2021 Hearing Time: 9:00 a.m. 21 Department: 1 Judge: Tamara Mosbarger 22 Date of Complaint: 4/22/2020 23 Trial Date: 3/29/2021 24 25) 26 27 28 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF EDWARD NIDEROST NOT BE TAKEN: REQUEST FOR SANCTIONS Table of Contents Table of Authorities i - lll 1 Introduction 2 There Is No Law That Links A Conservatorship To Capacity To Testify .. 3 The Establishment Of A Conservatorship Is Not An Adjudication Of Lack Of Capacity Mr. Niderost’s Burden To Show That He Has No Capacity To Testify Only Extreme Mental Disorders Disqualify A Person From Testifying 11 There Are No Foundational Facts Supporting Mr. Niderost’s Claim of 10 Undue Burden 12 11 Mr. Niderost Has Not Satisfied His Burden To Obtain A Protective Order 13 12 Edward Niderost Should Be Sanctioned In The Sum Of $1,848 14 13 Bs - Conclusion 14 aR sé Se 14 os Table of Exhibits ... 16 Bga am og 15 Eee Sogn ax [8:704.1] PRACTICE POINTER: Don't confine your questions to evidence 20 admissible at trial. Use open-ended questions (“Why?” “What was the reason?”) that 21 call on the deponent to give background information and explanations. Questions calling for hearsay (“What have you heard?”), opinions or 22 conclusions (“How did she look?” “How serious were her injuries?”) are also usually proper. 23 24 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 25 26 Witkin’s explanation of the procedure for disqualification of a witness does not include the 27 rule advocated in the Moving Brief that the establishment of a conservatorship is an adequate 28 showing that the conservatee may not testify. Here is Witkin’s analysis: 7 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF FNWARD NINEROCT NOT RF TAKEN: PRATIRGT EAD CANOTIANC (2) Procedure for Disqualification. Three procedural rules apply to these grounds for disqualification: (a) The opponent who challenges a witness's mental capacity to testify, on the ground that the witness is too young or is mentally defective, has the burden of proof on the issue. (Law Rev. Com. Comment to Ev.C. 405; People v. Craig (1896) 111 C. 460, 469, 44 P. 186; People v. Lewis (2001) 26 C.4th 334, 360, 361, 110 C.R.2d 272, 28 P.3d 34 [witness suffered from mental disorders and his testimony was hard to understand; but he was capable of expressing himself, and fact that he initially refused to answer defendant's question regarding victim's strangulation did not establish by preponderance of evidence that he did not understand duty to tell truth]; People v. Tyree (1913) 21 C.A. 701, 706, 132 P. 784; People v. Gasser (1917) 34 C.A. 541, 543, 168 P. 157; People v. Knox (1979) 95 C.A.3d 420, 431, 157 CLR. 238, citing the text; People v. Willard (1983) 155 C.A.3d 237, 239, 202 C.R. 100; People v. Hall (1984) 157 C.A.3d 538, 545, 223 C.R. 267, citing the text [witness gave impression of being “emotionally unstable” and biased against defendant, but Bo 10 “this does not translate into incompetency”]; ae see 14 A.L.R.4th 802 [capacity of <é Ge 11 declarant who was asleep or unconscious]; 50 A.L.R.4th 1188 [capacity of deaf-mute os gs 25 oR as witness]; 81 Am.Jur.2d (2004 ed.), Witnesses § 183 et seq.) B=E woe aoa 12 (b) The determination is finally made by the trial judge, without resubmission gon a-8R of the issue to the jury. (Ev.C. 405; Law Rev. Com. Comment to Ev.C. 701; see agao Zer ees 13 8555 People v. McCaughan (1957) 49 C.2d 409, 421, 317 P.2d 974; People v. Tyree, §E2 E< En 14 supra, 21 C.A. 706People v. Tyree, supra, 21 C.A. 706; People v. Delaney (1921) Za 52 C.A. 765, 769, 771, 199 P. 896; People v. Blagg (1970) 10 C.A.3d 1035, 1039, ae Ba 15 89 C.R. 446, citing the text; 3 Cal. Evidence (5th), Presentation at Trial, § 73.) ge 16 (c) In any proceeding held outside the presence of the jury, “the court may reserve challenges to the competency of a witness until the conclusion of the direct 17 examination of that witness.” (Ev.C. 701(b).) 18 2 Witkin California Evidence (5th Ed 2020) Witnesses § 41 19 People v. Giron-Chamul (2016) 245 Cal.App.4th 932 in a similar manner discusses the 20 elements of Evidence Code section 701 and the burden to show lack of capacity: 21 In general, “every person, irrespective of age, is qualified to be a witness.” 22 (Evid. Code, § 700; see People v. Roberto V. (2001) 93 Cal. App.4th 1350, 1368, 113 Cal.Rptr.2d 804 [collecting cases in which four-and five-year-old children found 23 competent to testify].) “A person is disqualified to be a witness,” however, “if he or she is ... [i]ncapable of understanding the duty of a witness to tell the truth.” (Evid. 24 Code, § 701, subd. (a)(2).) The issue of competency is distinct from the issue of 25 credibility, and “contradictory [or inconsistent] testimony does not suffice to show incapacity to understand the duty of truth[.]” (People v. Avila (2006) 38 Cal.4th 491, 26 589, 43 Cal.Rptr.3d 1, 133 P.3d 1076; People v. Mincey (1992) 2 Cal.4th 408, 444, 27 6 Cal.Rptr.2d 822, 827 P.2d 388; In re Katrina L. (1988) 200 Cal.App.3d 1288, 1299, 247 Cal.Rptr. 754.) The party challenging a witness's competency has the 28 8 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF FNWARN NINERACT NOT RE TAVEN. DEATIDCT END CANIOTINATS burden to prove incompetency by a preponderance of the evidence. (Avila, at p. 589, 43 Cal.Rptr.3d 1, 133 P.3d 1076.)” Mr. Niderost’s guardian ad litem has made no effort to set forth evidence that would satisfy his burden.? Mr. Niderost is likely to be the only person who has first-hand knowledge of the claim asserted in the Moving Brief that the deposition will be an undue burden. Weil & Brown explain that first hand knowledge on this issue is critical. > [8:690] PRACTICE POINTER: Normally, the motion for protective order is based on declarations by the moving party's counsel. Such declarations must state facts (rather than mere conclusions) showing grounds for relief. i.e., it is not enough simply to repeat the statutory grounds (“unwarranted annoyance, embarrassment or oppression or undue burden and expense”). ao 10 However, to be admissible, declarations generally must be based on ae sé Se 11 demonstrated personal knowledge and often it is only the client (or others) who has 22a first-hand knowledge of issues such as burden. Be 12 goan axds Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Ag bad Ze Ze~ 13 Group 2020) gE" z< a0 14 The attached declaration of Ronald Eugene Culley sets forth facts that Mr. Niderost is capable Za 5S BR BS 15 of expressing himself concerning the matter so as to be understood, and that he knows the difference ge 16 between truth and falsity. 17 The Declaration of Raymond L. Sandelman states that he deposed John Denton, the 18 conservator of Edward Niderost, and the successor trustee of Mr. Niderost’s trust on December 29, 19 2020. Mr. Denton testified as to conversations he had with Mr. Niderost in October, September, 20 August, and February of 2020, as well as ten to twenty conversations he had with Mr. Niderost 21 during the period of February to August of 2020. Mr. Denton testified about conversations he had 22 > Mr. Williams’ declaration states that Mr. Niderost was conserved and then makes arguments concerning 23 capacity. The argument is inappropriate. 5) [9:49.5] Declarations limited to facts, not legal arguments: It is improper to include legal 24 arguments in a declaration. (E.g., “the interests of justice require ” or “the following matters constitute ‘good cause’ ...”) As noted by one court, this is “a sloppy practice which should stop ... [I]t 25 makes a mockery of the requirement that declarations be supported by statement made under penalty of perjury.” [Marriage of Heggie (2002) 99 CA4th 28, 30, 120 CR2d 707, 709, fn. 3] Nor do judges 26 appreciate legal argument in declarations as a ruse to avoid page limits in a memorandum of points and authorities. 27 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) 28 9 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF FNWARD NINERACT NOT RE TAVEN. DEATICET EAD CAMOTIARIG with Mr. Niderost about the status of the litigation and Mr. Niderost’s recollection of the events that are the subject matter of the litigation. He also answered questions by Mr. Lushanko about Mr. Niderost’s recollection of the events involving the transaction that Mr. Patterson has been sued over. Raymond Sandelman has estimated that over 60% of Mr. Denton’s six and half hours of deposition testimony related to what Mr. Niderost had told him. The conservatorship established for Mr. Niderost was based upon numerous statements Mr. Denton claimed were made to him by Mr. Niderost. Attachment 5(c)(2) of the Exhibit 1 to Raymond L. Sandelman’s declaration is a copy of portions of the petition where Mr. Denton relates the numerous conversations that he had with Mr. Niderost which were offered for the truth of the matter a. 10, asserted regarding the need for a conservatorship. As part of the petition for appointment of a ae <é Se rm 11 conservator, both Mr. Niderost and his wife executed written consents to the petition for appointment gs zQR ao 12 of the conservator. As a matter of law, Mr. Niderost and the proposed conservator both advocated ounos ae AR ageeo Zex 13 that Mr. Niderost had the capacity to execute a declaration on the substantive issue of his need for Bs 62 a8 zx on 14 a conservator. Probate Code section 1810 permits the use of a consent by a proposed conservatee Ea Za 5S aR 15 only “If the proposed conservatee has sufficient capacity at the time to form an intelligent BS ae 16 preference.” Now, Mr. Niderost’s guardian ad litem wants to prevent counsel from obtaining 17 evidence from Mr. Niderost about the underlying transactions, without any articulation that there 18 has been any change in facts since the presentation to the Court of substantive facts based upon Mr. 19 Niderost’s telling. Mr. Niderost wants to bar Mr. Cook from using “the greatest legal engine ever 20 invented for discovery of the truth.” (See People v. Brock, supra). 21 The declaration of Ronald Eugene Culley sets forth facts that Mr. Niderost is capable of 22 expressing himself concerning the matter so as to be understood, and that he knows the difference 23 between truth and falsity. Mr. Culley has had numerous conversations with Ed Niderost over the 24 past year and a half. The following conversations took place within the last two months: 25 (a) Mr. Niderost asked Mr. Culley if Mr. Culley had come across any new books about 26 Abraham Lincoln. Mr. Culley had previously provided him with books about the former president. 27 (b) Mr. Niderost advised Mr. Culley that he has spoken to his neighbor to correct a 28 misstatement that he (Mr. Niderost) had made to the neighbor about a jack Mr. Culley owns. Mr. 10 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF FNWARD NINERACT NAT RF TAVEN. DENTICET CAD CAROTIANTO Niderost acknowledged to me that he had incorrectly told the neighbor that the jack belongs to him (Mr. Niderost) and that he would correct his misstatement. (c) Mr. Niderost advised Mr. Culley that he likes to shop at Costco. He especially likes the ginger beer, health bars, and ice cream that he purchases there. (d) Mr. Niderost has told Mr. Culley that he can never repay Mr. Culley for the help that Mr. Culley has given him. (e) Mr. Niderost has told Mr. Culley that a neighbor named Nathan had not come over to his house to help him regarding a problem with a speaker. (f) Mr. Niderost advised Mr. Culley that he disapproves of his daughter’s appearance, Bo ag 10 especially her tattoo. <é ge os 11 (g) Mr. Niderost has told Mr. Culley about special shipping rates by carriers for shipping ze ss oR oF 12 model trains and accessories (Mr. Niderost buys and sells trains and accessories). GES 2a wee Zex Ze 13 (h) Mr. Niderost has told Mr. Culley that the PG & E bills at the property he refers to as the See ge E<¢ <4 14 Miller Mansion, are high. aa 5s gS 15 (i) Mr. Niderost has talked to Mr. Culley about a truck that he owns. gS ge 16 @) Mr. Niderost has asked Mr. Culley how a friend of his, named Karen Coffron, is doing. 17 5. Only Extreme Mental Disorders Disqualify A Person From Testifying 18 People v. Lewis (2001) 26 Cal.4th 334, 360-361 discusses cases holding that a showing of a 19 mental disorder is not by itself sufficient to disqualify a person from testifying: 20 Although Pridgon may have suffered from mental disorders and his testimony 21 was difficult to comprehend at times, the record does not support the claim that he was incapable of communicating so as to be understood, pursuant to Evidence Code 22 ection 701, subdivision (a)(1). (See People v. Anderson, supra, 25 Cal.4th at p. 574, 106 Cal.Rptr.2d 575, 22 P.3d 347 [no substantial evidence that witness, who 23 delusionally believed imaginary son was present during murder, lacked capabilities 24 under Evid. Code, § 701, subd. (a)(1) & (2) ]; People v. Jones, supra, 268 Cal.App.2d at pp. 165-166, 73 Cal.Rptr. 727 [prosecution witness characterized as a “mental 25 defective” by trial judge was not incompetent despite his conflicting and inconsistent 26 testimony]; People v. Scaggs (1957) 153 Cal.App.2d 339, 354, 314 P.2d 793 [record did not disclose that witness who was described as senile and of unsound mind was 27 incompetent as a matter of law].) Consistent with Pridgon's diagnosis of having the intellect of a seven year old, he expressed difficulty with complex questions and often 28 ll OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF FNWARD NINERACT NOT RE TAVEN. DEATIFET GAD CANOTIANE responded in incomplete, sometimes nonsensical, sentences. Mere difficulty in understanding a witness, however, does not disqualify that witness under Evidence Code section 701, subdivision (a). To the extent defendant contends Pridgon's responses were unbelievable—including his testimony that he “heard” blood and knew how money “sounds”—this was an issue of credibility for the jury and not relevant to the issue of Pridgon's competency. (See Adamson v. Department of Social Services (1988) 207 Cal.App.3d 14, 20, 254 Cal.Rptr. 667.) (underlining added) The last sentence in the above quotation shows that testimony such as a delusional belief that an imaginary son was present during a murder, senility and an unsound mind, responses in incomplete, sometimes nonsensical, sentences, and unbelievable testimony that the witness “heard” blood and knew how money “sounds”, are not a basis for disqualifying a witness from testifying. ao 10 This type of testimony gets evaluated based upon credibility. ae sé oe 11 There is of course a point where the learned trial judge should not allow testimony. People zen 62 12 v. Jackson (1969) 273 Cal.App.2d 248, 255, cited in the Moving Brief holds that the court should Coe gon Asas wea ZeL Ze 13 use great caution in permitting a witness who has a history of insane delusions from testifying relating 65 BSSs E< on za 14 to the subject of the insane delusions. be BS 15 a8 ge “It is universally recognized that the competency of a witness is to be 16 determined by the trial court in the exercise of its judicial discretion. (People v. Ives, supra, 17 Cal.2d at 476 [110 P.2d 408]; People v. Harrison, supra, 18 Cal.App. at 17 295 [123 P. 200]; see McCormick on Evidence, p. 123.) Manifestly, however, sound discretion demands the exercise of great caution in qualifying as competent a witness 18 who has a history of insane delusions relating to the very subject of inquiry in a case 19 in which the question is not simply whether or not an act was done but, rather, the manner in which it was done and in which testimony as to details may mean the 20 difference between conviction and acquittal.” (People v. McCaughan, supra, 49 21 Cal.2d at pp. 420, 421.) (underlining added) 22 No one in this litigation has contended that Mr. Niderost presently suffers from insane 23 delusions. 24 6. There Are No Foundational Facts Supporting Mr. Niderost’s Claim Of Undue Burden 25 The conclusory claim at Pages 5 and 6 of the Moving Brief that the deposition will be 26 unreasonably burdensome, lacks any foundational support. A claim of undue burden must be 27 supported by the objecting party. 28 M11 12 OPPOSITION BY WAYNE COOK INDIVIDUALLY AND AS TRUSTEE OF THE WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98 TO MOTION FOR PROTECTIVE ORDER THAT THE DEPOSITION OF RNWARN NIMEPACT NAT RE TAVEN. DENTIEST EAN CANIOTIAATO If discovery is being resisted on the ground that its production will result in an excessive burden, expense, or intrusion under CCP §2017.020(a), the judge must measure that burden, expense, or intrusion as part of the weighing process. Williams v. Superior Court (2017) 3CSth 531, 549-550, 220 CR3d 472. This requires proof and analysis of specific details. A party that is objecting to discovery on this basis must supply supporting evidence. An objection based on burden must be supported by evidence showing the amount of work required to furnish the requested discovery. 3 CSth at 550. (underlining added) Examples. \t is not sufficient for the party resisting discovery to alleged that, to answer a certain interrogatory, it would have to search the records of 78 of its branch offices; that party must estimate how many hours of labor would be required to accomplish the search. West Pico Furniture Co. v. Superior Court (1961) 56 C2d 407, 417, 15 CR 119. See Mead Reinsurance Co. v. Superior Court (1986) 188 CA3d 313, 232 CR 752 (uncontested factual showing that it would take 1083.33 hours of labor to comply with request for production of documents held sufficient to justify ao 10 discovery order as to limit scope of what had to be produced); Day v. Rosenthal ae sé (1985) 170 CA3d 1125, 112, 217 CR 89 (striking down interrogatories that would oe 11 take over 1600 hours of labor to answer). gs g225 og Eee 12 gZegn a) [=] has property in this county, or (c) [=] commencement of the conservatorehi ip in this county is in the best interest of the proposed conser reasons specified in Attachment 3a. vatee for the Petitioner (answer items (1) and (2) and check all other items that apply) (1) CJis [£1] is not @ creditor or an agent of a craditor of the (proposed) conservatee. @ CJ's [5€] Is not a debtor or an agent of a debtor of the (prop osed) conservatee. (3) [5€] is the proposed [] successor conservator. (4) [J Isthe (proposed) conservatee, (if this item is not checked, you must also compl (5) [=] Is the spouse ete item 3f) of the (proposed) conservatee. (You must also complete item 6.) (6) [J is the domestic partner or form jer dom \estic partne r of the (proposed) conservatee, (You must also complete item 7.) (7) [1] isa relative of the (proposed) conservz ates as (specify, relationship): (8) [5€] is an interested person or friend of th: 1@ (prcposed) conservatee. (9) [1 isa state or local public entity, officer, or emplo yee. (10}[~] Is the guardian of the Proposed conservates. (11-[[] is a bank [1 is another ‘entity authorized to conduct the busin ess of a trust company. (12)[] is a professi ional fiduciary within the meaning of Business and Professions Code se ction 6501(f) the Professional Fiduciaries Bureau of the who is licensed by De partment of Consumer Affairs. Petitior ner's item 1 on page 4 of the attached Professicnal license number is provided in affachment. You must also complete item 2 Fiduciz lary Attachment. (Use form GC-210(A-PF/GC-310(A-PF) on page 2of that form and item 3d below.) for this * Seo Item £b on page 4, GC-310 Rov. Jenuary 1, 2019] PETITION FOR APPOINTMENT OF PRO Page 2 of 8 BATE CONSERVATOR {Probate—Guardianships and Conservators hips) ICONSERVATORSHIP OF GC-310 (name): Edward F. Niderost ‘CASE NUMBER: (PROPOSED) CONSERVATEE 3. ¢. Proposed [—] successor conservator is (check all that apply) (1) [3€] anominee. (Affix nom lination as Attac hment 3c(1).) (2} [7] the spouse of the (proposed) conservate s. (You must also comp! ete item 6.) (3) [-] the domestic Pi artner or former dom estic partner of the (proposed) conservatee. {4} [77] a relative of the (proposed) (You must also complete item 7.) cons ervatee a8 (specify relationship): (5) [) abank. [J another entity ai thorized to conduct the busin (6) wd F4 ess of a trust company. @ nonprofit charitable corporatio in that meets the requirements of Probate Code section 2104, (7) a professional fiduciary, as defined in Business and concerning licensure or exemption Professi . ions Code section 6501(f). His or her state is Provided in item 1 on p: age 1 of the attac ment Attachment. (Use form GC-210(A-PF/GC-3 hed Professional. Fiduciary 10(A-PF) for thi is attachment.) (8) [J other (specity): [1 Enga gement and prior relations| hip with petiti oning professional fiduciary (complete Professional Fiduciaries Burea this item if petitioner is licensed by the Mu) (1) [] Statements of who engaged petitioner, or how petitioner was engai \géd fo file this Prior relationship petitioner had withthe patition, and a description of any (proposed) conservatee o1 r his or her family ‘on page 2 of the attached Profa: issional or friends, are provided in item 2 Fiduciary Attachment. (Use form GC-210(A-P attachment} F)/GC-310(A-PF) for this (2) [=]Apetition for appointment of a tempora Fy Conservator is filed with this petition. That who engaged petitioner, how petitioner petition contains Statements of was e1 ngaged to file this petitior in, and a descrip! petitioner had with the (proposed) conse tion of any prior.relationship rvat fee or his or her family and friends, Character and estimated value of the property of the estate (complete items (1) [7] or appointment of si juccessor conse (1) or (2) and (3), (4), rvater only, ‘complete Inventory‘and Appraisal and (5): Personal property: $ filed. by predecessor): » per Inventory and Appraisal filed in this proce (specify dates of filing of all inventories ard eding on apprai isals): (2) [] Estimated vatue of personal property: $ (3) Annual gross income from (a) real property: (6) personal property: (c) pensions: (d) wages: (e) public assistance benefits: () other: (4) Total of (1) or (2) and (3): (5) Real property: (a) [7] per inventor ry and Appraisal identified in item (1). (>) [—] estimated value. (1 Due diligence (complete this item if the (proposed) conservatee is not a petitioner): (1) Efforts to find the (p Foposed) conservatee's relatives or reasons why on Attachment 3f(1 it is not feasible to contact any of them are described (2) Statements of the (proposed) conservate e's preferences concerning the appointment the appointment of the Proposed (successor) of. any (successor conservator and ere contained on Attachment 34(2). ) Conservator or reasons why it is not feasible to ascertain )those preferences GC-310 [Rev, January 1, 2019] PETITION FOR APPOINTMENT OF PRO Page a of8 BATE CONSERVATOR (Probate—Guardianships and Conserva torships) |CONSERVATORSHIP OF GC-310 (name): Edward F. Niderost CASE NUMBER: (PROPOSED) CONSERVATEE 3. g. So far as known to petitioner, a conservato rship or equivalent Proceeding concerning the Proposed conservatee [35] has not [7] has been filed in another Jurisdiction, includin, 1g @ court of a federally-recognized Indian tribe with jurisdiction (see Prob. Code, § 2031(b)). (if you answered “has,” identify the jurisdiction and state the date the case was filed): (Proposed) conservatee a [J is Gq 75 isnot a patient in or on leave of absence from a state institution under the Department of tate Hospitals or the Califomia Depertment of jurisdiction of the California Developmental Services (specify state institution): b. ["] is receiving or entitled to receive [<1] is neither receiving nor entitled to receive benefits from the U.S, Dey partment of Veterans Affairs {estimate amount ‘of monthly benefi c [is [21 is not, so far as is known to petition ler, 2 memb erof t payable): a federally recognized Indian tribe. (if you answered "is," complete tems (1-4 ): (1) Name of tribe: (2) Location of tribe (if the tribe is located in more than one state, the state that is the tribe's ‘Principal location): (3) The proposed conservatee [) does (1) does not reside on tribal land.” (4) So far as known to petitioner, the Proposed conse rvatee {[_] owns [1 does not own property on tribal land. a. [3€] Proposed conservatee (initial appointment of‘conse rvator only) (1) [32] is an adult, (2) [_] will be an adult on the effective d: late of the order (date): (3) [_] isa martied minor. (4) [—] is aminor whose marriage has been dissolved, [] Vacancy in office of conservator (appointme nt of successor conse: val for only. A patition conservator after the death of a predeces for appointment ofalimited soris a atition for initial ay ppointment. (Prob. Code, There is a vacancy in the offi ice of conservator § 1860.5(a)(1).) of the [—_] person (] estate [=] specified in Attachme: nt 5b. [1 for the reasons specified below. * “Tribal land” Is land that is, with respectto a specific Indian tribe and the members of that tribe, 18 U.S.C. § 1151. “Indian country,” as defined in GC.310 [Rev, Jewary 1, 2019 PETITION FOR APPOINTMENT OF PROBATE Paged of 6 GONSERVATOR (Probate—Guardianships and Conservato rships) ICONSERVATORSHIP OF GC-310 (name): Edward F. Niderost CASE NUMBER: (PROPOSED) CONSERVATEE 5. ¢. (Proposed) conservatee requires a conservator and is (1) [7] unable to property provide for his or her personal needs for Physical health, food, Supporting facts are [—] specifi ied in Attachment Se(1) clothing, or shelter, [1 as follows: 2) Ge substantially unable to manage his or her financial resources or to res’ Supporting facts are [3] specified in Attachment 5c(2) ist fraud or undue influence. [1] as follows: GC-310 Rev, January 1, 2019] PETITION FOR APPOINTMENT OF PRO BATE CONSERVATOR Page Sota (Probate—Guardianships and Conserva torships) ICONSERVATORSHIP OF GC-310 {name}: Edward F. Niderost CASE NUMBER: (PROPOSED) CONSERVATEE 5. d. [3] (Proposed) conservatee voluntarily Fequ the appoi es ntmen ts t ofa ~[—] successor conservator. (Specify facts showing good cau: in Attachment 5(a).) . [3] Confidential Supplemental Informal tion (form GC-312) is filed with this petition. (Initial appoin All petitioners must file this form tment of conservator only. except banks and o} ther entities authorized to do business as f. (Proposed) conservatee a trust company.) [7] does 1420, Petitioner is aware of the requireme: x] does not havea developmental disability as define d in Probate Code section nts of Pr robate Code section 1827.5, (Specity the disability in Attachment 5A. nature and degree of thealleged 6. [] Petitioner or proposed [J successor Conservator is the spouse of the (prop iif this statement is true, you must answer a osed) conservatee. orb.) a. [—_] The (proposed) conservatee's Spouse is not a party to any action or Procee legal separation, dissolution of marriage, ding against the (proposed) conservatee for annu'ment, or adjudication of nullity of their marriage. b. Although the (proposed) conser tvatee's spous e is a party to an action or proceeding against for legal separation, dissolutior n, annulment, the (proposed) conservatee or adjudication of. nullity of their marriage, of these proceedings, itis in the best interest of the