Motion-Secondary: THE ESTATE OF DEAN LAU BACCIOCCO

						
                                
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Jun-06-2003 3:38 pm

Case Number: PES-02-282999
Filing Date: Jun-05-2003 3:37
Juke Box: 001 Image: 00706106
MEMORANDUM OF POINTS AND AUTHORITIES

THE ESTATE OF DEAN LAU BACCIOCCO

001P00706106

Instructions:
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Robert I. Simon(SB#72671)
Attorney at Law

550 Montgomery St, Suite 550 San Francisco County Superior Court
San Francisco, CA. 9411
Telephone: (415) 434- 3608; Fax: (415) 781-6683 JUN 0 5/2003
Attorney for Respondent Judith Bacciocco GORDON PARK-LI, Clerk
oY Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Estate of } Case No.: PES-02-282999
DEAN BACCIOCCO, ) POINTS AND AUTHORITIES OF
) RESPONDENT JUDITH BACCIOCCO IN
) OPPOSITION TO PETITIONER ATHENA
) BACCIOCCO’S PETITION TO ALLOCATE
) RESPONSIBILITY FOR DEBT’S PAYABLE
} TO ESTATE AND SURVIVING
Deceased. } SPOUSE(Probate Code Section 11441)

Date: July 16, 2003
Time: 9:00 a.m.
Dept: Probate, Room 204

Decedent and Respondent Judith Bacciocco were married on 8/20/94 and separated on 8/19/98.
The marriage was never finally dissolved and decedent died on 2/9/02. There was no agreement, written
or oral, as to the allocation of responsibility for any debts of the decedent or any claims against his
estate. (Declaration of Judith Bacciocco, Page 1. Para. 1). Petitioner is seeking to have the following
debts allocated to Judith Bacciocco:

(1) Income taxes owed to the U.S. Treasury-amount unknown.

(2) Income taxes owed to the California Franchise Tax Board-amount unknown.

(3) S.F. Police Credit Union-$7,159.57

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(4) Car loan-$15,707.23.
(5) Funeral Expenses.

FUNERAL EXPENSES:

Probate Code Section 11446 provides that funeral expenses shall be charged against the estate of
the decedent and shall not be allocated to, or charged against the community share of, the surviving

spouse... Therefore, the funeral expenses cannot be allocated to Respondent Judith Bacciocco.

TAXES OWED ,CREDIT UNION DEBT and CAR LOAN:

Any taxes owed to the IRS or California Franchise Tax Board, the Credit Union debt and the Car
loan were incurred by decedent after separation (Declaration of Judith Bacciocco, Page 1-2, Para. 2,3
& 4). Probate Code Section 11444(b)(1) provides: Separate property debts of either spouse shall be
allocated to that spouse’s separate property assets, and the community debts shall be allocated to the
spouses’ community property assets. As the taxes owed, credit union debt and the car loan were incurred
after date of separation they are separate property debts and cannot be allocated to Judith Bacciocco but
must be allocated to decedent’s separate property assets. All the property listed in the Inventory and

Appraisal(Partial No. 1) is believed to be the separate property of the decedent.(Declaration of Judith

Bacciocco, Page 2, Para. 6).

ALLEGATIONS OF PARAGRAPH 4 OF THE PETITION:

None of the items referred to in paragraph 4 of the Petition are assets of the estate. Benefits
under the SF Retirement Pension Payout/Death Benefit, SFPD Widows & Orphans Aid Assn and
CIGNA Group Life Benefit are controlled by contract or statute. The Harley Davidson motorcycle was
in joint tenancy with decedent’s father and decedent’s father received that asset. Respondent has not
received anything from the SF Retirement Pension Payout/Death Benefit. In fact, Petitioner is claiming
the same benefits and both Petitioner and Respondent are claiming “death in the line of duty” benefits

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under the rules of the SF Retirement System which if successful would substitute for the $67,787.16

Retirement Pension Payout/Death Benefit.( Declaration of Judith Bacciocco, Page 2, Para.5)

DEBTS FOR COMMON NECESSARIES OF LIFE:

While not relevant to the discussion here because Probate Code Section 11444 sets out the way
in which debts are allocated, the debts listed by Petitioner are not for common necessaries of life. The
term “common necessaries of life” means essentials commonly required by all persons for the
sustenance of life...J.J. MacIntyre Co. v. Duren(1981) 118C.A.3 Supp. 16, 19. Certainly taxes are not
common necessaries of life. A car is not a common necessary of life. Ratzlaff'v. Portillo(1971)14 Cal.

App. 3d 1013, 1016. The use by decedent of the credit union funds is unknown to Respondent.

PETITION UNVERIFIED:

The Petition herein is unverified and should be denied on that basis.

WHEREFORE, Respondent prays that the Petition be denied.

Dated: June 5, 2003

Ae

Robert I. Simon,
Attorney for Respondent
Judith Bacciocco

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POINTS AND AUTHORITIES of JUDITH BACCIOCCO IN OPPOSITION TO... PETITION TO ALLOCATE RESPONSIBILITY FOR DEBTS