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Sara M. Knowles (SBN 216139) F 91W GM”
F
LELAND, MORRISSEY & KNOWLES LLP County of Bum
1660 Humboldt Road, Suite 6 I I
Chico, CA 95928 L 3/4/2021 L
Telephone: (530) 342-4500
E E
D D
Facsimile: (530) 345-6836
Attorney for John Denton, as Conservator for Edward F.
By HEE Clark
DESK-fl!
Niderost and as Successor Trustee of the Edward F. Niderost
Revocable Living Trust Dated November 8, 1998
SUPERIOR COURT OF CALIFORNIA,
COUNTY 0F BUTTE
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WAYNE A. COOK; TRUSTEE OF THE ) CASE NO. 20CV00905
11 WAYNE A. COOK 1998 FAMILY TRUST )
DATED 12/29/98 ) OPPOSITION TO DEMURRER T0
12 ) AMENDED ANSWER 0F JOHN
Plaintiff, ) DENTON, CONSERVATOR OF THE
13 ) ESTATE OF EDWARD F. NIDEROST
v. ) AND AS SUCCESSOR TRUSTEE 0F
14 ) THE EDWARD F. NIDEROST
EDWARD F. NIDEROST, INDIVIDUALLY ) REVOCABLE LIVING TRUST
15 AND AS TRUSTEE OF THE EDWARD F. )
NIDEROST REVOCABLE LIVING TRUST )
16 DATED NOVEMBER 8, 1998, DOES 1 )
THROUGH 10, ) Date: March 17, 2021
17 ) Time: 9:00 a.m.
Defendants. )
18 )
AND RELATED CROSS-ACTION )
19 )
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22 John Denton, as conservator for Edward F. Niderost and as Successor Trustee of the
23 Edward F. Niderost Revocable Living Trust Dated November 8, I998, hereby presents his
24 opposition to Plaintiffs Demurrer to the Amended Answer. Plaintiff previously submitted a
25 motion for a judgment on the pleadings. The court granted, in part that motion and overruled in
26 other aspects. This is Mr. Cook’s second attempt to challenge the pleadings.
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Opposition to Demurrer to Amended Answer of John Denton
Plaintiff now submits its demurrer as to the First Affirmative Defense of Unclean Hands,
the Third Affirmative Defense, the Third Affirmative Defense for Predatory Lending and the
Fourth Affirmative Defense for Elder Abuse. As to the Third Affirmative Defense for Predatory
Lending, Mr. Denton agrees to withdraw this affirmative defense.
I. The Court Must Allow Mr. Denton to Amend the Answer Regarding the
First Affirmative Defense as Mr. Cook Has Acted As An Unlicensed
Mortgage Broker.
Recent depositions have revealed that Mr. Cook was the originator of the loans to both
himself and Dr. Fine. Business and Professions Coe section 1011566.02 et seq provides that it is
unlawful for an individual to engage in business as a mortgage loan originator without obtaining
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and maintain a real estate license, or endorsement. As such, this action creates an unlawful
contract which serves as a basis for the First Affirmative Defense of Unclean Hands. The Court
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is requested to grant leave to amend so that Mr. Denton may insert these facts.
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II. The Court Must Overrule The Demurrer As To The Fourth Affirmative
15 Defense for Elder Abuse As Sufficient Facts Are Alleged
16 With respect to the claim that there are not facts which support a claim of elder abuse
17 pursuant to undue influence pled, that is not accurate. The First Amended Answer (“FAA”)
18 provides facts that Edward F. Niderost was 82 at the time of the transaction. (FAA, age 3, line 7.
19 page 2, lines 8-10.) The FAA also highlights that Mr. Niderost was alone as his wife was in
20 absent (she was in another country and unable to fly home due to the pandemic, and Mr.
21 Niderost was vulnerable to being taken advantage of (Id, at page 4, lines 22-23.)) The FAA also
22 indicates that Eugene Culley befriended Mr. Niderost while his spouse was absent and was
23 providing “caretaking” services. (Id..) The FAA further provides that Mr. Niderost’s cellular
24 phone and landline had stopped working while his spouse was absent. (Id. at page 5, lines 26-27
25 and page 5, lines 2-4.).) Mr. Culley held a position of trust and confidence with Mr. Niderost
26 and he assisted Mr. Niderost with the real estate transaction with Mr. Cook. (Id. at page 5, line
27 8.). The FAA asserts that Mr. Cook, with the assistance of Mr. Culley, induced Mr. Niderost to
28 Purchase the Miller Mansion. (Id. at page 5, lines 9-14.).
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Opposition to Demurrer to Amended Answer of John Denton
Odorizzz' v. Bloom/fed School District (1966) 246 Cal. App. 2d 123, 130 is a case cited by
Plaintiff. This case provides that undue influence is a type of persuasion which overcomes the
will without convincing the judgment. The hallmark of such persuasion is high pressure, a
pressure which works on mental, moral or emotion weakness. The FAA referenced that Mr.
Cook, with the assistance of Mr. Culley, induced Mr. Niderost to purchase the Miller Mansion.
Additional facts can be pied based on the depositions of Mr. Culley, Mr. Niderost and Mr. Cook.
In this case, Mr. Cook also arranged the notes payable to himself, and to Dr. Fine, acting
as an unlicensed broker. This fact is not pled in the FACC and leave is requested to add this, and
other facts supporting the misappropriation of personal property of an elder for a wrongful use.
10 If the Court is inclined to grant the demurrer, it is request that leave to amend be
11 provided.
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13 The Court is respectfully requested to allow Mr. Denton to amend the First Affirmative
14 Defense to include additional facts that have been recently discovered. Mr. Denton agrees to
15 withdraw the Third Affirmative Defense. The demurrer as to the Fourth Affirmative Defense
16 should be overruled, however if the court disagrees then leave to amend is requested.
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18 Respectfully submitted,
19 LELAND, MORRISSEY & KNOWLES LLP
Ava-«WU.
I
20 Dated: March 4. 2021 by
ara M. Knowles
21 Attorneys for John Denton, Conservator of the
Estate of Edward F. Niderost, Individually and as
22 Successor Trustee of the Edward F. Niderost
23 Revocable Living Trust Dated November 8, 1998
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Opposition to Demurrer to Amended Answer of John Denton
PROOF OF SERVICE
I, Sarah Vercruysse, declare:
I am a citizen of the United States and a resident of Butte County, State of California. I
am over the age of 18 years and not a party to the within action. My business address is 1660
Humboldt Road, Suite 6, Chico, CA 95928.
I am familiar with the practices of Leland, Morrissey & Knowles, LLP whereby each
document is placed in an envelope, the envelope is sealed, the appropriate postage is placed
thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is
collected and deposited in a U.S. mailbox at or before the close of each day’s business.
On the date shown below, I caused to be served: OPPOSITION TO DEMURRER TO
AMENDED ANSWER 0F JOHN BENTON, CONSERVATOR 0F THE ESTATE 0F
EDWARD F. NIDEROST AND AS SUCCESSOR TRUSTEE 0F THE EDWARD F.
NIDEROST REVOCABLE LIVING TRUST by:
10 g MAIL.- Placed in the United States man at Chico, California
11 Raymond L. Sandelman, Esq. Larry Lushanko, Esq.
196 Cohasset Road, Suite 225 1241 E. Mission Road
12
Chico, CA 95926-2284 Fallbrook, CA 92028
13 RagendQsandelmanlawcom officegQlushankolawcom
Gene Culley
14 21 85 Esplanade
Chico, CA 95928
15
ELECTRONIC SERVICE:
IIN
16 I caused a copy of the document(s) to be sent from e-
mail address svercruysse@chicolawyer.com to the persons at the e-rnail addresses
17 listed in the Service List. I did not receive, within a reasonable time afier the
transmission, any electronic message or other indication that the transmission was
18 unsuccessful.
19 PERSONAL SERVICE: Delivery by hand to the addressee.
20 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
21
Executed on March 4, 2021 , at Chico, California.
23
éarah Vercruysse g
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Proof of Service
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Sara M. Knowles (SBN 216139) F 91W GM” F LELAND, MORRISSEY & KNOWLES LLP County of Bum 1660 Humboldt Road, Suite 6 I I Chico, CA 95928 L 3/4/2021 L Telephone: (530) 342-4500 E E D D Facsimile: (530) 345-6836 Attorney for John Denton, as Conservator for Edward F. By HEE Clark DESK-fl! Niderost and as Successor Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 SUPERIOR COURT OF CALIFORNIA, COUNTY 0F BUTTE 10 WAYNE A. COOK; TRUSTEE OF THE ) CASE NO. 20CV00905 11 WAYNE A. COOK 1998 FAMILY TRUST ) DATED 12/29/98 ) OPPOSITION TO DEMURRER T0 12 ) AMENDED ANSWER 0F JOHN Plaintiff, ) DENTON, CONSERVATOR OF THE 13 ) ESTATE OF EDWARD F. NIDEROST v. ) AND AS SUCCESSOR TRUSTEE 0F 14 ) THE EDWARD F. NIDEROST EDWARD F. NIDEROST, INDIVIDUALLY ) REVOCABLE LIVING TRUST 15 AND AS TRUSTEE OF THE EDWARD F. ) NIDEROST REVOCABLE LIVING TRUST ) 16 DATED NOVEMBER 8, 1998, DOES 1 ) THROUGH 10, ) Date: March 17, 2021 17 ) Time: 9:00 a.m. Defendants. ) 18 ) AND RELATED CROSS-ACTION ) 19 ) 20 21 22 John Denton, as conservator for Edward F. Niderost and as Successor Trustee of the 23 Edward F. Niderost Revocable Living Trust Dated November 8, I998, hereby presents his 24 opposition to Plaintiffs Demurrer to the Amended Answer. Plaintiff previously submitted a 25 motion for a judgment on the pleadings. The court granted, in part that motion and overruled in 26 other aspects. This is Mr. Cook’s second attempt to challenge the pleadings. 27 28 l Opposition to Demurrer to Amended Answer of John Denton Plaintiff now submits its demurrer as to the First Affirmative Defense of Unclean Hands, the Third Affirmative Defense, the Third Affirmative Defense for Predatory Lending and the Fourth Affirmative Defense for Elder Abuse. As to the Third Affirmative Defense for Predatory Lending, Mr. Denton agrees to withdraw this affirmative defense. I. The Court Must Allow Mr. Denton to Amend the Answer Regarding the First Affirmative Defense as Mr. Cook Has Acted As An Unlicensed Mortgage Broker. Recent depositions have revealed that Mr. Cook was the originator of the loans to both himself and Dr. Fine. Business and Professions Coe section 1011566.02 et seq provides that it is unlawful for an individual to engage in business as a mortgage loan originator without obtaining 10 11 and maintain a real estate license, or endorsement. As such, this action creates an unlawful contract which serves as a basis for the First Affirmative Defense of Unclean Hands. The Court 12 is requested to grant leave to amend so that Mr. Denton may insert these facts. 13 14 II. The Court Must Overrule The Demurrer As To The Fourth Affirmative 15 Defense for Elder Abuse As Sufficient Facts Are Alleged 16 With respect to the claim that there are not facts which support a claim of elder abuse 17 pursuant to undue influence pled, that is not accurate. The First Amended Answer (“FAA”) 18 provides facts that Edward F. Niderost was 82 at the time of the transaction. (FAA, age 3, line 7. 19 page 2, lines 8-10.) The FAA also highlights that Mr. Niderost was alone as his wife was in 20 absent (she was in another country and unable to fly home due to the pandemic, and Mr. 21 Niderost was vulnerable to being taken advantage of (Id, at page 4, lines 22-23.)) The FAA also 22 indicates that Eugene Culley befriended Mr. Niderost while his spouse was absent and was 23 providing “caretaking” services. (Id..) The FAA further provides that Mr. Niderost’s cellular 24 phone and landline had stopped working while his spouse was absent. (Id. at page 5, lines 26-27 25 and page 5, lines 2-4.).) Mr. Culley held a position of trust and confidence with Mr. Niderost 26 and he assisted Mr. Niderost with the real estate transaction with Mr. Cook. (Id. at page 5, line 27 8.). The FAA asserts that Mr. Cook, with the assistance of Mr. Culley, induced Mr. Niderost to 28 Purchase the Miller Mansion. (Id. at page 5, lines 9-14.). 2 Opposition to Demurrer to Amended Answer of John Denton Odorizzz' v. Bloom/fed School District (1966) 246 Cal. App. 2d 123, 130 is a case cited by Plaintiff. This case provides that undue influence is a type of persuasion which overcomes the will without convincing the judgment. The hallmark of such persuasion is high pressure, a pressure which works on mental, moral or emotion weakness. The FAA referenced that Mr. Cook, with the assistance of Mr. Culley, induced Mr. Niderost to purchase the Miller Mansion. Additional facts can be pied based on the depositions of Mr. Culley, Mr. Niderost and Mr. Cook. In this case, Mr. Cook also arranged the notes payable to himself, and to Dr. Fine, acting as an unlicensed broker. This fact is not pled in the FACC and leave is requested to add this, and other facts supporting the misappropriation of personal property of an elder for a wrongful use. 10 If the Court is inclined to grant the demurrer, it is request that leave to amend be 11 provided. 12 13 The Court is respectfully requested to allow Mr. Denton to amend the First Affirmative 14 Defense to include additional facts that have been recently discovered. Mr. Denton agrees to 15 withdraw the Third Affirmative Defense. The demurrer as to the Fourth Affirmative Defense 16 should be overruled, however if the court disagrees then leave to amend is requested. 17 18 Respectfully submitted, 19 LELAND, MORRISSEY & KNOWLES LLP Ava-«WU. I 20 Dated: March 4. 2021 by ara M. Knowles 21 Attorneys for John Denton, Conservator of the Estate of Edward F. Niderost, Individually and as 22 Successor Trustee of the Edward F. Niderost 23 Revocable Living Trust Dated November 8, 1998 24 25 26 27 28 3 Opposition to Demurrer to Amended Answer of John Denton PROOF OF SERVICE I, Sarah Vercruysse, declare: I am a citizen of the United States and a resident of Butte County, State of California. I am over the age of 18 years and not a party to the within action. My business address is 1660 Humboldt Road, Suite 6, Chico, CA 95928. I am familiar with the practices of Leland, Morrissey & Knowles, LLP whereby each document is placed in an envelope, the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the office mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at or before the close of each day’s business. On the date shown below, I caused to be served: OPPOSITION TO DEMURRER TO AMENDED ANSWER 0F JOHN BENTON, CONSERVATOR 0F THE ESTATE 0F EDWARD F. NIDEROST AND AS SUCCESSOR TRUSTEE 0F THE EDWARD F. NIDEROST REVOCABLE LIVING TRUST by: 10 g MAIL.- Placed in the United States man at Chico, California 11 Raymond L. Sandelman, Esq. Larry Lushanko, Esq. 196 Cohasset Road, Suite 225 1241 E. Mission Road 12 Chico, CA 95926-2284 Fallbrook, CA 92028 13 RagendQsandelmanlawcom officegQlushankolawcom Gene Culley 14 21 85 Esplanade Chico, CA 95928 15 ELECTRONIC SERVICE: IIN 16 I caused a copy of the document(s) to be sent from e- mail address svercruysse@chicolawyer.com to the persons at the e-rnail addresses 17 listed in the Service List. I did not receive, within a reasonable time afier the transmission, any electronic message or other indication that the transmission was 18 unsuccessful. 19 PERSONAL SERVICE: Delivery by hand to the addressee. 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 21 Executed on March 4, 2021 , at Chico, California. 23 éarah Vercruysse g 24 26 27 Proof of Service