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Raymond L. Sandelman SBN 078020 Superior Court of Califoenia
Attorney at Law County of Butte
196 Cohasset Road, Suite 225
Chico, CA 95926-2284 10/29/2021
(530) 343-5090 / (530) 343-5091 (FAX)
Email: Raymond@sandelmanlaw.com
Deputy
Attorney for Wayne A. Cook, individually Electronicaily FILED
and as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905
10 WAYNE A. COOK 1998 FAMILY REBUTTAL ARGUMENT BY WAYNE
11 TRUST DATED 12/29/98, COOK, INDIVIDUALLY AND AS TRUSTEE
Plaintiff,
12 v
13 Trial Date: 4/5/2021
EDWARD F. NIDEROST, et. al., Department: 1
14 Defendants.
Judge: Tamara Mosbarger
/ Date of Complaint: 4/22/2020
15
AND RELATED CROSS COMPLAINTS
16
/
17
18 1. Introduction
19 This Rebuttal Argument addresses the closing arguments made on behalf of John Denton in
20 his capacity as Conservator of the Estate of Edward Niderost, and as Successor Trustee of Edward
21 F. Niderost Revocable Living Trust, Dated November 8, 1988 (hereafter referred to as “Mr.
22 Denton’s Closing Argument”). This Rebuttal Argument is longer than Mr. Cook’s counsel would
23 have wished, but the reason for the length is that Mr. Denton’s Closing Argument improperly raises
24 new claims that were not articulated in his pleadings (See Section 2 of this Rebuttal Argument).
25 Other points in this Rebuttal Argument include:
26 Mr. Denton’s claim that Wayne Cook clearly committed perjury, lacks any merit and is an
27 improper argument (See Section 3 of this Rebuttal Argument).
28 Mr. Denton’s Closing Argument contains multiple inaccurate statements of the law and fact
1
REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE
(especially the (a) inaccurate claim that “The mere signing of escrow instructions by [a] mentally
impaired property owner constitute[s] financial abuse under Welf. & Inst. Code section 15610.30,
(b) Bounds v. Superior Court (2014) 229 Cal.App.4th 468, cited by Mr. Denton, is based on a
statute that was repealed seven years ago, (c) the inaccurate claim that the rule about not imposing
penalties is restricted to insurance cases, and (d) the inaccurate factual claim that Mr. Cook admitted
that the contract price was exorbitant which meant he knew the transaction was harmful to Mr.
Niderost.') (See Section 4 of this Rebuttal Argument)
Mr. Denton claimed that Mr. Niderost had capacity on April 20, 2020, and at least through
December 29, 2020, Mr. Denton treated Mr. Niderost as if he had capacity to contract (See Section
10 5 of this Rebuttal Argument).
Bs
Se 11 Mr. Denton has not supported his unconscionability affirmative defense or his purchase
Welfare & Institutions Code section 15610.30 subdivision (b) is not a form of financial elder abuse. It explains
the meaning of taking. “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained
27 property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains
the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder
28 or dependent adult.” The forms of financial elder abuse are set forth in Welfare & Institutions Code section 15610.30
subdivision (a) set forth at footnote 4 supra.
7
REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE
67 as part of the civil conspiracy between Mr. Patterson and Mr. Culley, but not Mr. Cook, and a
fraud claim regarding the Patterson transaction that did not involve Mr. Cook.
Mr. Denton’s Closing Argument does not claim that any of the terms in any of the
transactional documents or disclosures relevant to the sale of the Miller Mansion were confusing.
There are no claims of inconsistent statements, vagueness or ambiguity.
Mr. Denton’s Closing Argument at Page 24 lines 2 and 3 states that elder abuse occurred
because of taking of an elder who lacks capacity under Probate Code section 812, or is of unsound
mind, but not entirely without understanding. This is another new and different claim. There are
no allegations in Mr. Denton’s pleadings asserting these claims. The phrases “lacks capacity,”
10 “Probate Code section 812,” “unsound mind,” or “not entirely without understanding” are not
Bs
SE 11 mentioned in the pleadings. The showing needed to support a determination under Probate Code
<é
se
zs 12 section 812 is based on the factors specified in Probate Code section 811. Neither the Second
Se oR
a<
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Zo oFa 13 Amended Answer to the Complaint or the Second Amended Cross Complaint mentioned a single
aa Wa
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aS ae
a3 a
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as 14 factor in Probate Code section 811. To be clear: Mr. Denton’s pleadings do not mention the words
Zo
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og 15 “capacity, ne alertness, ow attention, ow arousal,” consciousness, oe orientation to time, we orientation
ea
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» ew » ow
Ba
Ba 16 to place, orientation person, orientation to situation, ow ability, ability to concentrate,”
17 “information processing,” “short-term memory,” “long-term memory,” “immediate recall,”
»
18 “ability to understand,” “ability to communicate with others, recognition of familiar objects,”
19 “recognition of familiar persons,” “ability to understand quantities,” “ability to appreciate
ow. »«
20 quantities, ability to reason using abstract concepts, ability to plan in one's own rational self-
oe
21 interest, ability to organize in one's own rational self-interest, » « ability to carry out actions in
» «
22 one's own rational self-interest, ability to reason logically, ”« severely disorganized thinking,”
23 “hallucinations,” “delusions,” “uncontrollable thoughts,” “repetitive thoughts,” “intrusive
24 thoughts,” “ability to modulate mood,” “ability to modulate affect,” “euphoria,” “anger,”
me
25 “anxiety,” “fear, »« panic,” “depression,” “hopelessness,” “despair,” “helplessness, apathy,” or
26 “indifference.”
27 Section 5 of this Rebuttal Argument explains that there was no evidence at trial of any of the
28 Probate Code section 811 factors.
8
REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE
The claims discussed in Mr. Denton’s Closing Argument are new and different from the
allegations in the Second Amended Complaint and the Second Amended Answer to the Complaint.
(c) Cancellation
(i) The Claim Pleaded
(B) Second Amended Cross Complaint at Paragraph 80: “Cross-Complainant incorporates
herein by reference paragraphs 1 -79 set forth hereinabove as if set forth fully herein.” Paragraph
81 alleges that “If the invalid Promissory Notes in favor of Dr. Fine and the Cook Trust, as well as
the corresponding Deeds of Trust, are left outstanding, Cross-Complainant will continue to suffer
loss and damages.” There are no substantive allegations in the Ninth Cause of Action at all.
10 Paragraph 1-79 plead elder abuse based upon undue influence because both Mr. Cook and Mr.
Bs 11 Culley executed pressure in the form of verbal remarks to Mr. Niderost that “the sale of the Miller
Sz
RE 11 immediately” and “Mr. Niderost and Mr. Culley repeatedly told Mr. Niderost that the terms of the
as
age
iz ae is taken of his situation. (Somes v. Skinner, 16 Mass. 358.)
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o< an
2 15 Crowther v. Rowlandson (1865) 27 Cal. 376, 379
eA
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5S
Ba 16 See also the discussion in Section 8 of this Rebuttal Argument that explains the essence of an
17 undue influence claim involves the use of excessive pressure to persuade one vulnerable to such
18 pressure (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131).
19 Wayne Cook’s Closing Argument cited 11A Cal. Jur. 3d Cancellation and Reformation § 1
20 for the principle that “The power of a court of equity to order a written instrument to be delivered
21 up and canceled is discretionary, and depends for its exercise on a showing of special circumstances
22 to justify resort to the court. Moreover, because the power to cancel a contract is extraordinary, it
23 should be exercised with great reluctance, unless in a clear case. A too-free use of the power would
24 render all business uncertain, and would ‘make the length of a chancellor's foot the measure of
25 individual rights.’” The authority cited by the text for this principle is Greenawalt v. Rogers (1907)
26 151 Cal. 630, 634-635. Mr. Denton’s Closing Argument would have the Court cancel the note and
27 deeds of trust based on claims of confusion and weakness of mind, without any supporting medical
28
2° Exhibit 1, Day 1 at 64: 14-17
21
REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE
evidence and ignoring the testimony of Wayne Cook, Ronald Culley, Bill Chance, and Mary
Thompson that Mr. Niderost had no mental deficits.
6. There Was No Evidence To Support A Claim Under Probate Code Section 812, Or A
Claim That Mr. Niderost Was Of Unsound Mind, But Not Entirely Without Understanding.
Section 2(a)(ii), and 2(b)(ii) of this Rebuttal Argument explains that Mr. Denton did not plead
that Mr. Niderost lacked capacity or that he was of unsound mind, but not entirely without
understanding. A determination of “unsound mind” must be made with the Probate Code section
811 factors (see the terms of the statute at footnote 19, supra). But, as explained in Section 5 supra,
no evidence was presented at trial as to a single factor in Probate Code section 811, and Mr. Denton
10 testified that Mr. Niderost had capacity on April 20, 2020 and treated him as having capacity through
Be
ae 11 December 29, 2021 (the credit card with limits of $20,000). This testimony shows that there was no
<é
os 12 merit to the claim that Mr. Niderost was of unsound mind at the time of the Miller Mansion
ae
ge
aa
ze
Beds 13 transaction.
14 7. Mr. Denton’s Discussion Of Civil Code Section 1575 Mentions
E< a The Factually Legally Irrelevant Presumption Of Undue Influence
2 15
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BO 16 At Page 25 lines 16 to 25 of Mr. Denton’s Closing Argument discussing the legally irrelevant
17 Civil Code section 1575(1) (See the discussion at Section 2(c)(ii) and 4(a) of this Rebuttal Argument,
18 supra) his counsel states that there is a presumption of undue influence when there is a special
19 relationship between the parties. But factually, there was no “special relationship” between (a)
20 Wayne Cook, individually or as trustee, and (b) Mr. Niderost, individually or as trustee. Therefore
21 the presumption is legally irrelevant to this action.
22 8. There Was No Evidence Supporting The Claimed Violation Of Civil Code Section 1575
23 Mr. Denton’s Closing Argument at Page 29 line 16 to Page 30 line 3 regarding Civil Code
24 section 1575 attempts to argue that undue influence can be shown without the essence of an undue
25 influence claim, viz. excessive pressure to persuade one vulnerable to such pressure. Odorizzi v.
26 Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 explains the essence of an undue influence
27 claim:
28 MIT
22
REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE
In essence undue influence involves the use of excessive pressure to persuade
one vulnerable to such pressure, pressure applied by a dominant subject to a servient
object. In combination, the elements of undue susceptibility in the servient person and
excessive pressure by the dominating person make the latter's influence undue, for it
results in the apparent will of the servient person being in fact the will of the dominant
person.
See also Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 451 discussing the Odorizzi
v. Bloomfield School Dist. holding. Olam v. Congress Mortg. Co. (N.D. Cal. 1999) 68 F.Supp.2d
1110, 1140-1141 holds that undue influence requires excessive strength/pressure:
Despite an ambiguous sentence or two in the cases, we conclude that under
California law a party cannot successfully invoke the doctrine of “undue influence” to
escape an apparent contract unless that party proves two things: (1) that she had a
10
lessened capacity to make a free contract and (2) that the other party applied its
Zs
Ss 11 excessive strength to her to secure her agreement. Odorizzi v. Bloomfield School Dist.,
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Raymond L. Sandelman SBN 078020 Superior Court of Califoenia Attorney at Law County of Butte 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 10/29/2021 (530) 343-5090 / (530) 343-5091 (FAX) Email: Raymond@sandelmanlaw.com Deputy Attorney for Wayne A. Cook, individually Electronicaily FILED and as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE WAYNE A. COOK, TRUSTEE OF THE NO.: 20CV00905 10 WAYNE A. COOK 1998 FAMILY REBUTTAL ARGUMENT BY WAYNE 11 TRUST DATED 12/29/98, COOK, INDIVIDUALLY AND AS TRUSTEE Plaintiff, 12 v 13 Trial Date: 4/5/2021 EDWARD F. NIDEROST, et. al., Department: 1 14 Defendants. Judge: Tamara Mosbarger / Date of Complaint: 4/22/2020 15 AND RELATED CROSS COMPLAINTS 16 / 17 18 1. Introduction 19 This Rebuttal Argument addresses the closing arguments made on behalf of John Denton in 20 his capacity as Conservator of the Estate of Edward Niderost, and as Successor Trustee of Edward 21 F. Niderost Revocable Living Trust, Dated November 8, 1988 (hereafter referred to as “Mr. 22 Denton’s Closing Argument”). This Rebuttal Argument is longer than Mr. Cook’s counsel would 23 have wished, but the reason for the length is that Mr. Denton’s Closing Argument improperly raises 24 new claims that were not articulated in his pleadings (See Section 2 of this Rebuttal Argument). 25 Other points in this Rebuttal Argument include: 26 Mr. Denton’s claim that Wayne Cook clearly committed perjury, lacks any merit and is an 27 improper argument (See Section 3 of this Rebuttal Argument). 28 Mr. Denton’s Closing Argument contains multiple inaccurate statements of the law and fact 1 REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE (especially the (a) inaccurate claim that “The mere signing of escrow instructions by [a] mentally impaired property owner constitute[s] financial abuse under Welf. & Inst. Code section 15610.30, (b) Bounds v. Superior Court (2014) 229 Cal.App.4th 468, cited by Mr. Denton, is based on a statute that was repealed seven years ago, (c) the inaccurate claim that the rule about not imposing penalties is restricted to insurance cases, and (d) the inaccurate factual claim that Mr. Cook admitted that the contract price was exorbitant which meant he knew the transaction was harmful to Mr. Niderost.') (See Section 4 of this Rebuttal Argument) Mr. Denton claimed that Mr. Niderost had capacity on April 20, 2020, and at least through December 29, 2020, Mr. Denton treated Mr. Niderost as if he had capacity to contract (See Section 10 5 of this Rebuttal Argument). Bs Se 11 Mr. Denton has not supported his unconscionability affirmative defense or his purchase Welfare & Institutions Code section 15610.30 subdivision (b) is not a form of financial elder abuse. It explains the meaning of taking. “A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained 27 property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder 28 or dependent adult.” The forms of financial elder abuse are set forth in Welfare & Institutions Code section 15610.30 subdivision (a) set forth at footnote 4 supra. 7 REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE 67 as part of the civil conspiracy between Mr. Patterson and Mr. Culley, but not Mr. Cook, and a fraud claim regarding the Patterson transaction that did not involve Mr. Cook. Mr. Denton’s Closing Argument does not claim that any of the terms in any of the transactional documents or disclosures relevant to the sale of the Miller Mansion were confusing. There are no claims of inconsistent statements, vagueness or ambiguity. Mr. Denton’s Closing Argument at Page 24 lines 2 and 3 states that elder abuse occurred because of taking of an elder who lacks capacity under Probate Code section 812, or is of unsound mind, but not entirely without understanding. This is another new and different claim. There are no allegations in Mr. Denton’s pleadings asserting these claims. The phrases “lacks capacity,” 10 “Probate Code section 812,” “unsound mind,” or “not entirely without understanding” are not Bs SE 11 mentioned in the pleadings. The showing needed to support a determination under Probate Code <é se zs 12 section 812 is based on the factors specified in Probate Code section 811. Neither the Second Se oR a< a4 Ba Zo oFa 13 Amended Answer to the Complaint or the Second Amended Cross Complaint mentioned a single aa Wa as aS ae a3 a Ho ee ES as 14 factor in Probate Code section 811. To be clear: Mr. Denton’s pleadings do not mention the words Zo 62 ge 2s om z< Sa og 15 “capacity, ne alertness, ow attention, ow arousal,” consciousness, oe orientation to time, we orientation ea oo » ew » ow Ba Ba 16 to place, orientation person, orientation to situation, ow ability, ability to concentrate,” 17 “information processing,” “short-term memory,” “long-term memory,” “immediate recall,” » 18 “ability to understand,” “ability to communicate with others, recognition of familiar objects,” 19 “recognition of familiar persons,” “ability to understand quantities,” “ability to appreciate ow. »« 20 quantities, ability to reason using abstract concepts, ability to plan in one's own rational self- oe 21 interest, ability to organize in one's own rational self-interest, » « ability to carry out actions in » « 22 one's own rational self-interest, ability to reason logically, ”« severely disorganized thinking,” 23 “hallucinations,” “delusions,” “uncontrollable thoughts,” “repetitive thoughts,” “intrusive 24 thoughts,” “ability to modulate mood,” “ability to modulate affect,” “euphoria,” “anger,” me 25 “anxiety,” “fear, »« panic,” “depression,” “hopelessness,” “despair,” “helplessness, apathy,” or 26 “indifference.” 27 Section 5 of this Rebuttal Argument explains that there was no evidence at trial of any of the 28 Probate Code section 811 factors. 8 REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE The claims discussed in Mr. Denton’s Closing Argument are new and different from the allegations in the Second Amended Complaint and the Second Amended Answer to the Complaint. (c) Cancellation (i) The Claim Pleaded (B) Second Amended Cross Complaint at Paragraph 80: “Cross-Complainant incorporates herein by reference paragraphs 1 -79 set forth hereinabove as if set forth fully herein.” Paragraph 81 alleges that “If the invalid Promissory Notes in favor of Dr. Fine and the Cook Trust, as well as the corresponding Deeds of Trust, are left outstanding, Cross-Complainant will continue to suffer loss and damages.” There are no substantive allegations in the Ninth Cause of Action at all. 10 Paragraph 1-79 plead elder abuse based upon undue influence because both Mr. Cook and Mr. Bs 11 Culley executed pressure in the form of verbal remarks to Mr. Niderost that “the sale of the Miller Sz RE 11 immediately” and “Mr. Niderost and Mr. Culley repeatedly told Mr. Niderost that the terms of the as age iz ae is taken of his situation. (Somes v. Skinner, 16 Mass. 358.) eg ZS E= 3S 14 SE ge aE o< an 2 15 Crowther v. Rowlandson (1865) 27 Cal. 376, 379 eA oe 5S Ba 16 See also the discussion in Section 8 of this Rebuttal Argument that explains the essence of an 17 undue influence claim involves the use of excessive pressure to persuade one vulnerable to such 18 pressure (Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131). 19 Wayne Cook’s Closing Argument cited 11A Cal. Jur. 3d Cancellation and Reformation § 1 20 for the principle that “The power of a court of equity to order a written instrument to be delivered 21 up and canceled is discretionary, and depends for its exercise on a showing of special circumstances 22 to justify resort to the court. Moreover, because the power to cancel a contract is extraordinary, it 23 should be exercised with great reluctance, unless in a clear case. A too-free use of the power would 24 render all business uncertain, and would ‘make the length of a chancellor's foot the measure of 25 individual rights.’” The authority cited by the text for this principle is Greenawalt v. Rogers (1907) 26 151 Cal. 630, 634-635. Mr. Denton’s Closing Argument would have the Court cancel the note and 27 deeds of trust based on claims of confusion and weakness of mind, without any supporting medical 28 2° Exhibit 1, Day 1 at 64: 14-17 21 REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE evidence and ignoring the testimony of Wayne Cook, Ronald Culley, Bill Chance, and Mary Thompson that Mr. Niderost had no mental deficits. 6. There Was No Evidence To Support A Claim Under Probate Code Section 812, Or A Claim That Mr. Niderost Was Of Unsound Mind, But Not Entirely Without Understanding. Section 2(a)(ii), and 2(b)(ii) of this Rebuttal Argument explains that Mr. Denton did not plead that Mr. Niderost lacked capacity or that he was of unsound mind, but not entirely without understanding. A determination of “unsound mind” must be made with the Probate Code section 811 factors (see the terms of the statute at footnote 19, supra). But, as explained in Section 5 supra, no evidence was presented at trial as to a single factor in Probate Code section 811, and Mr. Denton 10 testified that Mr. Niderost had capacity on April 20, 2020 and treated him as having capacity through Be ae 11 December 29, 2021 (the credit card with limits of $20,000). This testimony shows that there was no <é os 12 merit to the claim that Mr. Niderost was of unsound mind at the time of the Miller Mansion ae ge aa ze Beds 13 transaction. 14 7. Mr. Denton’s Discussion Of Civil Code Section 1575 Mentions E< a The Factually Legally Irrelevant Presumption Of Undue Influence 2 15 Bia BO 16 At Page 25 lines 16 to 25 of Mr. Denton’s Closing Argument discussing the legally irrelevant 17 Civil Code section 1575(1) (See the discussion at Section 2(c)(ii) and 4(a) of this Rebuttal Argument, 18 supra) his counsel states that there is a presumption of undue influence when there is a special 19 relationship between the parties. But factually, there was no “special relationship” between (a) 20 Wayne Cook, individually or as trustee, and (b) Mr. Niderost, individually or as trustee. Therefore 21 the presumption is legally irrelevant to this action. 22 8. There Was No Evidence Supporting The Claimed Violation Of Civil Code Section 1575 23 Mr. Denton’s Closing Argument at Page 29 line 16 to Page 30 line 3 regarding Civil Code 24 section 1575 attempts to argue that undue influence can be shown without the essence of an undue 25 influence claim, viz. excessive pressure to persuade one vulnerable to such pressure. Odorizzi v. 26 Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131 explains the essence of an undue influence 27 claim: 28 MIT 22 REBUTTAL ARGUMENT BY WAYNE COOK, INDIVIDUALLY AND AS TRUSTEE In essence undue influence involves the use of excessive pressure to persuade one vulnerable to such pressure, pressure applied by a dominant subject to a servient object. In combination, the elements of undue susceptibility in the servient person and excessive pressure by the dominating person make the latter's influence undue, for it results in the apparent will of the servient person being in fact the will of the dominant person. See also Keithley v. Civil Service Bd. (1970) 11 Cal.App.3d 443, 451 discussing the Odorizzi v. Bloomfield School Dist. holding. Olam v. Congress Mortg. Co. (N.D. Cal. 1999) 68 F.Supp.2d 1110, 1140-1141 holds that undue influence requires excessive strength/pressure: Despite an ambiguous sentence or two in the cases, we conclude that under California law a party cannot successfully invoke the doctrine of “undue influence” to escape an apparent contract unless that party proves two things: (1) that she had a 10 lessened capacity to make a free contract and (2) that the other party applied its Zs Ss 11 excessive strength to her to secure her agreement. Odorizzi v. Bloomfield School Dist.,