Preview
SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
20CV372731
Santa Clara — Civil
Electronically Filed
BRIGHTWORK LAW
by Superior Court of CA,
BRIAR HORN (SBN 330215) County of Santa Clara,
JAMIN HORN (SBN 289256) on 10/27/2021 1:21 PM
74 Woodland Rd. Reviewed By: V. Castane
Fairfax, CA 94930 Case #20CV372731
Phone: (415) 827-1960 Envelope: 7549154
Fax: (833) 924-0369
Email: briar@brightworklaw.com
Attorneys for Plaintiffs
ANGELO ASARO and ANTHONY ASARO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED CIVIL
ANGELO ASARO, ANTHONY ASARO, | Case No.: 20CV372731
Plaintiffs,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION FOR
REMOVAL AND REPLACEMENT
OF GUARDIAN AD LITEM
vs.
MICHAEL AUGUSTINE, and DOES 1 TO
25,
Defendants.
Date: Tuesday/Thursday (TBD)
Time: 9:00 AM
Dept: 2, Hon. Judge Drew Takaichi
I.
INTRODUCTION
Plaintiff ANGELO ASARO, and Plaintiffs’ counsel, BRIAR HORN and JAMIN HORN,
by the instant motion, seek the removal of LORNA J. DROPE from her position as guardian ad
litem for plaintiff ANTHONY ASARO, denial of Ms. Dropes fees and expenses, and the
appointment of a replacement guardian ad litem.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
1
V. CastanedaSOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
II.
FACTUAL BACKGROUND
A. Case Overview and Plaintiffs’ Counsel’s Request for Appointment of Guardian Ad
Litem for Anthony.
On September 16, 2020, pursuant to a contingency fee agreement, BrightWork Law and
its associated staff, including Briar Horn, Esq. and Jamin Horn, Esq. were retained to represent
two brothers, Anthony Asaro (hereafter “Anthony”) and Angelo Asaro (hereafter “Angelo”) in
their claims against Defendant Michael Augustine. (Decl. of A. Asaro, J 1; Decl. B. Horn § 1.)
The gravamen of Plaintiffs’ claim is that their elderly father, Jerome “Jerry” Asaro
(hereafter “Decedent), was unduly influenced by his substantially younger business partner,
Defendant Michael Augustine (hereafter “Defendant Augustine”), into making sweeping and
inexplicable changes to his estate plan. For the prior 30 years, Decedent’s estate plan had
provided for Angelo and Anthony, his only children. The 2020 changes made to Jerry’s estate
plan, were made in the wake of the Decedent having recently been rendered completely and
permanently blind by a botched surgery. (Decl. of A. Asaro, § 2-3)
The contested changes to Decedent’s estate plan disinherited both Anthony and Angela
and named Defendant Augustine, an individual unrelated to Decedent, as the sole successor
trustee and sole beneficiary to Decedent’s sizeable estate, estimated at $10 million. The estate
document at issue, the Fifth Amendment and Restatement of Trust, was prepared under very
unusual and highly suspicious circumstances, by an attorney that was previously unknown to the
Asaro family, and at a time when Defendant Augustine owed Decedent a fiduciary duty as the
Decedent’s caretaker. Eleven days after executing the estate document, on July 13, 2020,
Defendant Augustine drove Decedent from the care home where Decedent lived, to Decedent’s
prior residence, where the Decedent committed suicide by shooting himself with a gun kept on
the property. (Decl. of A. Asaro, § 4-9)
Decedent’s estate plan consists of two trusts: the Decedent Family Trust (hereafter
“Family Trust”), which holds the bulk of Decedent’s assets, and the Anthony Asaro Special
Needs Trust (hereafter “Special Needs Trust”), created to provide for Anthony (who receives
disability). The Special Needs Trust was not funded at the time of the Decedent’s death. (Decl.
of A. Asaro, § 10; Decl. B. Horn § 2)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
2SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
Since having been retained, BrightWork Law and its associated staff have diligently and
vociferously pursued plaintiffs’ claims (Decl. of A. Asaro, J 11):
¢ On October 26, 2020, suit was filed against Defendant Augustine, alleging seven causes
of action, including fraud and financial elder abuse.
¢ On March 4, 2021, Plaintiff's counsel, against opposition, successfully attached
$ 4,239,941.00 in real property.
¢ On May 6, 2021, Plaintiffs counsel, against opposition, prevailed in attaching up to
$1,993,851.00 in cash, held in ten different bank accounts.
Plaintiff's counsel has conducted sweeping discovery, including: (i) multiple depositions;
(ii) several rounds of written discovery; (iii) obtaining and conducting a detailed analysis of
thousands of pages of financial records. Plaintiffs’ counsel is presently conducting additional
third-party discovery, having issued more than thirteen separate subpoenas for business records.
Plaintiffs’ counsel plans to conduct at least an additional eight depositions prior to trial. (Decl. B.
Horn { 3-6)
Since the inception of this action, Anthony has been the target of Defendant Augustine’s
misconduct. Anthony suffers from cognitive disabilities, stemming from a traumatic brain injury
that he suffered in the mid-1990s. Throughout this litigation, Defendant Augustine has
repeatedly taken advantage of Anthony’s cognitive deficit, including but not limited to: (i)
having Anthony execute a declaration, against his own interest, and submitted in opposition to
the attachment of real property; (ii) orchestrating the mid-litigation hiring of attorney Nelson
McElmurry to “represent” Anthony by “assist” Anthony in dismissing his case; (iii) filing a
second purported declaration of Anthony, this one fraudulent and submitted in opposition to the
attachment of bank accounts; and (iv) falsely claiming to be the successor-trustee of the Special
Needs Trust. (Decl. of A. Asaro, §/ 12; Decl. B. Horn { 7)
To protect Anthony from Defendant Augustine’s egregious misconduct, Plaintiff's
counsel motioned for a preliminary injunction. On June 16, 2021, Hon. Judge Audra Ibarra
granted Plaintiff's motion, enjoining Defendant Augustine from continuing his theretofore
regular contact with Anthony, and preventing Defendant Augustine from hiring agents or
attorneys, such as Nelson McElmurry, to perform work on Anthony’s behalf. (Decl. B. Horn {| 8)}
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
3SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
On May 13, 2021, to further protect Anthony from the coercion and undue influence of
Defendant Augustine and his associates, Plaintiff's counsel filed an Application for Appointment
of Guardian Ad Litem (“GAL”). The application requested that this Court select a GAL of its
own choosing. The Probate Clerk improperly rejected this application for having failed to
identify the GAL. (Decl. B. Horn { 9)
On June 1, 2021, Plaintiffs counsel refiled the application for appointment of a GAL,
again seeking to have this Court select a guardian of its own choosing. On June 17, 2021, Hon.
Judge Drew Takaichi granted the application, selecting Lorna J. Drope, Esq. from the list of
GALs maintained by the court, to serve as GAL for Anthony. (Decl. B. Horn § 10)
B. Guardian Ad Litem Dropes’ Breaches.
On June 28, 2021, Plaintiff’s counsel emailed Ms. Drope to provide background
information on Anthony’s case. (Decl. of J. Horn, § 2.) On July 26, 2021, Ms. Drope requested a
video of Anthony taken by Plaintiffs’ counsel. The requested video was provided to Ms. Drope
that same day, July 26, 2021. (Decl. B. Horn § 11; Ex. A)
At the August 10, 2021, Case Management Conference (“CMC”) before the Hon. Judge
Drew Takaichi, without any prior communication related to the case or any issues, Ms. Drope
requested the removal of BrightWork Law’s attorneys Jamin Horn, Esq., and Briar Horn, Esq.
based on a mistaken belief that that Anthony was a beneficiary of Decedent’s estate plan and
Angelo was not, which in Ms. Drope’s estimation caused the two brothers to have adverse
interests to one another. (Decl. of J. Horn, § 3.) The Court made clear at the CMC, that that
removal of Anthony’s present counsel would require either the execution of a substitution of
counsel form or a motion by Ms. Drope. (/d.)
On August 17, 2021, in response to Ms. Drope’s statements at the August 10, 2021 case
management conference, Plaintiff's counsel Jamin Horn emailed Ms. Drope, particularly
identifying issues with the 3"! and 4 Amendments of the Decedent’s trusts in an effort to correct
Ms. Drope’s mistaken assumptions regarding the existence of a conflict. (Id. at { 4.)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
4SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
The memorandum provided to Ms. Drope included the statement that:
“No operative or potentially operative trust instrument names Anthony but not
Angelo a beneficiary to required trust distributions. Therefore, Anthony and
Angelo have identical interests in contesting the Fifth Amendment and
Restatement of Trust and reverting to the Third Amendment to Trust.” (/d. at Ex.
A)
Ms. Drope was informed that distribution to the Special Needs Trust were subject to the
sole and absolute discretion of Defendant Augustine and that Defendant Augustine appeared
exceedingly unlikely to make any meaningful distributions to the Special Needs Trust — a fact
borne out by Defendant Augustine’s deposition testimony. (/d.) Plaintiff's counsel also provided
citations to the California Rules of Professional Conduct Sections 1(b) and 1.7(a) relating to
conflicts of interests, that among other things, stated:
“ ..both Angelo and Anthony were informed that our firm would be undertaking
their joint representation. They believed that they were disinherited at the time,
and this belief has proven true. The joint representation was disclosed to Angelo
and Anthony, and they each signed a joint engagement letter. A copy of the e-
signed engagement letter, and hand signed engagement letter are attached for you
review.” [Emphasis added.] (/d. at Ex. A)
Within forty minutes of the above email having been sent, Ms. Drope’s paralegal Kristen
Avery requested copies of the 3" and 4'" Amendments to the Decedent’s trust. (Jd. at Ex. B.) The]
requested documents were sent that same day, with Ms. Avery confirming their receipt. (/d at
Ex. C; D.)
Approximately two weeks later, on September 1, 2021, again without Ms. Drope having
reached out to Plaintiff's counsel to discuss the facts of the case, the status of the case, or to
request any documents related to the case, or her assertion that a conflict prevented their
representation of Anthony, and in clear violation of this Court’s clear instruction and no
indication that Ms. Drope had contacted Anthony for whom she was serving as guardian, a letter
was received from James P. Cilley, Esq. on behalf of Ms. Drope that stated:
“This will advise you that our law firm has been retained by Lorna J. Drope, Esq.
in her capacity as Guardian ad Litem for Anthony Asaro. In her capacity as
Guardian ad Litem, Ms. Drope will now be solely responsible for pursuing
Anthony Asaro's claims in connection with the above captioned matter.”
[Emphasis added.] (/d. at Ex. F; Decl. of B. Horn § 12, Ex. B; C)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
5SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
The next day, on September 2, 2021, Plaintiff's counsel Briar Horn responded to Mr.
Cilley’s communication, informing him that: (i) the adverse interest/conflict issue raised by Ms.
Drope was without merit; (ii) Ms. Drope did not possess the authority to fire BrightWork Law,
(iii) Ms. Drope’s attempted firing of BrightWork Law was a violation of this Courts clear
instruction pertaining to the process for removal and/or substitution of present counsel; (iv) Ms.
Drope’s attempt to use her position as guardian ad litem to hire herself as counsel for Anthony
was an egregious conflict of interest; and (v) that if the firing of BrightWork Law was not
immediately rescinded that BrightWork Law would be reporting Ms. Drope to the California
State Bar, filing a motion for her removal as guardian ad litem, and bringing a civil suit against
Ms. Drope. (Decl. of B. Horn 13; Ex. D)
On September 3, 2021, Mr. Cilley sent the following communication, claiming that his
prior communication was merely a request for documents:
“We have simply requested files that you have agreed to produce. We have not
prepared and submitted a Substitution of Attorney specifically because of the
Court’s comments at the recent Case Management Conference.” (Jd. §] 14; Ex. E;
F)
On October 5, 2021, Plaintiff's counsel Briar Horn, emailed Ms. Drope a case update that]
requested Ms. Drope’s input on pressing strategic decisions related to Anthony’s case. The email
regarded a draft communication to opposing counsel, that included a proposed agreement
whereby BrightWork Law would waive all attorney fees and costs as to transfers from the
Family Trust to the Special Needs Trust effectuated within 60 days, more particularly stating the
following:
“In a separate but related matter, it has become apparent to counsel that the present
litigation and BrightWork Law legal fees are likely serving as a convenient excuse for
why Mr. Augustine has failed to meaningfully fund the Asaro Needs Trust. It being the
intent of counsel to ensure that the Asaro Needs Trust is properly funded in a timely
manner, Briar Horn, Esq., Jamin Horn, Esq. and BrightWork Law hereby agree to waive
any and all legal fees and costs as to any transfer of funds from the Jerry Family Trust (ug
to 50% of the net estate thereof) to Sam Asaro, as trustee of the Asaro Needs Trust, made
within 60 days of the date of this email. Further, counsel will stipulate and/or take any
actions necessary to free assets from attachment so that the above contemplated transfer
can be effectuated should Mr. Augustine choose to agree to such a transfer.” (/d. J 15;
Ex. G; H)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
6SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
Inexplicably, Ms. Drope failed to respond to counsels’ email or BrightWork Law’s
proposed offer to waive fees and costs which pending review and response by a responsible
guardian ad litem can still be made to the opposing party and could amount to over $1 million in
savings to Anthony. (/d. § 16)
On October 8, 2021, Plaintiffs counsel Briar Horn, forwarded to Ms. Drope an email
chain between himself and Andrew Calvert, Esq. Sam Asaro’s attorney, regarding issues
surrounding Sam Asaro’s management of the Special Needs Trust. (/d. § 24; Ex. J) Sam Asaro is
the Decedent’s brother and Anthony and Angelo’s uncle. Sam Asaro is the trustee of the Special
Needs Trust. (/d. J 17)
For unknown reasons, Sam Asaro appears to have sided with Defendant Augustine, filing}
a declaration in opposition to the attachment of real property at the outset of this litigation, an act}
that ran directly counter to Anthony’s interests and was undertaken while Sam was trustee of the
unfunded Special Needs Trust to which Anthony is the sole beneficiary. Briar Horn’s October 8,
2021 email to Mr. Andrew Calvert was made in the wake of Sam Asaro’s October 1, 2021
deposition, at which a number of additional issues regarding Sam Asaro’s conduct as trustee
were brought to light. (/d. § 17, 20)
At his deposition, Sam Asaro claimed that despite having regular contact with Defendant
Augustine —including discussions with Defendant Augustine in preparation for his own
deposition, and discussion regarding the Special Needs Trust— that he had no knowledge of the
fact that Defendant Augustine had for months been claiming to be the trustee of the Special
Needs Trust. (/d. ¥ 19; Ex. I at p. 9, 44-45) Sam also testified that Defendant Augustine did not
inform him of the existence of the sham Special Needs Trust bank account that had been created
and “funded” with $80,000 by Defendant Augustine during the time Defendant Augustine was
improperly claiming to be the trustee. (/d. § 19; Ex. I at p. 57-58).
Sam Asaro further testified that he first took action as trustee of the Special Needs Trust
just one month prior to his October 1, 2021 deposition, fully 310 days after the filing of this
action and 415 days after the Decedents death. (/d. {] 20; Ex. Lat p. 50, 52-53). Sam also revealed
that this action, taken within weeks of his scheduled deposition, amounted to a single request tha’
Defendant Augustine transfer a $16,000 to the Special Needs Trust (less than one-quarter of the
funds Defendant Augustine placed into the sham Chase account for Anthony and less than one-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
7SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
half of one percent of the estate assets ordered attached in this action. (/d. 21; Ex. I at p. 50, 52-
53).
The October 8, 2021 email with Mr. Calvert, that I forwarded to Ms. Drope, sought to
apprise Sam Asaro of his fiduciary duties to Anthony and to provide Sam with the documents
and information necessary to demand return of the funds held in the sham Chase account. (/d. §]
24; Ex. J) The email included documents that demonstrated that Defendant Augustine had: (i) for
months been falsely claiming to be the trustee of the Special Needs Trust; and (ii) the bank
records showing that Defendant Augustine created and funded the sham Chase Special Needs
Trust bank account with $80,000 during the time he was falsely claiming -to Plaintiffs and this
Court- that he was the acting trustee of the Special Needs Trust. (/d. § 22) This email was
provided to Sam Asaro despite Sam having inexplicably claimed at his October 1, 2021
deposition that, should the sham Chase account created by Defendant Augustine be shown to
exist, he [Sam] would not request the funds from Defendant Augustine. (/d. {| 23; Ex. I at p. 58)
Also on October 8, 2021, Plaintiff's counsel Briar Horn, emailed Ms. Drope a lengthy
(over five-thousand-word) update on counsels’ progress, including the recent deposition of Sam
Asaro, third party discovery, and requesting that Ms. Drope’s provide her input on strategic case
decisions —including responding to Briar Horn’s prior emails. (/d. § 25) The content of the
October 8, 2021 communication and a number of prior communications with Ms. Drope are
protected attorney client communication and are subject to attorney work product protection, for
this reason they the full contents are not submitted here but can be submitted to this Court in
camera upon request. (/d. 26)
Plaintiff's October 8, 2021 communication with Ms. Drope also raised the serious issue
with Ms. Drope’s conduct broght to light at Sam Asaro’s October 1, 2021 deposition, namely
that Ms. Drope had informed Sam Asaro that BrightWork Law had a conflict in representing
Anthony. Communicating this type of internal and highly sensitive information to Sam Asaro, an|
individual that filed a declaration in opposition to the attachment of real property and has been in
direct and continued contact with Defendant Augustine, amounted to sabotage of Anthony’s
case. (Id. § 27)
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
8SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
Plaintiff's counsel Briar Horn, raised this concern with Ms. Drope’s conduct in the
October 8, 2021 email, stating:
“Finally, during his deposition, Sam Asaro claimed that you informed him that
BrightWork Law might have a conflict of interest in representing both Angelo and
Anthony. You have raised this concern but have yet to provide a firm basis for
this assertion. As you are aware, BrightWork Law will be representing Anthony
Asaro until such time as you bring a properly noticed motion seeking our
removal. While we may not agree on this specific point, there is absolutely no
strategic benefit to your having informed Sam Asaro of the issue. Sam Asaro who
prepared for his deposition by discussing it with Mr. Augustine for some reason
has been a fairly uncooperative and hostile witness. It seems inappropriate to
share any conflict concerns with him. Rather, these concerns should be addressed
to us and/or the court. While the damage done from
this unnecessary disclosure is behind us, it is my hope that moving forward we
can present a unified front or at least limit communications to those that seem to
have a close relationship with the defendant in this matter as this will surely result
in a far better outcome to this litigation.” (/d. | 27)
On October 19, 2021, 18 days after Briar Horn’s October 1, 2021 email was sent to Ms.
Drope, and 11 days after Briar Horn’s two October 8, 2021 emails were sent to Ms. Drope, she
finally responded, stating:
“T apologize for the delayed response. As you know, I have engaged Temmerman,
Cilley, & Kohlmann in this matter. I forwarded your correspondence to Mr. Cilley
and thought he had responded. I learned yesterday he had not yet responded. He
should be responding before the end of the week. Note - I was unaware that Sam
Asaro was to be deposed. Please be sure I receive notice of any further
depositions, as well as any other discovery matters.”! (/d. {| 28; Ex. K)
On October 20, 2021, Sam Asaro, emboldened by Ms. Drope’s inappropriate disclosure,
responded to Briar Horn’s October 8, 2021 email with a letter, dated October 18, 2021, that
stated: (i) Anthony was not in need of legal services, and (ii) that BrightWork Law was fired —
such purported attempts to act on Anthony’s behalf being the reason BrightWork Law sought
the appointment of a guardian ad litem for their client, Anthony, in the first insance.
' It should be noted that the deposition of Sam Asaro was outlined as an upcoming discovery action on the
Plaintiff's Case Management Statement filed 8/9/21 and was discussed at the CMC at which Lorna Drope was in
attendance.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
9SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
Sam Asaro’s October 20, 2021 letter included what purported to be the hand-written note
of Anthony, evidencing that Anthony was once again the target of undue influence and coercion.
(Decl. of B. Horn 29; Ex. L)
The next day, on October 21, 2021, Mr. Cilley sent a communication to BrightWork Law
stating that BrightWork Law had been “repeatedly” fired, and that BrightWork and its staff
should cease direct communication with Ms. Drope, cease any and all work on behalf of
Anthony, and raising issue with BrightWork Law’s fee agreement with Anthony:
“Dear Gentlemen: As you know, our law firm has been retained by Lorna J.
Drape, Esq. ("GAL") in her capacity as Guardian ad Litem for Anthony Asaro. As
previously requested, please direct all future correspondence related to my client
as Guardian ad Litem for Anthony Asaro to my attention. In light of your recent
emails to GAL, which you failed to copy me on, it is our instruction that no
further depositions or steps are taken in the pending civil litigation. You will not
be compensated by GAL for any time spent deposing parties nor preparing any
further pleadings. Your fee agreement, even if valid, permits GAL to terminate
your services. She has done so, repeatedly, and you have failed to comply. We
will be pursuing a motion to, among other things, have your firm disqualified.
Further, as requested in our September 1, 2021 letter, please provide me with all
of the estate planning documents for decedent Jerry, formerly Jerome Asaro. Note
that I have still not received a copy of the Third or Fourth Amendments to the
Jerry Family Trust. (Decl. of B. Horn § 30; Ex. M; N)
The timing and content of Sam Asaro’s purported October 18, 2021 firing of BrightWork
Law, Ms. Drope’s October 19, 2021 email communication, and Mr. Cilley’s October 21, 2021
letter, lead to the reasonable inference that these three individuals are conspiring to fire
BrightWork Law in direct contravention of this Courts instructions regarding removal of present
counsel. (Decl. of B. Horn § 30)
Further, Mr. Cilley’s claim, that he has not been provided the Third or Fourth
Amendments of Trust, is demonstrably false. These documents were provided to Ms. Drope’s
paralegal, Kristen Avery on August 17, 2021, with Ms. Avery confirming receipt in writing.
(Decl. of J. Horn, Ex. C; D.). The documents were then subsequently provided to Mr. Cilley
directly on September 9, 2021, along with the entire case file, pursuant Mr. Cilley’s September 1
2021 request (Decl. of B. Horn § 31; Ex. O).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
10SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
Therefore, in addition to a continued failure to provide any guidance on pertinent case
matters, including but not limited to the proposed offer to waive all fees and costs as to transfers
to the Special Needs trust, it is clear from that despite having had the requested documents for
months Ms. Drope and her attorney, Mr. Cilley, have failed to review the two most
pertinent documents related to Anthony’s case.
It can only be inferred from Mr. Cilley’s most recent communication that Ms. Drope is
again pursuing the goal stated in Mr. Cilley’s initial, September 1, 2021 communication: for Ms.
Drope to replace BrightWork Law as Anthony’s counsel, such that “Ms. Drope will now be
solely responsible for pursuing Anthony Asaro's claims.”
Finally, Mr. Cilley’s demand, that BrightWork Law cease work on behalf of Anthony,
directly undermines Anthony’s interests, especially given that Ms. Drope and Mr. Cilley have
been made aware that Plaintiff's counsel is currently in the midst third party discovery and
anticipates at least one motion to compel (which is time barred) will need to be filed in the
coming days.
Il.
ARGUMENTS
A. The Court has the inherent power to remove and/or replace a guardian ad litem.
It is a long-held principle that “the appointment of a guardian ad litem is subject to
ongoing court supervision and the removal of a guardian ad litem, who functions partly as an
officer of the court, is a matter within the court's control to be exercised as part of its inherent
powers. In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1148-1149, 33 Cal.Rptr.2d
46; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13, 118 Cal.Rptr. 21, 529 P.2d 53; Estate of
Hathaway (1896) 111 Cal. 270, 271, 43 P. 754. A motion for removal and/or replacement of a
guardian ad litem can be brought by any party to the action, or by the Court sua sponte.
M
M
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
11SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
B. Removal of a guardian ad litem is warranted where the guardian fails to fulfill their
duty and/or takes actions that are inimical to the legitimate interests of the
incompetent person.
The role of the guardian ad litem is to protect the incompetent person's rights in the
action, to control the litigation, to compromise or settle, to direct the procedural steps, and make
stipulations. (Jn re Charles T. (2002) 102 Cal.App.4th 869, 875-876, 125 Cal.Rptr.2d 868.)
The guardian ad litem's powers are subject to both the fiduciary duties owed to the
incompetent person and the requirement that court approval be obtained for certain acts. (/.W. v.
Superior Court (1993) 17 Cal.App.4th 958, 965, 22 Cal.Rptr.2d 527.) “Like any other officer of
the court (receiver, conservator, referee, etc.), a guardian ad litem is subject to court supervision.
Should a guardian ad litem take an action inimical to the legitimate interests of the [incompetent
person], the court retains the supervisory authority to rescind or modify the action
taken.” Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502, 76
Cal.Rptr.2d 95.
C. Lorna J. Drope, Esq. has failed to fulfill her fiduciary duty to Anthony, having
repeatedly taken actions that are inimical to Anthony’s legitimate interests,
necessitating her removal and replacement.
When BrightWork Law sought the appointment of a guardian ad litem for its client, Anthony, it
did so to protect Anthony’s interests. The application was submitted in the midst of a concerted
effort by Defendant Augustine to get Anthony to drop his meritorious lawsuit. Unfortunately,
Ms. Drope has failed to achieve her purpose as GAL, having taken the following actions inimical
to Anthony’s legitimate interests:
(i) Ms. Drope and her counsel, James Cilley, Esq., have failed to perform even the
most cursory review of the documents issue in Anthony’s case, including most
importantly the Third, Fourth, and Fifth Amendment and/or restatement of Trust,
and the declaration of Sam Asaro filed in opposition to attachment of real
property (which would have made clear that divulging sensitive information to
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
12SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
Sam Asaro stood a high probability of causing irreparably harming Anthony’s
case);
Ms. Drope has repeatedly demonstrated inexcusably delay in responding to
counsels pressing pleas for guidance regarding Anthony’s case. To date, Ms.
Drope, despite having been appointed since June 1, 2021 and having received
numerous communications from Plaintiffs counsel, has failed provided any
guidance whatsoever regarding Anthony’s case;
Ms. Drope has focused her entire efforts as GAL on repeatedly raising the
nebulous and non-meritorious claim that Anthony and Angelo (two disinherited
brothers) somehow have adverse interest to one another regarding recapturing
their stolen birthright from Defendant Augustine and that this would categorically
precludes BrightWork Law from continuing its successful representation of
Anthony;
Ms. Drope has hired law firm Temmerman, Cilley & Kohlman LLP to represent
her in her “capacity as guardian ad litem,” said firm also failing to undertake even
the most cursory review of the documents or provide any guidance regarding
Anthony’s case other than to stop all work;
Ms. Drope now refuses to communicate directly with plaintiffs’ counsel, directing}
all communication to her attorney, Mr. Cilley — who provides no guidance
responsive to Plaintiff's counsels repeated requests for Ms. Drope’s strategic
guidance on pressing case matters;
Ms. Drope has failed to respond to counsel’s request for a meeting with Anthony
and is believed to have never met with Anthony;
Ms. Drope has begun actively sabotaging Anthony’s case, informing Sam Asaro,
and therefore Defendant Augustine, of her adversity/conflict theories; a blunder
that served absolutely no strategic purpose whatsoever and irreparably harmed
Anthony’s case (as evidenced by Sam Asaro’s recent purported firing of
BrightWork Law Anthony’s hand-written letter, evidencing that Ms. Drope’s
blunder has again made Anthony a target of undue influence and coercion).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
13SCO mM NDA BR WN He
CmrIaAwA FB wWwHN
NN YN NY NNN DY
cd AUK YW NE S
(viii) Ms. Drope has now demanded that BrightWork Law cease taking any action to
further Anthony’s interests in this case, and this demand was made when Ms.
Drope had been informed of: (i) the possible need to file a time barred motion to
compel, (ii) substantial pending third party discovery;
(ix) | The timing and content of Ms. Drope and Sam Asaro’s communications indicate
that Ms. Drope and Sam Asaro are working in a concerted effort to fire
BrightWork Law in violation of this Courts instructions;
(x) Ms. Drope appears to have undertaken the above course of action with the goal of]
using her position as Anthony’s GAL to hire herself as Anthony’s counsel. Ms.
Drope’s attempts to effectuate this direct conflict lays bare her true motivation is
to reap the reward of Anthony’s exceptionally strong and highly developed multi-
million-dollar case at the expense of both Anthony and BrightWork Law.
BrightWork Law and its attorneys have invested substantial time, energy, and resources
pursuing Anthony’s claims. To date, the litigation has been marked by only success, with the
Court repeatedly finding that Anthony is likely to prevail on his claims against Defendant
Augustine.
Ms. Drope’s highly unusual mid-litigation attempts to fire BrightWork Law, such that sha
would be “solely responsible for pursuing Anthony Asaro's claims” raise serious public policy
concerns. If such GAL conduct were to be sanctioned by this Court, it would invariably dissuade
many an attorney from requesting a GAL be appointed for their client, as they could find
themselves without a job and, as in this case here, having their fee agreements called into
question by an opportunistic GAL.
On August 10, 2021, Ms. Drope was informed by this Court that removal of present
counsel would require a motion — a statement made by this Court in accordance with California
law relating to the powers of a guardian ad litem. It has now been over 77 days and no motion
for removal has been forthcoming. This is likely due to Ms. Drope surmising that such a motion
would be summarily denied, both in light of her demonstrated incompetence as GAL and her
transparent attempts to effectuate her conflicted self-hiring as counsel. Instead, Ms. Drope has
opted to operate outside of this Courts supervision and California law, repeatedly violating this
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
14SOU mM NDA BR WN
CmirdIAwnw FB wN
bony NY NNN DY
ec A AK YN ES
Courts clear instructions by repeatedly and unilaterally attempting to effectuate the firing of
BrightWork Law.
Ms. Drope is an officer of this Court, subject to this Courts oversight. This Court has inherent
authority to remove Ms. Drope. Given Ms. Drope’s repeated action inimical to the legitimate
interests of Anthony, this Court must exercise that authority immediatley removing Ms. Drope
and appointing a replacement GAL who is better able to serve Anthony’s most pressing needs.
VI.
CONCLUSION
For the foregoing reason, Plaintiff's counsel respectfully requests that this Court grant the|
instant motion and enter an order: (i) removing Lorna J. Drope as Anthony’s guardian ad litem;
(ii) denying of Ms. Dropes's fees and expenses; (iii) appointing a replacement guardian ad litem
of the Courts own choosing.
Dated: October 27, 2021
BRIGHTWORK LAW
Briar 2 Attorifey for Plaintiffs
ANGELO ASARO and ANTHONY
ASARO
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S
MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM
15
Preview
SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES 20CV372731 Santa Clara — Civil Electronically Filed BRIGHTWORK LAW by Superior Court of CA, BRIAR HORN (SBN 330215) County of Santa Clara, JAMIN HORN (SBN 289256) on 10/27/2021 1:21 PM 74 Woodland Rd. Reviewed By: V. Castane Fairfax, CA 94930 Case #20CV372731 Phone: (415) 827-1960 Envelope: 7549154 Fax: (833) 924-0369 Email: briar@brightworklaw.com Attorneys for Plaintiffs ANGELO ASARO and ANTHONY ASARO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED CIVIL ANGELO ASARO, ANTHONY ASARO, | Case No.: 20CV372731 Plaintiffs, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM vs. MICHAEL AUGUSTINE, and DOES 1 TO 25, Defendants. Date: Tuesday/Thursday (TBD) Time: 9:00 AM Dept: 2, Hon. Judge Drew Takaichi I. INTRODUCTION Plaintiff ANGELO ASARO, and Plaintiffs’ counsel, BRIAR HORN and JAMIN HORN, by the instant motion, seek the removal of LORNA J. DROPE from her position as guardian ad litem for plaintiff ANTHONY ASARO, denial of Ms. Dropes fees and expenses, and the appointment of a replacement guardian ad litem. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 1 V. CastanedaSOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES II. FACTUAL BACKGROUND A. Case Overview and Plaintiffs’ Counsel’s Request for Appointment of Guardian Ad Litem for Anthony. On September 16, 2020, pursuant to a contingency fee agreement, BrightWork Law and its associated staff, including Briar Horn, Esq. and Jamin Horn, Esq. were retained to represent two brothers, Anthony Asaro (hereafter “Anthony”) and Angelo Asaro (hereafter “Angelo”) in their claims against Defendant Michael Augustine. (Decl. of A. Asaro, J 1; Decl. B. Horn § 1.) The gravamen of Plaintiffs’ claim is that their elderly father, Jerome “Jerry” Asaro (hereafter “Decedent), was unduly influenced by his substantially younger business partner, Defendant Michael Augustine (hereafter “Defendant Augustine”), into making sweeping and inexplicable changes to his estate plan. For the prior 30 years, Decedent’s estate plan had provided for Angelo and Anthony, his only children. The 2020 changes made to Jerry’s estate plan, were made in the wake of the Decedent having recently been rendered completely and permanently blind by a botched surgery. (Decl. of A. Asaro, § 2-3) The contested changes to Decedent’s estate plan disinherited both Anthony and Angela and named Defendant Augustine, an individual unrelated to Decedent, as the sole successor trustee and sole beneficiary to Decedent’s sizeable estate, estimated at $10 million. The estate document at issue, the Fifth Amendment and Restatement of Trust, was prepared under very unusual and highly suspicious circumstances, by an attorney that was previously unknown to the Asaro family, and at a time when Defendant Augustine owed Decedent a fiduciary duty as the Decedent’s caretaker. Eleven days after executing the estate document, on July 13, 2020, Defendant Augustine drove Decedent from the care home where Decedent lived, to Decedent’s prior residence, where the Decedent committed suicide by shooting himself with a gun kept on the property. (Decl. of A. Asaro, § 4-9) Decedent’s estate plan consists of two trusts: the Decedent Family Trust (hereafter “Family Trust”), which holds the bulk of Decedent’s assets, and the Anthony Asaro Special Needs Trust (hereafter “Special Needs Trust”), created to provide for Anthony (who receives disability). The Special Needs Trust was not funded at the time of the Decedent’s death. (Decl. of A. Asaro, § 10; Decl. B. Horn § 2) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 2SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES Since having been retained, BrightWork Law and its associated staff have diligently and vociferously pursued plaintiffs’ claims (Decl. of A. Asaro, J 11): ¢ On October 26, 2020, suit was filed against Defendant Augustine, alleging seven causes of action, including fraud and financial elder abuse. ¢ On March 4, 2021, Plaintiff's counsel, against opposition, successfully attached $ 4,239,941.00 in real property. ¢ On May 6, 2021, Plaintiffs counsel, against opposition, prevailed in attaching up to $1,993,851.00 in cash, held in ten different bank accounts. Plaintiff's counsel has conducted sweeping discovery, including: (i) multiple depositions; (ii) several rounds of written discovery; (iii) obtaining and conducting a detailed analysis of thousands of pages of financial records. Plaintiffs’ counsel is presently conducting additional third-party discovery, having issued more than thirteen separate subpoenas for business records. Plaintiffs’ counsel plans to conduct at least an additional eight depositions prior to trial. (Decl. B. Horn { 3-6) Since the inception of this action, Anthony has been the target of Defendant Augustine’s misconduct. Anthony suffers from cognitive disabilities, stemming from a traumatic brain injury that he suffered in the mid-1990s. Throughout this litigation, Defendant Augustine has repeatedly taken advantage of Anthony’s cognitive deficit, including but not limited to: (i) having Anthony execute a declaration, against his own interest, and submitted in opposition to the attachment of real property; (ii) orchestrating the mid-litigation hiring of attorney Nelson McElmurry to “represent” Anthony by “assist” Anthony in dismissing his case; (iii) filing a second purported declaration of Anthony, this one fraudulent and submitted in opposition to the attachment of bank accounts; and (iv) falsely claiming to be the successor-trustee of the Special Needs Trust. (Decl. of A. Asaro, §/ 12; Decl. B. Horn { 7) To protect Anthony from Defendant Augustine’s egregious misconduct, Plaintiff's counsel motioned for a preliminary injunction. On June 16, 2021, Hon. Judge Audra Ibarra granted Plaintiff's motion, enjoining Defendant Augustine from continuing his theretofore regular contact with Anthony, and preventing Defendant Augustine from hiring agents or attorneys, such as Nelson McElmurry, to perform work on Anthony’s behalf. (Decl. B. Horn {| 8)} MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 3SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES On May 13, 2021, to further protect Anthony from the coercion and undue influence of Defendant Augustine and his associates, Plaintiff's counsel filed an Application for Appointment of Guardian Ad Litem (“GAL”). The application requested that this Court select a GAL of its own choosing. The Probate Clerk improperly rejected this application for having failed to identify the GAL. (Decl. B. Horn { 9) On June 1, 2021, Plaintiffs counsel refiled the application for appointment of a GAL, again seeking to have this Court select a guardian of its own choosing. On June 17, 2021, Hon. Judge Drew Takaichi granted the application, selecting Lorna J. Drope, Esq. from the list of GALs maintained by the court, to serve as GAL for Anthony. (Decl. B. Horn § 10) B. Guardian Ad Litem Dropes’ Breaches. On June 28, 2021, Plaintiff’s counsel emailed Ms. Drope to provide background information on Anthony’s case. (Decl. of J. Horn, § 2.) On July 26, 2021, Ms. Drope requested a video of Anthony taken by Plaintiffs’ counsel. The requested video was provided to Ms. Drope that same day, July 26, 2021. (Decl. B. Horn § 11; Ex. A) At the August 10, 2021, Case Management Conference (“CMC”) before the Hon. Judge Drew Takaichi, without any prior communication related to the case or any issues, Ms. Drope requested the removal of BrightWork Law’s attorneys Jamin Horn, Esq., and Briar Horn, Esq. based on a mistaken belief that that Anthony was a beneficiary of Decedent’s estate plan and Angelo was not, which in Ms. Drope’s estimation caused the two brothers to have adverse interests to one another. (Decl. of J. Horn, § 3.) The Court made clear at the CMC, that that removal of Anthony’s present counsel would require either the execution of a substitution of counsel form or a motion by Ms. Drope. (/d.) On August 17, 2021, in response to Ms. Drope’s statements at the August 10, 2021 case management conference, Plaintiff's counsel Jamin Horn emailed Ms. Drope, particularly identifying issues with the 3"! and 4 Amendments of the Decedent’s trusts in an effort to correct Ms. Drope’s mistaken assumptions regarding the existence of a conflict. (Id. at { 4.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 4SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S The memorandum provided to Ms. Drope included the statement that: “No operative or potentially operative trust instrument names Anthony but not Angelo a beneficiary to required trust distributions. Therefore, Anthony and Angelo have identical interests in contesting the Fifth Amendment and Restatement of Trust and reverting to the Third Amendment to Trust.” (/d. at Ex. A) Ms. Drope was informed that distribution to the Special Needs Trust were subject to the sole and absolute discretion of Defendant Augustine and that Defendant Augustine appeared exceedingly unlikely to make any meaningful distributions to the Special Needs Trust — a fact borne out by Defendant Augustine’s deposition testimony. (/d.) Plaintiff's counsel also provided citations to the California Rules of Professional Conduct Sections 1(b) and 1.7(a) relating to conflicts of interests, that among other things, stated: “ ..both Angelo and Anthony were informed that our firm would be undertaking their joint representation. They believed that they were disinherited at the time, and this belief has proven true. The joint representation was disclosed to Angelo and Anthony, and they each signed a joint engagement letter. A copy of the e- signed engagement letter, and hand signed engagement letter are attached for you review.” [Emphasis added.] (/d. at Ex. A) Within forty minutes of the above email having been sent, Ms. Drope’s paralegal Kristen Avery requested copies of the 3" and 4'" Amendments to the Decedent’s trust. (Jd. at Ex. B.) The] requested documents were sent that same day, with Ms. Avery confirming their receipt. (/d at Ex. C; D.) Approximately two weeks later, on September 1, 2021, again without Ms. Drope having reached out to Plaintiff's counsel to discuss the facts of the case, the status of the case, or to request any documents related to the case, or her assertion that a conflict prevented their representation of Anthony, and in clear violation of this Court’s clear instruction and no indication that Ms. Drope had contacted Anthony for whom she was serving as guardian, a letter was received from James P. Cilley, Esq. on behalf of Ms. Drope that stated: “This will advise you that our law firm has been retained by Lorna J. Drope, Esq. in her capacity as Guardian ad Litem for Anthony Asaro. In her capacity as Guardian ad Litem, Ms. Drope will now be solely responsible for pursuing Anthony Asaro's claims in connection with the above captioned matter.” [Emphasis added.] (/d. at Ex. F; Decl. of B. Horn § 12, Ex. B; C) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 5SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S The next day, on September 2, 2021, Plaintiff's counsel Briar Horn responded to Mr. Cilley’s communication, informing him that: (i) the adverse interest/conflict issue raised by Ms. Drope was without merit; (ii) Ms. Drope did not possess the authority to fire BrightWork Law, (iii) Ms. Drope’s attempted firing of BrightWork Law was a violation of this Courts clear instruction pertaining to the process for removal and/or substitution of present counsel; (iv) Ms. Drope’s attempt to use her position as guardian ad litem to hire herself as counsel for Anthony was an egregious conflict of interest; and (v) that if the firing of BrightWork Law was not immediately rescinded that BrightWork Law would be reporting Ms. Drope to the California State Bar, filing a motion for her removal as guardian ad litem, and bringing a civil suit against Ms. Drope. (Decl. of B. Horn 13; Ex. D) On September 3, 2021, Mr. Cilley sent the following communication, claiming that his prior communication was merely a request for documents: “We have simply requested files that you have agreed to produce. We have not prepared and submitted a Substitution of Attorney specifically because of the Court’s comments at the recent Case Management Conference.” (Jd. §] 14; Ex. E; F) On October 5, 2021, Plaintiff's counsel Briar Horn, emailed Ms. Drope a case update that] requested Ms. Drope’s input on pressing strategic decisions related to Anthony’s case. The email regarded a draft communication to opposing counsel, that included a proposed agreement whereby BrightWork Law would waive all attorney fees and costs as to transfers from the Family Trust to the Special Needs Trust effectuated within 60 days, more particularly stating the following: “In a separate but related matter, it has become apparent to counsel that the present litigation and BrightWork Law legal fees are likely serving as a convenient excuse for why Mr. Augustine has failed to meaningfully fund the Asaro Needs Trust. It being the intent of counsel to ensure that the Asaro Needs Trust is properly funded in a timely manner, Briar Horn, Esq., Jamin Horn, Esq. and BrightWork Law hereby agree to waive any and all legal fees and costs as to any transfer of funds from the Jerry Family Trust (ug to 50% of the net estate thereof) to Sam Asaro, as trustee of the Asaro Needs Trust, made within 60 days of the date of this email. Further, counsel will stipulate and/or take any actions necessary to free assets from attachment so that the above contemplated transfer can be effectuated should Mr. Augustine choose to agree to such a transfer.” (/d. J 15; Ex. G; H) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 6SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES Inexplicably, Ms. Drope failed to respond to counsels’ email or BrightWork Law’s proposed offer to waive fees and costs which pending review and response by a responsible guardian ad litem can still be made to the opposing party and could amount to over $1 million in savings to Anthony. (/d. § 16) On October 8, 2021, Plaintiffs counsel Briar Horn, forwarded to Ms. Drope an email chain between himself and Andrew Calvert, Esq. Sam Asaro’s attorney, regarding issues surrounding Sam Asaro’s management of the Special Needs Trust. (/d. § 24; Ex. J) Sam Asaro is the Decedent’s brother and Anthony and Angelo’s uncle. Sam Asaro is the trustee of the Special Needs Trust. (/d. J 17) For unknown reasons, Sam Asaro appears to have sided with Defendant Augustine, filing} a declaration in opposition to the attachment of real property at the outset of this litigation, an act} that ran directly counter to Anthony’s interests and was undertaken while Sam was trustee of the unfunded Special Needs Trust to which Anthony is the sole beneficiary. Briar Horn’s October 8, 2021 email to Mr. Andrew Calvert was made in the wake of Sam Asaro’s October 1, 2021 deposition, at which a number of additional issues regarding Sam Asaro’s conduct as trustee were brought to light. (/d. § 17, 20) At his deposition, Sam Asaro claimed that despite having regular contact with Defendant Augustine —including discussions with Defendant Augustine in preparation for his own deposition, and discussion regarding the Special Needs Trust— that he had no knowledge of the fact that Defendant Augustine had for months been claiming to be the trustee of the Special Needs Trust. (/d. ¥ 19; Ex. I at p. 9, 44-45) Sam also testified that Defendant Augustine did not inform him of the existence of the sham Special Needs Trust bank account that had been created and “funded” with $80,000 by Defendant Augustine during the time Defendant Augustine was improperly claiming to be the trustee. (/d. § 19; Ex. I at p. 57-58). Sam Asaro further testified that he first took action as trustee of the Special Needs Trust just one month prior to his October 1, 2021 deposition, fully 310 days after the filing of this action and 415 days after the Decedents death. (/d. {] 20; Ex. Lat p. 50, 52-53). Sam also revealed that this action, taken within weeks of his scheduled deposition, amounted to a single request tha’ Defendant Augustine transfer a $16,000 to the Special Needs Trust (less than one-quarter of the funds Defendant Augustine placed into the sham Chase account for Anthony and less than one- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 7SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S half of one percent of the estate assets ordered attached in this action. (/d. 21; Ex. I at p. 50, 52- 53). The October 8, 2021 email with Mr. Calvert, that I forwarded to Ms. Drope, sought to apprise Sam Asaro of his fiduciary duties to Anthony and to provide Sam with the documents and information necessary to demand return of the funds held in the sham Chase account. (/d. §] 24; Ex. J) The email included documents that demonstrated that Defendant Augustine had: (i) for months been falsely claiming to be the trustee of the Special Needs Trust; and (ii) the bank records showing that Defendant Augustine created and funded the sham Chase Special Needs Trust bank account with $80,000 during the time he was falsely claiming -to Plaintiffs and this Court- that he was the acting trustee of the Special Needs Trust. (/d. § 22) This email was provided to Sam Asaro despite Sam having inexplicably claimed at his October 1, 2021 deposition that, should the sham Chase account created by Defendant Augustine be shown to exist, he [Sam] would not request the funds from Defendant Augustine. (/d. {| 23; Ex. I at p. 58) Also on October 8, 2021, Plaintiff's counsel Briar Horn, emailed Ms. Drope a lengthy (over five-thousand-word) update on counsels’ progress, including the recent deposition of Sam Asaro, third party discovery, and requesting that Ms. Drope’s provide her input on strategic case decisions —including responding to Briar Horn’s prior emails. (/d. § 25) The content of the October 8, 2021 communication and a number of prior communications with Ms. Drope are protected attorney client communication and are subject to attorney work product protection, for this reason they the full contents are not submitted here but can be submitted to this Court in camera upon request. (/d. 26) Plaintiff's October 8, 2021 communication with Ms. Drope also raised the serious issue with Ms. Drope’s conduct broght to light at Sam Asaro’s October 1, 2021 deposition, namely that Ms. Drope had informed Sam Asaro that BrightWork Law had a conflict in representing Anthony. Communicating this type of internal and highly sensitive information to Sam Asaro, an| individual that filed a declaration in opposition to the attachment of real property and has been in direct and continued contact with Defendant Augustine, amounted to sabotage of Anthony’s case. (Id. § 27) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 8SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S Plaintiff's counsel Briar Horn, raised this concern with Ms. Drope’s conduct in the October 8, 2021 email, stating: “Finally, during his deposition, Sam Asaro claimed that you informed him that BrightWork Law might have a conflict of interest in representing both Angelo and Anthony. You have raised this concern but have yet to provide a firm basis for this assertion. As you are aware, BrightWork Law will be representing Anthony Asaro until such time as you bring a properly noticed motion seeking our removal. While we may not agree on this specific point, there is absolutely no strategic benefit to your having informed Sam Asaro of the issue. Sam Asaro who prepared for his deposition by discussing it with Mr. Augustine for some reason has been a fairly uncooperative and hostile witness. It seems inappropriate to share any conflict concerns with him. Rather, these concerns should be addressed to us and/or the court. While the damage done from this unnecessary disclosure is behind us, it is my hope that moving forward we can present a unified front or at least limit communications to those that seem to have a close relationship with the defendant in this matter as this will surely result in a far better outcome to this litigation.” (/d. | 27) On October 19, 2021, 18 days after Briar Horn’s October 1, 2021 email was sent to Ms. Drope, and 11 days after Briar Horn’s two October 8, 2021 emails were sent to Ms. Drope, she finally responded, stating: “T apologize for the delayed response. As you know, I have engaged Temmerman, Cilley, & Kohlmann in this matter. I forwarded your correspondence to Mr. Cilley and thought he had responded. I learned yesterday he had not yet responded. He should be responding before the end of the week. Note - I was unaware that Sam Asaro was to be deposed. Please be sure I receive notice of any further depositions, as well as any other discovery matters.”! (/d. {| 28; Ex. K) On October 20, 2021, Sam Asaro, emboldened by Ms. Drope’s inappropriate disclosure, responded to Briar Horn’s October 8, 2021 email with a letter, dated October 18, 2021, that stated: (i) Anthony was not in need of legal services, and (ii) that BrightWork Law was fired — such purported attempts to act on Anthony’s behalf being the reason BrightWork Law sought the appointment of a guardian ad litem for their client, Anthony, in the first insance. ' It should be noted that the deposition of Sam Asaro was outlined as an upcoming discovery action on the Plaintiff's Case Management Statement filed 8/9/21 and was discussed at the CMC at which Lorna Drope was in attendance. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 9SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S Sam Asaro’s October 20, 2021 letter included what purported to be the hand-written note of Anthony, evidencing that Anthony was once again the target of undue influence and coercion. (Decl. of B. Horn 29; Ex. L) The next day, on October 21, 2021, Mr. Cilley sent a communication to BrightWork Law stating that BrightWork Law had been “repeatedly” fired, and that BrightWork and its staff should cease direct communication with Ms. Drope, cease any and all work on behalf of Anthony, and raising issue with BrightWork Law’s fee agreement with Anthony: “Dear Gentlemen: As you know, our law firm has been retained by Lorna J. Drape, Esq. ("GAL") in her capacity as Guardian ad Litem for Anthony Asaro. As previously requested, please direct all future correspondence related to my client as Guardian ad Litem for Anthony Asaro to my attention. In light of your recent emails to GAL, which you failed to copy me on, it is our instruction that no further depositions or steps are taken in the pending civil litigation. You will not be compensated by GAL for any time spent deposing parties nor preparing any further pleadings. Your fee agreement, even if valid, permits GAL to terminate your services. She has done so, repeatedly, and you have failed to comply. We will be pursuing a motion to, among other things, have your firm disqualified. Further, as requested in our September 1, 2021 letter, please provide me with all of the estate planning documents for decedent Jerry, formerly Jerome Asaro. Note that I have still not received a copy of the Third or Fourth Amendments to the Jerry Family Trust. (Decl. of B. Horn § 30; Ex. M; N) The timing and content of Sam Asaro’s purported October 18, 2021 firing of BrightWork Law, Ms. Drope’s October 19, 2021 email communication, and Mr. Cilley’s October 21, 2021 letter, lead to the reasonable inference that these three individuals are conspiring to fire BrightWork Law in direct contravention of this Courts instructions regarding removal of present counsel. (Decl. of B. Horn § 30) Further, Mr. Cilley’s claim, that he has not been provided the Third or Fourth Amendments of Trust, is demonstrably false. These documents were provided to Ms. Drope’s paralegal, Kristen Avery on August 17, 2021, with Ms. Avery confirming receipt in writing. (Decl. of J. Horn, Ex. C; D.). The documents were then subsequently provided to Mr. Cilley directly on September 9, 2021, along with the entire case file, pursuant Mr. Cilley’s September 1 2021 request (Decl. of B. Horn § 31; Ex. O). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 10SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES Therefore, in addition to a continued failure to provide any guidance on pertinent case matters, including but not limited to the proposed offer to waive all fees and costs as to transfers to the Special Needs trust, it is clear from that despite having had the requested documents for months Ms. Drope and her attorney, Mr. Cilley, have failed to review the two most pertinent documents related to Anthony’s case. It can only be inferred from Mr. Cilley’s most recent communication that Ms. Drope is again pursuing the goal stated in Mr. Cilley’s initial, September 1, 2021 communication: for Ms. Drope to replace BrightWork Law as Anthony’s counsel, such that “Ms. Drope will now be solely responsible for pursuing Anthony Asaro's claims.” Finally, Mr. Cilley’s demand, that BrightWork Law cease work on behalf of Anthony, directly undermines Anthony’s interests, especially given that Ms. Drope and Mr. Cilley have been made aware that Plaintiff's counsel is currently in the midst third party discovery and anticipates at least one motion to compel (which is time barred) will need to be filed in the coming days. Il. ARGUMENTS A. The Court has the inherent power to remove and/or replace a guardian ad litem. It is a long-held principle that “the appointment of a guardian ad litem is subject to ongoing court supervision and the removal of a guardian ad litem, who functions partly as an officer of the court, is a matter within the court's control to be exercised as part of its inherent powers. In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1148-1149, 33 Cal.Rptr.2d 46; Sarracino v. Superior Court (1974) 13 Cal.3d 1, 13, 118 Cal.Rptr. 21, 529 P.2d 53; Estate of Hathaway (1896) 111 Cal. 270, 271, 43 P. 754. A motion for removal and/or replacement of a guardian ad litem can be brought by any party to the action, or by the Court sua sponte. M M MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 11SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES B. Removal of a guardian ad litem is warranted where the guardian fails to fulfill their duty and/or takes actions that are inimical to the legitimate interests of the incompetent person. The role of the guardian ad litem is to protect the incompetent person's rights in the action, to control the litigation, to compromise or settle, to direct the procedural steps, and make stipulations. (Jn re Charles T. (2002) 102 Cal.App.4th 869, 875-876, 125 Cal.Rptr.2d 868.) The guardian ad litem's powers are subject to both the fiduciary duties owed to the incompetent person and the requirement that court approval be obtained for certain acts. (/.W. v. Superior Court (1993) 17 Cal.App.4th 958, 965, 22 Cal.Rptr.2d 527.) “Like any other officer of the court (receiver, conservator, referee, etc.), a guardian ad litem is subject to court supervision. Should a guardian ad litem take an action inimical to the legitimate interests of the [incompetent person], the court retains the supervisory authority to rescind or modify the action taken.” Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502, 76 Cal.Rptr.2d 95. C. Lorna J. Drope, Esq. has failed to fulfill her fiduciary duty to Anthony, having repeatedly taken actions that are inimical to Anthony’s legitimate interests, necessitating her removal and replacement. When BrightWork Law sought the appointment of a guardian ad litem for its client, Anthony, it did so to protect Anthony’s interests. The application was submitted in the midst of a concerted effort by Defendant Augustine to get Anthony to drop his meritorious lawsuit. Unfortunately, Ms. Drope has failed to achieve her purpose as GAL, having taken the following actions inimical to Anthony’s legitimate interests: (i) Ms. Drope and her counsel, James Cilley, Esq., have failed to perform even the most cursory review of the documents issue in Anthony’s case, including most importantly the Third, Fourth, and Fifth Amendment and/or restatement of Trust, and the declaration of Sam Asaro filed in opposition to attachment of real property (which would have made clear that divulging sensitive information to MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 12SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES (ii) (iii) (iv) (v) (vi) (vii) Sam Asaro stood a high probability of causing irreparably harming Anthony’s case); Ms. Drope has repeatedly demonstrated inexcusably delay in responding to counsels pressing pleas for guidance regarding Anthony’s case. To date, Ms. Drope, despite having been appointed since June 1, 2021 and having received numerous communications from Plaintiffs counsel, has failed provided any guidance whatsoever regarding Anthony’s case; Ms. Drope has focused her entire efforts as GAL on repeatedly raising the nebulous and non-meritorious claim that Anthony and Angelo (two disinherited brothers) somehow have adverse interest to one another regarding recapturing their stolen birthright from Defendant Augustine and that this would categorically precludes BrightWork Law from continuing its successful representation of Anthony; Ms. Drope has hired law firm Temmerman, Cilley & Kohlman LLP to represent her in her “capacity as guardian ad litem,” said firm also failing to undertake even the most cursory review of the documents or provide any guidance regarding Anthony’s case other than to stop all work; Ms. Drope now refuses to communicate directly with plaintiffs’ counsel, directing} all communication to her attorney, Mr. Cilley — who provides no guidance responsive to Plaintiff's counsels repeated requests for Ms. Drope’s strategic guidance on pressing case matters; Ms. Drope has failed to respond to counsel’s request for a meeting with Anthony and is believed to have never met with Anthony; Ms. Drope has begun actively sabotaging Anthony’s case, informing Sam Asaro, and therefore Defendant Augustine, of her adversity/conflict theories; a blunder that served absolutely no strategic purpose whatsoever and irreparably harmed Anthony’s case (as evidenced by Sam Asaro’s recent purported firing of BrightWork Law Anthony’s hand-written letter, evidencing that Ms. Drope’s blunder has again made Anthony a target of undue influence and coercion). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 13SCO mM NDA BR WN He CmrIaAwA FB wWwHN NN YN NY NNN DY cd AUK YW NE S (viii) Ms. Drope has now demanded that BrightWork Law cease taking any action to further Anthony’s interests in this case, and this demand was made when Ms. Drope had been informed of: (i) the possible need to file a time barred motion to compel, (ii) substantial pending third party discovery; (ix) | The timing and content of Ms. Drope and Sam Asaro’s communications indicate that Ms. Drope and Sam Asaro are working in a concerted effort to fire BrightWork Law in violation of this Courts instructions; (x) Ms. Drope appears to have undertaken the above course of action with the goal of] using her position as Anthony’s GAL to hire herself as Anthony’s counsel. Ms. Drope’s attempts to effectuate this direct conflict lays bare her true motivation is to reap the reward of Anthony’s exceptionally strong and highly developed multi- million-dollar case at the expense of both Anthony and BrightWork Law. BrightWork Law and its attorneys have invested substantial time, energy, and resources pursuing Anthony’s claims. To date, the litigation has been marked by only success, with the Court repeatedly finding that Anthony is likely to prevail on his claims against Defendant Augustine. Ms. Drope’s highly unusual mid-litigation attempts to fire BrightWork Law, such that sha would be “solely responsible for pursuing Anthony Asaro's claims” raise serious public policy concerns. If such GAL conduct were to be sanctioned by this Court, it would invariably dissuade many an attorney from requesting a GAL be appointed for their client, as they could find themselves without a job and, as in this case here, having their fee agreements called into question by an opportunistic GAL. On August 10, 2021, Ms. Drope was informed by this Court that removal of present counsel would require a motion — a statement made by this Court in accordance with California law relating to the powers of a guardian ad litem. It has now been over 77 days and no motion for removal has been forthcoming. This is likely due to Ms. Drope surmising that such a motion would be summarily denied, both in light of her demonstrated incompetence as GAL and her transparent attempts to effectuate her conflicted self-hiring as counsel. Instead, Ms. Drope has opted to operate outside of this Courts supervision and California law, repeatedly violating this MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 14SOU mM NDA BR WN CmirdIAwnw FB wN bony NY NNN DY ec A AK YN ES Courts clear instructions by repeatedly and unilaterally attempting to effectuate the firing of BrightWork Law. Ms. Drope is an officer of this Court, subject to this Courts oversight. This Court has inherent authority to remove Ms. Drope. Given Ms. Drope’s repeated action inimical to the legitimate interests of Anthony, this Court must exercise that authority immediatley removing Ms. Drope and appointing a replacement GAL who is better able to serve Anthony’s most pressing needs. VI. CONCLUSION For the foregoing reason, Plaintiff's counsel respectfully requests that this Court grant the| instant motion and enter an order: (i) removing Lorna J. Drope as Anthony’s guardian ad litem; (ii) denying of Ms. Dropes's fees and expenses; (iii) appointing a replacement guardian ad litem of the Courts own choosing. Dated: October 27, 2021 BRIGHTWORK LAW Briar 2 Attorifey for Plaintiffs ANGELO ASARO and ANTHONY ASARO MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION FOR REMOVAL AND REPLACEMENT OF GUARDIAN AD LITEM 15