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FILECOUDNTY
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08-20-2004
ALAMEDA
STEVEN B. PISER, SBN 62414
LAW
A
OFFICES
Professional
OF STEVEN
Corporation
B. PISER AUG 20 2004
499 Fourteenth
Oakland,
Street,
California
Suite
94612
210
ByARTUF GIMS. Exec,Offclerk
ld
Telephone 510-835-5582
Attomey for Defendant
in
Douglas G. Sykes
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
10
GWEN R. SYKES, Case No. RG03 106646
Sumner?
1
ae
Plaintiff, DEFENDANT’S REPLY TO
“get”
12 PLAINTIFF’S MEMORANDUM OF
Vv. cael” Nowa” “sae! Naren?
POINTS AND AUTHORITIES IN ,
13 OPPOSITION TO MOTION FOR ORDER
DOUGLAS SYKES, an individual, DOES 1 GRANTING PRIOR SEPARATE TRIAL
14 through 20, inclusive, ON ISSUE OF VALIDITY OF
PRENUPTIAL AGREEMENT
Ness” Sees”
15 Defendants
Date: August 26, 2004
ewe
16 Time: 9:00 a.m.
Name!
Dept: 136
17
Trial Date: October 1,2004
18
19 INTRODUCTION
20 Gwen devotes the majority of her opposition to the motion forbifircation (6 out of 8
21 pages) to arendition of the supposed “bad acts” of Doug throughout the years. None of itis
22 relevant to the issue before this court: whether the issue of the validity of the premarital
23 agreement Gwen indisputably signed should, inthe interests of justice and judicial economy, be
weeny
AG
Legal
By
24 tried before the other issues in the case. There is no dispute thata determination that the
Filed
XVa
25 agreement isvalid would end the case.
One
26 Doug will not respond in detail to Gwen’s lengthy and irrelevant statement of facts. Much
27 of itis simply argument. Suffice itto say,Doug disputes many of the allegations made in Gwen’s
28 statement of facts and will produce evidence to refute them, ifnecessary, at trial.The issue
1
taw OFices of
STEVEN
8. PISER
DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
@ 7-395 «= P.003/010= F905
08-20-2004 = 14:26 FROM ©
before the court here, however, iswhether trialof those issues is necessary to determine the
validity of an agreement. The answer is“no.”
LEGAL ARGUMENT
Gwen claims that allof the facts she alleges in her opposition briefare “essential” to
prove both the invalidity of the prenuptial agreement and Doug’s underlying liability.See
Plaintiff's Memorandum of Points and Authorities In Opposition To Motion For Order Granting
DH
Prior Separate Trial On Issue Of Validity Of Prenuptial Agreement (“Plaintiff'sMPA”) 7:5-6.
NH
She then sets forth a laundry listof allegations that she apparently claims will establish that the
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prenuptial agreement isinvalid, What she fails to do is offer any legal authority thather claims, if
O60
proved, would establish the invalidity,or any explanation of why “allof the facts set forth above”
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are necessary to prove her claims. See Plaintiff'sMPA 7:8-8:9. Doug will address each ofthem
in turn,but Gwen’s conclusory statement thatshe needs to prove every fact inher entire case
(beginning in 1992) in order toestablish theinvalidity of theprenuptial agreement (executed in
late 2000) issimply that: a conclusion unsupported by the evidence.
Family Code section 1615 regulates the enforceability ofpremarital agreements. Jn re
Marriage of Bonds (2000) 24 Cal.4th 1,15. A premarital agreement will be enforced unless the
party resisting enforcement can demonstrate either (1) thathe or she did not enter into the
contract voluntarily or (2) that the contract was unconscionable when entered into and that he or
she did not have actual or constructive knowledge of the assets and obligations of the other party
and did not voluntarily waive knowledge of such assets and obligations. ibid. A trialof Gwen’s
numerous and ever-evolving claims isunnecessary to establish the validity or invalidity of the
premarital agreement.
. Claim: “Doug fraudulently induced Gwen to sign the prenuptial agreement
through fraudulent misrepresentations, fraudulent concealment, fiduciary duty
breaches, and undue influence....” Plaintiff's MPA 7:8-9.
This claim is so broadly stated as tobe meaningless in the context ofshowing that allthe
facts of Gwen’s case, from 1992 on, must be proved inorder to determine the validity of the
premarital agreement, Nevertheless, Doug will attempt to meet it.
2
Law OHices of
STEVEN
B. PISER
DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
8-20-2004 14:26 FROM © @ 1-395 P.004/010 F-805
The “frauds” alleged by Gwen were that (1)Doug claimed he needed a prenuptial
agreement for financial reasons whereas his real reason was to “fraudulently manufacture
protection from the future contract and tortclaims” that he intended to repudiate in the future (see
ws
Plaintiff's MPA 4:17-5:7); (2) thathe toldher thatthe prenuptial agreement was “meaningless”
&
that itdidn’t change anything between them, and that itwould become effective only upon both
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an attorney’s review and signature and the consummation of their contemplated November 2000
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marriage (see Plaintiff's MPA 4:27-5:3); and (3)that the release ofpast claims and a claim that
“)
no oral agreement existed was “buried” inthe agreement (see Plaintiff's MPA 5:7-8).
While Doug disputes allof these claims,’ the relevant fact for thismotion isthat none of
10 these alleged frauds require evidence ofGwen's claims for personal injuries or alleged
11 contractual breaches. The good faith of these contentions is inquestion. Gwen testifiedthat she
12 took the contract to an independent attorney, who explained itto her—a factsurprisingly missing
13 from Gwen’s otherwise detailed version of the events. So whatever their past relationship,
14 agreements, injuries,etc., Gwen was actually informed contents of the agreement and
15 nevertheless returned a signed copy toDoug. The alleged events ofthe early 1990s prior tothe
16 negotiation and execution of the 2000 contract are irrelevant to determine the validity ofthe
1? agreement.
18 . Claim: “Gwen did not voluntarily execute the prenuptial agreement, as defined by
19 Family Code section 1615....” Plaintiffs MPA 7:11-12.
20 Is a decade-long history isnecessary toprove that Gwen’s execution of the prenuptial
21 agreement was not voluntary? No.
22 Many factors are relevant towhether a prenuptial agreement is voluntary: whether there is
23 coercion;” the presence or absence of independent counsel or the opportunity to consult one:
24
25 ' The first
contention ismeaningless—a release
of pastclaimsby itsnatureextinguishesany obligation.There
can befo “futurerepudiation”of acontractualobligation
thatdoes not exist.The second claimisirrelevant.Gwen
26 herselfadmitsthatshe consultedan independentattorneywho cxplainedthe agreement toher. The third
claim is
obviouslyuntrue. The courtcan review ExhibitA and seethatthe releaseandrepudiationof oralagreements isnot
27 “buried”in theagreement.
28 2 Coercion theuniquc contextof premaritalagreementsmay arisefrom theproximity of the
wedding dateor
3
Law Offices af
STEVEN
8, FISER
DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
Y T-395 P.005/010 = F-905
08-20-2004 14:27 FROM~ r
inequality of bargaining power, in some cases indicated by the relative age and sophistication of
the parties; whether there was a full disclosure of assets; and the parties’ understanding of the
ho
rights being waived under the agreement or at leasttheir awareness of the intent ofthe agreement.
tod
In re Marriage of Bonds, supra, at 18. None ofthese factors ispresent here: Gwen has testified
that Doug did not threaten her, the marrage date (according to her) was the next month. Gwen
Wa
could, and did, retain independent counsel. She was a mature woman, with a highly-paid and
responsible job, two masters degrees, and experience with a previous, non-executed premarital
~
agreement.
None of the factors relevant to voluntariness requires atrial of allof Gwen’s claims. Her
10 alleged herpes, her claims to have invested in the Alvarado Road property, Doug’s alleged
Il promises throughout the years, etc. have nothing todo with whether she voluntarily and
12 knowingly waived rights she may have had in signing the premarital agreement. The only
13 question iswhether, atthe time she signed the agreement, she freely and knowingly did so.
14 . Claim: “Gwen made a mistake of fact when signing the prenuptial agreement,
15 which was induced by Doug’s intentionally false representation....” Plaintiff's
16 MPA 7:13-14.
17 Gwen does not specify what “mistake of fact” she allegedly made when signing the
18 prenuptial agreement and what “Doug’s intentionally falserepresentation” allegedly was, so itis
19 impossible to know the basis for her claim that “such mistake of factwill require proof of allof
20 the facts setforth above, which also prove Doug’s liability.” But, for the same reasons set forth
21 in response to the firstclaim (fraud), above, her alleged “mistake of fact” does not require a trial
of allthe facts of the case.
23 . Claim: “the prenuptial agreement’s effectiveness was conditioned upon receiving
24 independent attorney’s signature, but that never happened...” Plaintiff's MPA
25 7:15-16.
26
27 surpriseinthepresentationof theagreement aswell astraditional
means of coercion.See In reMarriage of Bonds,
supra,at 18..
28
4
Law Offices of
STEVEN
B. PISER
DEFENDANT’S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
@ 7-385 P.006/010 = F-805
08-20-2004, 14:27 FROM @
Claim: “the prenuptial agreement’s effectiveness was conditioned vpon the
November 2000 wedding, but that wedding never happened...” Plaintiff'sMPA
WN
7:18-19.
WwW
Gwen claims that the contract had two “conditions precedent”: the signature ofan attomey
>
on the contract and aNovember 2000 wedding. Neither of these claims, even if they were valid,
A
would require proof of any events prior tothe negotiation of the 2000 contract.
DH
. Claim: “Gwen's actions in canceling the November 2000 wedding, moving out of
“I
Doug’s house, and terminating their relationship revoked and/or rescinded the
co
alleged prenuptial agreement....” Plaintiff'sMPA 7:20-21.
Oo
10 Contracts may be rescinded or revoked on the grounds set forth in Civil Code section
11 1689, such as mistake, duress, menace, fraud or undue influence exercised by the party against
12 whom the contract is sought to be rescinded orlack of consideration, etc. Gwen’s actions in
13 allegedly canceling the November 2000 wedding are irrelevant to a claim of revocation or
14 rescission unless she had a basis for rescission, which she did not. Even ifshe did, evidence
15 relating to her actions in 2000 do not require a trialof the entire history of the parties’
16 relationship, her alleged injuries, and their fmancial dealings.
17 . Claim: “the prenuptial agreement wasn’t applicable to the August 15, 2001
18 wedding and subsequent marriage...” Plaintiff's MPA 7:23-24.
19 There is nothing inthe prenuptial agreement that restrictsitto a particular wedding date.
20 The contract states that the parties agreed tothe terms of the contract “in consideration of their
21 contemplated marriage...” But even if theissue of whether the agreement was applicable only to
22 a particular wedding date must be tried,evidence relating to that issue could, at most, encompass
23 evidence relating to Doug and Gwen’s attempts to execute a premarital agreement, startingin the
24 lasthalf of 1999. Itwould nor require evidence as toGwen’s alleged herpes in 1992 and
25 thereafter, the house construction, theiralleged financial dealings, etc.
26 , Claim: “Doug never manifested any assent to any prenuptial agreement signed by
27 Gwen, and therefore a binding prenuptial agreement was never consummated...”
28 Plaintiff's MPA 7:25-26,
5
law Ditices of
STEVEN 8. PISER
DEFENDANT’S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
FROM @ @ T-305 -P.OO7/010«=F-805
08-20-2004 14:27
Defendant disputes the legal effect of thisargument, that even if a failure toreturn a
&
signed copy to Gwen had some legal significance, evidence ofthe non-return would not require
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any evidence of theirprior history and the entirefacts ofthe case.
HW
. Claim: “the prenuptial agreement didn’t accurately reflect allof Doug’s assets or
F&F
their fullextent and value....” Plaintiff's MPA 8:1-2.
WH
There is no evidence thatthe prenuptial agreement does not accurately reflect allof
A
Doug’s assets or theirfull extent and value. Even if therewere such evidence, it would be
N
evidence that Doug owned property not listed inthe premarital agreement or that he
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misrepresented their value. None of thatevidence would require testimony regarding Doug and
iD
Gwen’s relationship, her alleged herpes, theirrepeated quarrels, the building of the house on
&
Alvarado Road, etc.
KY
° Claim: “as Gwen’s attorney and financial advisor, Doug breached his fiduciary
PO
eee
duties to Gwen by trying to impose this prenuptial agreement on Gwen and by
WY
acting directly contrary to Gwen’s best interests...” Plaintiff’sMPA 8:3-4,
SF
Gwen claims that Doug was her attorney and “financia] advisor” and thus owed her a
Hh
fiduciary duty not to “impose” the prenuptial agreement on her and to act inher best interests.
HR
But there isno cause of action for breach of fiduciary duty.
HS
Furthermore, Doug disputes thathe was Gwen’s attorney for many years prior to the
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execution of the prenuptial agreement or that he served as her “financial advisor.
CO
”? Bur itis not
necessary to try allthe facts of the case in order todetermine whether the agreement isinvalid on
OBO
RD
this basis.
DR
YF
In this case, even assuming Doug’s status as an alleged fiduciary is within the issues,there
RD
HB
need not be a trialof all the factsin the case in the context of determining the validity of the
WD
RD
prenuptial agreement. The fact isthat Gwen testified under oath that she consulted an
RF
RD
independent attorney, chosen and paid for by her, who explained the contract to her.
UV
PR
BOO
OA
3 {tisclearthatGwen and Dong had nofiduciaryrelationship
towards each otherby virtueof thefact
that
NN
Bh
theyintended tomarry. Jn reMarriage of Bonds,supra,at29.
eo
NI
6
Law Offices of
STEVEN
Bl. PISER
DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
© @ J-305 =P.008/010 F905
08-20-2004 14:28 FROM-
. Claim: “in February 2003, Doug himself didn’t believe in the now alleged
‘validity’ of hisprenuptial agreement...” Plaintiff's MPA 8:6.
This claim is apparently based on the fact that atthe time Doug filedfor divorce he gave
uo
Gwen a proposed stipulation for settlement oftheir legal obligations to each other. Gwen
fF
contends that this resulted from Doup’s “[r]ecogni[tion of]the fatalflaws in hisallegedly ‘valid’
rH
prenuptial agreement...” See Plaintiff'sMPA 6:19-23. First, this ismerely Gwen’s conclusion.
DH
Second, even itDoug did not believe the agreement was valid, itisirrelevant. The validityof an
NN
agreement isa matter of objective fact,not the belief of the parties—especially a belief claimed to
co
have been held after the contract was signed. Finally, and most relevant to this motion, evidence
Oo
10 of what Doug believed in2003-three years afterthe agreement was signed—obviously does not
ia require a trialof all the claims inthe liabilitycase.
12 . Claim: “the alleged prenuptial agreement was unconscionable in that itpurported
13 to fully exonerate Dong from any responsibility whatsoever for knowingly and
14 recklessly infecting Gwen with herpes and for breaching his resulting contractual
15 agreements—all in exchange for absolutely nothing.” Plaintiff's MPA 8:7-8.
16 Gwen here seems to be making the claim that the prenuptial agreement isunconscionable
17 because itlacks consideration. However, the Supreme Court has made itclear that “the
18 substantive fairness of a premarital agreement isnot open to examination unless the party
19 objecting to enforcement meets the demands of Family Code section 1615, subdivision (a)(2),”
20 which does nor include insufficient consideration or waiving liabilityfor tortsand breach of
21 contract. In reMarriage of Bonds, supra, at 29 (emphasis added). A premarital agreement “is
22 enforceable without consideration.” Family Code section 1611. Thus, this“claim” isirrelevant
23 and requires no evidence.
24 CONCLUSION
25 Gwen has thrown a laundry-list of charges together and stated her conclusion that she
26 must prove allof the facts of her liabilitycase (startingin 1992) in order to prove thatthe
27 premarital agreement she signed in 2000 isinvalid. She has made no attempt to link the evidence
28 she allegedly needs toprove to the claims she says she ismaking. In many cases, her statements
7
Low Offices of
STEVEN 8. PISER
DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAJ. ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
08-20-2004 14:28 FROM- @ @ T-395 P.009/010 F+908
1 of the claims themselves demonstrate that no evidence prior to 2000 would be relevant.
No doubt every party faced with a contractual release would liketo get their liabilitycase
to
before thejury in the hope thattheir asserted facts would influence thejury in determining
whether the release itselfisvalid. The case regarding the validity of the agreement can be triedin
less than a week. Itwould be ludicrous toopt fora four tosix week trialgiven that alternative.
This case should be bifurcated to trythe limited issue of the validity of the prenuptial agreement
HN
before any others.
SN
Respectfully submitted,
6S
Dated: August 20, 2004 LAW OFFICES OF STEVEN B. PISER
mo
A Professional Corporation
By:
en B. Piser
orney for Defendant
Douglas Sykes
LewOffices of
8
STEVEN
B. PISER
DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE
TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT
08-20-2004 14:28 FROM © @ T-305 P.ONO/010 = F-805
Sykes v.Sykes
Alameda County Superior Court Action No. RGO3 106840 & RGO3 106646
hN
PROOF OF SERVICE BY MAIL
Ww
I,Carole Aubuchon, declare as follows:
B&B
I am employed in Alameda County, California, am over eighteen years of age, and
am not a party to the within action or proceeding. My business address is499 Fourteenth
Street, Suite 210, Oakland, California 94612.
DW
SN
I served a copy of the following documents:
oO
DEFENDANT’S REPLY TO PLAINTIFF’S MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER GRANTING
Do
PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL
AGREEMENT
11
by placing said copy sealed in an envelope(s) addressed as follows:
12
Hab Siam
13 2921 South Winchester Blvd,
Campbell, Califomia 95008
14
15 with postage thereon fully prepaid, and thereafter was deposited inthe United States Mail
at Oakland, California, That there is a delivery service by the United States Mail at the
16 place addressed. That the date of deposit inthe mail was August 20, 2004.
17 I declare under penalty of perjury that the foregoing is true and correct. Executed
August 20, 2004, atOakland, California.
18
19
20
Carole Aubuchon ‘
21
22
23
24
25
26
27
28
Preview
@ = Menai ~ FILECOUDNTY 14:26 «FROM @ ~~ 08-20-2004 ALAMEDA STEVEN B. PISER, SBN 62414 LAW A OFFICES Professional OF STEVEN Corporation B. PISER AUG 20 2004 499 Fourteenth Oakland, Street, California Suite 94612 210 ByARTUF GIMS. Exec,Offclerk ld Telephone 510-835-5582 Attomey for Defendant in Douglas G. Sykes IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALAMEDA 10 GWEN R. SYKES, Case No. RG03 106646 Sumner? 1 ae Plaintiff, DEFENDANT’S REPLY TO “get” 12 PLAINTIFF’S MEMORANDUM OF Vv. cael” Nowa” “sae! Naren? POINTS AND AUTHORITIES IN , 13 OPPOSITION TO MOTION FOR ORDER DOUGLAS SYKES, an individual, DOES 1 GRANTING PRIOR SEPARATE TRIAL 14 through 20, inclusive, ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT Ness” Sees” 15 Defendants Date: August 26, 2004 ewe 16 Time: 9:00 a.m. Name! Dept: 136 17 Trial Date: October 1,2004 18 19 INTRODUCTION 20 Gwen devotes the majority of her opposition to the motion forbifircation (6 out of 8 21 pages) to arendition of the supposed “bad acts” of Doug throughout the years. None of itis 22 relevant to the issue before this court: whether the issue of the validity of the premarital 23 agreement Gwen indisputably signed should, inthe interests of justice and judicial economy, be weeny AG Legal By 24 tried before the other issues in the case. There is no dispute thata determination that the Filed XVa 25 agreement isvalid would end the case. One 26 Doug will not respond in detail to Gwen’s lengthy and irrelevant statement of facts. Much 27 of itis simply argument. Suffice itto say,Doug disputes many of the allegations made in Gwen’s 28 statement of facts and will produce evidence to refute them, ifnecessary, at trial.The issue 1 taw OFices of STEVEN 8. PISER DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT @ 7-395 «= P.003/010= F905 08-20-2004 = 14:26 FROM © before the court here, however, iswhether trialof those issues is necessary to determine the validity of an agreement. The answer is“no.” LEGAL ARGUMENT Gwen claims that allof the facts she alleges in her opposition briefare “essential” to prove both the invalidity of the prenuptial agreement and Doug’s underlying liability.See Plaintiff's Memorandum of Points and Authorities In Opposition To Motion For Order Granting DH Prior Separate Trial On Issue Of Validity Of Prenuptial Agreement (“Plaintiff'sMPA”) 7:5-6. NH She then sets forth a laundry listof allegations that she apparently claims will establish that the wa prenuptial agreement isinvalid, What she fails to do is offer any legal authority thather claims, if O60 proved, would establish the invalidity,or any explanation of why “allof the facts set forth above” oD are necessary to prove her claims. See Plaintiff'sMPA 7:8-8:9. Doug will address each ofthem in turn,but Gwen’s conclusory statement thatshe needs to prove every fact inher entire case (beginning in 1992) in order toestablish theinvalidity of theprenuptial agreement (executed in late 2000) issimply that: a conclusion unsupported by the evidence. Family Code section 1615 regulates the enforceability ofpremarital agreements. Jn re Marriage of Bonds (2000) 24 Cal.4th 1,15. A premarital agreement will be enforced unless the party resisting enforcement can demonstrate either (1) thathe or she did not enter into the contract voluntarily or (2) that the contract was unconscionable when entered into and that he or she did not have actual or constructive knowledge of the assets and obligations of the other party and did not voluntarily waive knowledge of such assets and obligations. ibid. A trialof Gwen’s numerous and ever-evolving claims isunnecessary to establish the validity or invalidity of the premarital agreement. . Claim: “Doug fraudulently induced Gwen to sign the prenuptial agreement through fraudulent misrepresentations, fraudulent concealment, fiduciary duty breaches, and undue influence....” Plaintiff's MPA 7:8-9. This claim is so broadly stated as tobe meaningless in the context ofshowing that allthe facts of Gwen’s case, from 1992 on, must be proved inorder to determine the validity of the premarital agreement, Nevertheless, Doug will attempt to meet it. 2 Law OHices of STEVEN B. PISER DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT 8-20-2004 14:26 FROM © @ 1-395 P.004/010 F-805 The “frauds” alleged by Gwen were that (1)Doug claimed he needed a prenuptial agreement for financial reasons whereas his real reason was to “fraudulently manufacture protection from the future contract and tortclaims” that he intended to repudiate in the future (see ws Plaintiff's MPA 4:17-5:7); (2) thathe toldher thatthe prenuptial agreement was “meaningless” & that itdidn’t change anything between them, and that itwould become effective only upon both wa an attorney’s review and signature and the consummation of their contemplated November 2000 OO marriage (see Plaintiff's MPA 4:27-5:3); and (3)that the release ofpast claims and a claim that “) no oral agreement existed was “buried” inthe agreement (see Plaintiff's MPA 5:7-8). While Doug disputes allof these claims,’ the relevant fact for thismotion isthat none of 10 these alleged frauds require evidence ofGwen's claims for personal injuries or alleged 11 contractual breaches. The good faith of these contentions is inquestion. Gwen testifiedthat she 12 took the contract to an independent attorney, who explained itto her—a factsurprisingly missing 13 from Gwen’s otherwise detailed version of the events. So whatever their past relationship, 14 agreements, injuries,etc., Gwen was actually informed contents of the agreement and 15 nevertheless returned a signed copy toDoug. The alleged events ofthe early 1990s prior tothe 16 negotiation and execution of the 2000 contract are irrelevant to determine the validity ofthe 1? agreement. 18 . Claim: “Gwen did not voluntarily execute the prenuptial agreement, as defined by 19 Family Code section 1615....” Plaintiffs MPA 7:11-12. 20 Is a decade-long history isnecessary toprove that Gwen’s execution of the prenuptial 21 agreement was not voluntary? No. 22 Many factors are relevant towhether a prenuptial agreement is voluntary: whether there is 23 coercion;” the presence or absence of independent counsel or the opportunity to consult one: 24 25 ' The first contention ismeaningless—a release of pastclaimsby itsnatureextinguishesany obligation.There can befo “futurerepudiation”of acontractualobligation thatdoes not exist.The second claimisirrelevant.Gwen 26 herselfadmitsthatshe consultedan independentattorneywho cxplainedthe agreement toher. The third claim is obviouslyuntrue. The courtcan review ExhibitA and seethatthe releaseandrepudiationof oralagreements isnot 27 “buried”in theagreement. 28 2 Coercion theuniquc contextof premaritalagreementsmay arisefrom theproximity of the wedding dateor 3 Law Offices af STEVEN 8, FISER DEFENDANT'S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT Y T-395 P.005/010 = F-905 08-20-2004 14:27 FROM~ r inequality of bargaining power, in some cases indicated by the relative age and sophistication of the parties; whether there was a full disclosure of assets; and the parties’ understanding of the ho rights being waived under the agreement or at leasttheir awareness of the intent ofthe agreement. tod In re Marriage of Bonds, supra, at 18. None ofthese factors ispresent here: Gwen has testified that Doug did not threaten her, the marrage date (according to her) was the next month. Gwen Wa could, and did, retain independent counsel. She was a mature woman, with a highly-paid and responsible job, two masters degrees, and experience with a previous, non-executed premarital ~ agreement. None of the factors relevant to voluntariness requires atrial of allof Gwen’s claims. Her 10 alleged herpes, her claims to have invested in the Alvarado Road property, Doug’s alleged Il promises throughout the years, etc. have nothing todo with whether she voluntarily and 12 knowingly waived rights she may have had in signing the premarital agreement. The only 13 question iswhether, atthe time she signed the agreement, she freely and knowingly did so. 14 . Claim: “Gwen made a mistake of fact when signing the prenuptial agreement, 15 which was induced by Doug’s intentionally false representation....” Plaintiff's 16 MPA 7:13-14. 17 Gwen does not specify what “mistake of fact” she allegedly made when signing the 18 prenuptial agreement and what “Doug’s intentionally falserepresentation” allegedly was, so itis 19 impossible to know the basis for her claim that “such mistake of factwill require proof of allof 20 the facts setforth above, which also prove Doug’s liability.” But, for the same reasons set forth 21 in response to the firstclaim (fraud), above, her alleged “mistake of fact” does not require a trial of allthe facts of the case. 23 . Claim: “the prenuptial agreement’s effectiveness was conditioned upon receiving 24 independent attorney’s signature, but that never happened...” Plaintiff's MPA 25 7:15-16. 26 27 surpriseinthepresentationof theagreement aswell astraditional means of coercion.See In reMarriage of Bonds, supra,at 18.. 28 4 Law Offices of STEVEN B. PISER DEFENDANT’S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT @ 7-385 P.006/010 = F-805 08-20-2004, 14:27 FROM @ Claim: “the prenuptial agreement’s effectiveness was conditioned vpon the November 2000 wedding, but that wedding never happened...” Plaintiff'sMPA WN 7:18-19. WwW Gwen claims that the contract had two “conditions precedent”: the signature ofan attomey > on the contract and aNovember 2000 wedding. Neither of these claims, even if they were valid, A would require proof of any events prior tothe negotiation of the 2000 contract. DH . Claim: “Gwen's actions in canceling the November 2000 wedding, moving out of “I Doug’s house, and terminating their relationship revoked and/or rescinded the co alleged prenuptial agreement....” Plaintiff'sMPA 7:20-21. Oo 10 Contracts may be rescinded or revoked on the grounds set forth in Civil Code section 11 1689, such as mistake, duress, menace, fraud or undue influence exercised by the party against 12 whom the contract is sought to be rescinded orlack of consideration, etc. Gwen’s actions in 13 allegedly canceling the November 2000 wedding are irrelevant to a claim of revocation or 14 rescission unless she had a basis for rescission, which she did not. Even ifshe did, evidence 15 relating to her actions in 2000 do not require a trialof the entire history of the parties’ 16 relationship, her alleged injuries, and their fmancial dealings. 17 . Claim: “the prenuptial agreement wasn’t applicable to the August 15, 2001 18 wedding and subsequent marriage...” Plaintiff's MPA 7:23-24. 19 There is nothing inthe prenuptial agreement that restrictsitto a particular wedding date. 20 The contract states that the parties agreed tothe terms of the contract “in consideration of their 21 contemplated marriage...” But even if theissue of whether the agreement was applicable only to 22 a particular wedding date must be tried,evidence relating to that issue could, at most, encompass 23 evidence relating to Doug and Gwen’s attempts to execute a premarital agreement, startingin the 24 lasthalf of 1999. Itwould nor require evidence as toGwen’s alleged herpes in 1992 and 25 thereafter, the house construction, theiralleged financial dealings, etc. 26 , Claim: “Doug never manifested any assent to any prenuptial agreement signed by 27 Gwen, and therefore a binding prenuptial agreement was never consummated...” 28 Plaintiff's MPA 7:25-26, 5 law Ditices of STEVEN 8. PISER DEFENDANT’S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT FROM @ @ T-305 -P.OO7/010«=F-805 08-20-2004 14:27 Defendant disputes the legal effect of thisargument, that even if a failure toreturn a & signed copy to Gwen had some legal significance, evidence ofthe non-return would not require N any evidence of theirprior history and the entirefacts ofthe case. HW . Claim: “the prenuptial agreement didn’t accurately reflect allof Doug’s assets or F&F their fullextent and value....” Plaintiff's MPA 8:1-2. WH There is no evidence thatthe prenuptial agreement does not accurately reflect allof A Doug’s assets or theirfull extent and value. Even if therewere such evidence, it would be N evidence that Doug owned property not listed inthe premarital agreement or that he we misrepresented their value. None of thatevidence would require testimony regarding Doug and iD Gwen’s relationship, her alleged herpes, theirrepeated quarrels, the building of the house on & Alvarado Road, etc. KY ° Claim: “as Gwen’s attorney and financial advisor, Doug breached his fiduciary PO eee duties to Gwen by trying to impose this prenuptial agreement on Gwen and by WY acting directly contrary to Gwen’s best interests...” Plaintiff’sMPA 8:3-4, SF Gwen claims that Doug was her attorney and “financia] advisor” and thus owed her a Hh fiduciary duty not to “impose” the prenuptial agreement on her and to act inher best interests. HR But there isno cause of action for breach of fiduciary duty. HS Furthermore, Doug disputes thathe was Gwen’s attorney for many years prior to the we execution of the prenuptial agreement or that he served as her “financial advisor. CO ”? Bur itis not necessary to try allthe facts of the case in order todetermine whether the agreement isinvalid on OBO RD this basis. DR YF In this case, even assuming Doug’s status as an alleged fiduciary is within the issues,there RD HB need not be a trialof all the factsin the case in the context of determining the validity of the WD RD prenuptial agreement. The fact isthat Gwen testified under oath that she consulted an RF RD independent attorney, chosen and paid for by her, who explained the contract to her. UV PR BOO OA 3 {tisclearthatGwen and Dong had nofiduciaryrelationship towards each otherby virtueof thefact that NN Bh theyintended tomarry. Jn reMarriage of Bonds,supra,at29. eo NI 6 Law Offices of STEVEN Bl. PISER DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT © @ J-305 =P.008/010 F905 08-20-2004 14:28 FROM- . Claim: “in February 2003, Doug himself didn’t believe in the now alleged ‘validity’ of hisprenuptial agreement...” Plaintiff's MPA 8:6. This claim is apparently based on the fact that atthe time Doug filedfor divorce he gave uo Gwen a proposed stipulation for settlement oftheir legal obligations to each other. Gwen fF contends that this resulted from Doup’s “[r]ecogni[tion of]the fatalflaws in hisallegedly ‘valid’ rH prenuptial agreement...” See Plaintiff'sMPA 6:19-23. First, this ismerely Gwen’s conclusion. DH Second, even itDoug did not believe the agreement was valid, itisirrelevant. The validityof an NN agreement isa matter of objective fact,not the belief of the parties—especially a belief claimed to co have been held after the contract was signed. Finally, and most relevant to this motion, evidence Oo 10 of what Doug believed in2003-three years afterthe agreement was signed—obviously does not ia require a trialof all the claims inthe liabilitycase. 12 . Claim: “the alleged prenuptial agreement was unconscionable in that itpurported 13 to fully exonerate Dong from any responsibility whatsoever for knowingly and 14 recklessly infecting Gwen with herpes and for breaching his resulting contractual 15 agreements—all in exchange for absolutely nothing.” Plaintiff's MPA 8:7-8. 16 Gwen here seems to be making the claim that the prenuptial agreement isunconscionable 17 because itlacks consideration. However, the Supreme Court has made itclear that “the 18 substantive fairness of a premarital agreement isnot open to examination unless the party 19 objecting to enforcement meets the demands of Family Code section 1615, subdivision (a)(2),” 20 which does nor include insufficient consideration or waiving liabilityfor tortsand breach of 21 contract. In reMarriage of Bonds, supra, at 29 (emphasis added). A premarital agreement “is 22 enforceable without consideration.” Family Code section 1611. Thus, this“claim” isirrelevant 23 and requires no evidence. 24 CONCLUSION 25 Gwen has thrown a laundry-list of charges together and stated her conclusion that she 26 must prove allof the facts of her liabilitycase (startingin 1992) in order to prove thatthe 27 premarital agreement she signed in 2000 isinvalid. She has made no attempt to link the evidence 28 she allegedly needs toprove to the claims she says she ismaking. In many cases, her statements 7 Low Offices of STEVEN 8. PISER DEFENDANT’S REPLY TO PLAINTIFF’S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAJ. ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT 08-20-2004 14:28 FROM- @ @ T-395 P.009/010 F+908 1 of the claims themselves demonstrate that no evidence prior to 2000 would be relevant. No doubt every party faced with a contractual release would liketo get their liabilitycase to before thejury in the hope thattheir asserted facts would influence thejury in determining whether the release itselfisvalid. The case regarding the validity of the agreement can be triedin less than a week. Itwould be ludicrous toopt fora four tosix week trialgiven that alternative. This case should be bifurcated to trythe limited issue of the validity of the prenuptial agreement HN before any others. SN Respectfully submitted, 6S Dated: August 20, 2004 LAW OFFICES OF STEVEN B. PISER mo A Professional Corporation By: en B. Piser orney for Defendant Douglas Sykes LewOffices of 8 STEVEN B. PISER DEFENDANT'S REPLY TO PLAINTIFF'S OPPOSITION MPA TO MOTION FOR ORDER GRANTING PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT 08-20-2004 14:28 FROM © @ T-305 P.ONO/010 = F-805 Sykes v.Sykes Alameda County Superior Court Action No. RGO3 106840 & RGO3 106646 hN PROOF OF SERVICE BY MAIL Ww I,Carole Aubuchon, declare as follows: B&B I am employed in Alameda County, California, am over eighteen years of age, and am not a party to the within action or proceeding. My business address is499 Fourteenth Street, Suite 210, Oakland, California 94612. DW SN I served a copy of the following documents: oO DEFENDANT’S REPLY TO PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER GRANTING Do PRIOR SEPARATE TRIAL ON ISSUE OF VALIDITY OF PRENUPTIAL AGREEMENT 11 by placing said copy sealed in an envelope(s) addressed as follows: 12 Hab Siam 13 2921 South Winchester Blvd, Campbell, Califomia 95008 14 15 with postage thereon fully prepaid, and thereafter was deposited inthe United States Mail at Oakland, California, That there is a delivery service by the United States Mail at the 16 place addressed. That the date of deposit inthe mail was August 20, 2004. 17 I declare under penalty of perjury that the foregoing is true and correct. Executed August 20, 2004, atOakland, California. 18 19 20 Carole Aubuchon ‘ 21 22 23 24 25 26 27 28