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Sara M. Knowles (SBN 216139)
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LELAND, MORRISSEY & KNOWLES LLP I
1660 Humboldt Road, Suite 6
9/23/2020
Chico, CA 95928
Telephone: (530) 342-4500
Facsimile: (530) 345-6836
Attorney for Conservator John Denton for Defendant and
Cross-Complainant Edward F. Niderost, Individually and as
Trustee of the Edward F. Niderost Revocable Living Trust
Dated November 8, 1998
SUPERIOR COURT 0F CALIFORNIA,
COUNTY OF BUTTE
WAYNE A. COOK, TRUSTEE OF THE CASE NO. 20CV00905
WAYNE A. COOK 1998 FAMILY TRUST
DATED 12/29/98, NOTICE OF EX PARTE APPLICATION
AND EX PARTE APPLICATION FOR
Plaintiff, COURT ORDER REGARDING
APPOINTMENT OF GUARDIAN AD
V. LITEM; MEMORANDUM OF POINTS
AND AUTHORITIES; DECLARATION
EDWARD F. NIDEROST, INDIVIDUALLY OF SARA M. KNOWLES; [PROPOSED]
AND AS TRUSTEE OF THE EDWARD F. ORDER
NDDEROST REVOCABLE LIVING TRUST
DATED NOVEMBER 8, 1998, DOES 1 Hearing Date: September 24, 2020
THROUGH 10, Time: 4:00 P.M.
Dept: TBD
Defendants.
AND RELATED CROS S—ACTION
PLEASE TAKE NOTICE that John Denton, conservator for Defendant and Cross
Complainant Edward F. Niderost, trustee of the Edward F. Niderost Revocable Living Trust,
dated November 8, 1998 (“Conservator”)’s Ex Parte Application for Court Order Regarding
Appointment of Guardian Ad Litem shall be presented on September 24, 2020 at 4:00 P.M. at
the Butte County Superior Court, located at 1775 Concord Avenue, Chico, California, or on such
other date and time that the Court deems appropriate.
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NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED]
ORDER
Conservator’s Ex Parte Application for Court Order Regarding Appointment of Guardian
Ad Litem shall be based upon the Memorandum of Points and Authorities in support thereof
submitted herewith, the Declaration of Sara M. Knowles in support thereof submitted herewith,
as well as the Declaration of John Denton.
The relief requested thereby is for a Court order appointing Guardian Ad Litem for
Edward F. Niderost.
EX PARTE APPLICATION FOR COURT ORDER
Application is hereby made for an Order appointing Guardian Ad Litem of the Estate of
Edward F. Niderost.
1. This Application is made on the grounds that, without such orders, the interests of
Edward F. Niderost cannot be protected. The Estate of Edward F. Niderost is subj ect to a
conservatorship, led in Butte County Superior Court Case No. 20PR00122. John Denton is the
Conservator, but he is also the successor trustee of the Edward F. Niderost Revocable Trust.
2. Raymond Sandelman, attorney for Wayne Cook, Trustee of the Wayne A. Cook
1998 Family Trust Dated 12/29/98 is seeking to depose Mr. Niderost. Clayton Anderson
represents Mr. Niderost in the conservatorship action only. Mr. Niderost does not have counsel
in this matter. Mr. Denton proposes that one of the following attorneys serve as Guardian Ad
Litem: Erwin Williams (530) 877-4961 or Ronald Marquez (530) 332-81 10.
3. The contact information for the attorneys involved are as follows:
A. Raymond Sandelman representing Wayne A. Cook, Trustee of the Wayne A.
Cook 1998 Family Trust Dated 12/29/98
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
(530) 343-5090
B. Clayton Anderson, representing Edward F. Niderost in the Conservatorship matter
only
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NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED]
ORDER
Jacobs, Anderson, Potter & Chaplin, LLP
20 Independence Circle
Chico, CA 95973
(530) 342-6144
C. David Grifth, representing Gene Culley
Grifth Horn & Sheehan, LLP
1530 Humboldt Road, Suite 3
Chico, CA 95928
(530) 812-1 000
D. Larry Lushanko, representing Laurence Patterson
1241 E. Mission Road
Fallbrook, CA 92028
(760) 728-9899
4. There have been no ex parte applications, or any subsequent application of the
same character or for the same relief.
Respectfully submitted,
LELAND, MORRISSEY & KNOWLES LLP
Dated: September 23, 2020 A m . ea/Lg»
ara M. Knowles
Attorney for Conservator John Denton for
Defendant and Cross-Complainant Edward F.
Niderost, Individually and as Trustee of the Edward
F. Niderost Revocable Living Trust Dated
November 8, 1998
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NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED]
ORDER
MEMORANDUM OF POINTS AND AUTHORITIES
I. Background
On April 23, 2020, this Court appointed John Denton as the temporary conservator of the
Estate of Edward F. Niderost. On or about that time, litigation was led against Edward F.
Niderost in his capacity as the trustee of the Edward F. Niderost Recovable Living Trust by
Wayne Cook as Butte County Case Number 20CV00905. The Court, upon application by Mr.
Denton on June 4, 2020 appointed Mr. Denton as successor trustee of the Edward F. Niderost
Revocable Living Trust dated November 8, 1998. Counsel for Wayne Cook intends to take the
deposition of Mr. Niderost, who currently is scheduled for shoulder surgery September 30, and
has a bladder infection. Mr. Cook’s counsel seeks an order to forcibly enter the home of the
elderly and unwell Mr. Niderost to serve him with a deposition subpoena. Mr. Niderost’s spouse
and Mr. Denton, assert that Mr. Niderost is not cognitively able to undergo a deposition. A
guardian ad litem must be appointed to protect the interests of Mr. Niderost. The conservator
proposes that the Court appoint either Erwin Williams (530) 877-4961 or Ron Marquez (S30)
332-81 10. Both are local attorneys who are well versed in this area of law.
II. Legal Argument
A. The Court Must Appoint a Guardian Ad Litem for Edward F. Niderost to Defend
any Deposition and to Represent his Best Interests.
For the purposes of appointment of a guardian ad litem, a party is incompetent if he or
she lacks capacity to understand the nature or consequences of the proceeding, or is unable to
assist counsel in the preparation of the case. AT & T Mobility, LLC v. Yeager, (2015) ED Cal.
201 5, 143 Sup.3d 1042. CCP section 372 provides that when a person lacking legal capacity to
make decisions or a person for whom a conservator has been appointed is a party, “That person
shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed
by the court.” This section denes an incompetent person to include a person for whom a
conservator has been appointed. An adult is incompetent if, by a preponderance of the evidence,
it is shown that the individual is either 1) a person for whom a conservator could be appointed, as
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NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED]
ORDER
set forth by Probate Code section 1801, or 2) unable to understand the proceedings or effectively
assist his or her attorney in protecting his or her interests, as set forth by Penal Code section
1367. Sarracz'no v. Superior Court (1974) 13 Cal. 3d 1, 11-12.
On April 23, 2020 this Court appointed John Denton as the conservator of the Estate of
Edward F. Niderost in Butte County Case No. 20PR00122. 0n June 4, 2020, Mr. Denton was
appointed the successor trustee of the Edward F. Niderost Revocable Living trust dated
November 8, 1996 in that same case. Mr. Niderost is clearly an incompetent person pursuant to
the denition of CCP section 372, and therefore a guardian ad litem must be appointed for him.
B. Exigent Circumstances Exist Which Require That The Court Grant This
Request 0n An Ex Parte Basis.
Raymond Sandelman has noticed an ex parte application seeking an order from the Court
that Edward F. Niderost may be forcibly served. In order to protect Mr. Niderost, who is elderly,
ill and not of competent mind, a guardian ad litem must be appointed immediately. If a guardian
ad litem is not appointed on an ex parte basis, Mr. Niderost may be required to sit for a
deposition without having counsel present, and may be forced to give testimony in a manner
when he is not competent to do so. Shoald this occur, the interests of Mr. Niderost will be
irreparably damaged in that he will not have adequate counsel to assist him and this will
negatively affect the litigation now pending. Such litigation includes claims of elder abuse by
the Plaintiff herein.
III. Conclusion
For ie reasons setforth herein, it is respectfully requested that the Court appoint a
guardian ad litem and order that any deposition not commence for a period of 30 days to allow
Mr. Niderost’s guardian ad litem sufcient time to prepare.
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NOTICE OF EX PARTB APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED]
ORDER
Respectfully submitted,
LELAND, MORRISSEY & KNOWLES LLP
Dated: September 23, 2020 A5. M " M‘- (5M8
ara M. Knowles
Attorney for Conservator John Denton for
Defendant and Cross-Complainant Edward F.
Niderost, Individually and as Trustee of the Edward
F. Niderost Revocable Living Trust Dated
November 8, 1998
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NOTICE 0F EX PAR'I'E APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED]
ORDER
DECLARATION 0F SARA M. KNOWLES
I, Sara M. Knowles, declare as follows:
1. I am an attorney at law duly licensed to practice before all the Courts of the State
of California and am a partner with Leland, Morrissey & Knowles, LLP, attorneys of record for
Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost,
Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November
8, 1998.
2. If called upon as a witness to testify to any of the facts contained herein, I could
and would testify competently thereto.
3. I make this Declaration in support of the Ex Parte Application for Court Order
Regarding Appointment of Guardian Ad Litem
4. At 8:48 am Raymond Sandelman, attorney for Wayne A. Cook, Trustee of the
Wayne A. Cook 1998 Family trust dated 12/29/98 emailed me notice that he was seeking an ex
parte order to have Edward F. Niderost served with a deposition subpoena pursuant to CCP
section 1988 by the Butte County Sheri‘ and that the Sheriff could break into 1077 Via Verona
Drive, Chico, CA in order to serve Mr. Niderost.
5. I responded to Mr. Sandelman and advised him that I would be seeking an ex
parte order to have a guardian ad litem appointed for Mr. Niderost, which such individual
authorized to accept service on behalf of Mr. Niderost.
6. I have communicated with Mr. Niderost’s spouse, Yolanda Niderost. She reports
_
that her spouse is not cognitively able to understand the proceedings, he currently has a bladder
infection and he is scheduled for shoulder surgery on September 30, 2020. She indicated that
Mr. Niderost has been in a great deal of pain and has been unable to sleep. Mrs, Niderost also
represented that Mr. Niderost’s physician, Dr. Foster, recently conducted a mental evaluation of
Mr. Niderost and that the results were “not good”.
7. Dr. Foster’s ofce has been in communication with my ofce, and has reported
that Mr. Niderost could barely stand, and that he should not be driving a vehicle.
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NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F
GUARDIAN AD LITEM; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED]
ORDER
8. I have communicated with Clayton Anderson, the attorney appointed for Mr.
Niderost with respect to the conservator action (Butte County Case Number: 20PR00122). Mr.
Anderson, who is recovering from back surgery, advised that in his opinion Mr. Niderost is not
competent to sit for a deposition. He also specied that he supported the application of a
guardian ad litem for Mr. Niderost in this matter to protect Mr. Niderost.
9. I have contacted two local attorneys to ascertain if they would be willing to serve
as Mr. Niderost’s guardian ad litem in this matter. Those attorneys are Erwin Williams ((530)
877—4961) and Ron Marquez ((530) 332-81 10). Mr. Williams indicated he was available for the
appointment, but that he would need time to clear his schedule to prepare for a deposition (if one
was to occur) and to get up to speed in this case. As of the signing ofthis declaration, I have not
heard back from Mr. Marquez.
I declare under penalty of perjury under the laws of the state of California that the
foregoing is true and correct.
Respectfully submitted,
LELAND, MORRISSEY & KNOWLES LLP
Dated September 23, 2020
a; b
Sara M. Knowles
”x l
Attorney for Conservator John Denton for
Defendant and Cross-Complainant Edward F.
Niderost, Individually and as Trustee of the Edward
F. Niderost Revocable Living Trust Dated
November 8, 1998
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NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF
GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED]
ORDER
Sara M. Knowles (SBN 216139)
LELAND, MORRISSEY & KNOWLESLLP
1660 Humboldt Road, Suite 6
Chico, CA 95928
Telephone: (530) 342-4500
Facsimile: (530) 345-6836
Attorney for Conservator John Denton for Defendant and
Cross-Complainant Edward F. Niderost, Individually and as
Trustee of the Edward F. Niderost Revocable Living Trust
Dated November 8, 1998
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
WAYNE A. COOK, TRUSTEE OF TEE ) CASE NO. 20CV00905
WAYNE A. COOK 1998 FAMILY TRUST )
DATED 12/29/98, ) [PROPOSED] ORDER APPOINTING
) GUARDIAN AD LITEM
Plainti', )
)
v. ) Hearing Date: September 24, 2020
) Time: 4:00 P.M.
EDWARD F. NIDEROST, INDIVIDUALLY ) Dept; TBD
NIDEROST REVOCABLE LIVING TRUST )
DATED NOVEMBER 8, 1998, DOES 1 )
THROUGH 10, )
)
Defendants.
g
AND RELATED CROSS-ACTION
On the reading of the lings and evidence consisting of Petitioner’s Ex Parte Application
for Court Order Regarding Appointment of Guardian Ad Litem, the Memorandum of Points and
Authorities in support thereof, the Declaration of Sara M. Knowles and the Declaration of John
Denton in support thereof, and the likelihood of irreparable injury have been shown:
IT IS HEREBY ORDERED that shall be appointed as guardian
ad litem for Edward F. Niderost, and be reimbursed reasonable compensation in the amount of
per hour.
IT IS ORDERED:
Judge of the Superior Court
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[PROPOSED] ORDER APPOINTING GUARDIAN AD LITEM
PROOF OF SERVICE
I, Sarah Vercruysse, declare:
am a citizen of the United States and a resident of Butte County, State of
|
California. l am over the age of 18 years and not a party to the within action. My
business address is 1660 Humboldt Road, Suite 6, Chico, CA 95928.
am familiar with the practices of Leland, Morrissey & Knowles LLP whereby each
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document is placed in an envelope. the envelope is sealed, the appropriate postage is
placed thereon and the sealed envelope is placed in the ofce mail receptacle. Each
day’s mail is collected and deposited in a U.S. mailbox at or before the close of each
day’s business.
On the date shown below, l caused to be served the NOTICE OF EX PARTE
APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING
APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER
by:
é MAIL: Placed in the United States mail at Chico, California, addressed as
follows:
Raymond Sandelman
196 Cohasset Road, Suite 225
Chico, CA 95926-2284
Ravmond@sandelmanlaw.com
Clayton Anderson
Jacobs, Anderson, Potter & Chaplin, LLP
20 Independence Circle
Chico, CA 95973
canderson@japc-law.com
||><
David Grifth
Grifth Horn & Sheehan, LLP
1530 Humboldt Road, Suite 3
Chico, CA 95928
david@davidgriithlaw.com
Larry Lushanko
1241 E. Mission Road
Fallbrook, CA 92028
oice@lushankolaw.com
ELECTRONIC SERWCE: Complying with Code of Civil Procedure § 1010.6,
my electronic business address is svercruyssemchicolamer.com and I caused such
document to be electronically served through electronic mail for the above-entitled
PROOF OF SERVICE
case. The Read Receipt transmission was reported as complete and a copy of the
Read Receipt will be maintained with the original document in our ofce:
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on September 23, 2020, at Chico, California.
garah Vercruysse a
D
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PROOF OF SERVICE
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Baud bf Summit Sara M. Knowles (SBN 216139) Supar' F Count! 0f Bum LELAND, MORRISSEY & KNOWLES LLP I 1660 Humboldt Road, Suite 6 9/23/2020 Chico, CA 95928 Telephone: (530) 342-4500 Facsimile: (530) 345-6836 Attorney for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 SUPERIOR COURT 0F CALIFORNIA, COUNTY OF BUTTE WAYNE A. COOK, TRUSTEE OF THE CASE NO. 20CV00905 WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98, NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR Plaintiff, COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD V. LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION EDWARD F. NIDEROST, INDIVIDUALLY OF SARA M. KNOWLES; [PROPOSED] AND AS TRUSTEE OF THE EDWARD F. ORDER NDDEROST REVOCABLE LIVING TRUST DATED NOVEMBER 8, 1998, DOES 1 Hearing Date: September 24, 2020 THROUGH 10, Time: 4:00 P.M. Dept: TBD Defendants. AND RELATED CROS S—ACTION PLEASE TAKE NOTICE that John Denton, conservator for Defendant and Cross Complainant Edward F. Niderost, trustee of the Edward F. Niderost Revocable Living Trust, dated November 8, 1998 (“Conservator”)’s Ex Parte Application for Court Order Regarding Appointment of Guardian Ad Litem shall be presented on September 24, 2020 at 4:00 P.M. at the Butte County Superior Court, located at 1775 Concord Avenue, Chico, California, or on such other date and time that the Court deems appropriate. l NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER Conservator’s Ex Parte Application for Court Order Regarding Appointment of Guardian Ad Litem shall be based upon the Memorandum of Points and Authorities in support thereof submitted herewith, the Declaration of Sara M. Knowles in support thereof submitted herewith, as well as the Declaration of John Denton. The relief requested thereby is for a Court order appointing Guardian Ad Litem for Edward F. Niderost. EX PARTE APPLICATION FOR COURT ORDER Application is hereby made for an Order appointing Guardian Ad Litem of the Estate of Edward F. Niderost. 1. This Application is made on the grounds that, without such orders, the interests of Edward F. Niderost cannot be protected. The Estate of Edward F. Niderost is subj ect to a conservatorship, led in Butte County Superior Court Case No. 20PR00122. John Denton is the Conservator, but he is also the successor trustee of the Edward F. Niderost Revocable Trust. 2. Raymond Sandelman, attorney for Wayne Cook, Trustee of the Wayne A. Cook 1998 Family Trust Dated 12/29/98 is seeking to depose Mr. Niderost. Clayton Anderson represents Mr. Niderost in the conservatorship action only. Mr. Niderost does not have counsel in this matter. Mr. Denton proposes that one of the following attorneys serve as Guardian Ad Litem: Erwin Williams (530) 877-4961 or Ronald Marquez (530) 332-81 10. 3. The contact information for the attorneys involved are as follows: A. Raymond Sandelman representing Wayne A. Cook, Trustee of the Wayne A. Cook 1998 Family Trust Dated 12/29/98 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 (530) 343-5090 B. Clayton Anderson, representing Edward F. Niderost in the Conservatorship matter only 2 NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER Jacobs, Anderson, Potter & Chaplin, LLP 20 Independence Circle Chico, CA 95973 (530) 342-6144 C. David Grifth, representing Gene Culley Grifth Horn & Sheehan, LLP 1530 Humboldt Road, Suite 3 Chico, CA 95928 (530) 812-1 000 D. Larry Lushanko, representing Laurence Patterson 1241 E. Mission Road Fallbrook, CA 92028 (760) 728-9899 4. There have been no ex parte applications, or any subsequent application of the same character or for the same relief. Respectfully submitted, LELAND, MORRISSEY & KNOWLES LLP Dated: September 23, 2020 A m . ea/Lg» ara M. Knowles Attorney for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 3 NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED] ORDER MEMORANDUM OF POINTS AND AUTHORITIES I. Background On April 23, 2020, this Court appointed John Denton as the temporary conservator of the Estate of Edward F. Niderost. On or about that time, litigation was led against Edward F. Niderost in his capacity as the trustee of the Edward F. Niderost Recovable Living Trust by Wayne Cook as Butte County Case Number 20CV00905. The Court, upon application by Mr. Denton on June 4, 2020 appointed Mr. Denton as successor trustee of the Edward F. Niderost Revocable Living Trust dated November 8, 1998. Counsel for Wayne Cook intends to take the deposition of Mr. Niderost, who currently is scheduled for shoulder surgery September 30, and has a bladder infection. Mr. Cook’s counsel seeks an order to forcibly enter the home of the elderly and unwell Mr. Niderost to serve him with a deposition subpoena. Mr. Niderost’s spouse and Mr. Denton, assert that Mr. Niderost is not cognitively able to undergo a deposition. A guardian ad litem must be appointed to protect the interests of Mr. Niderost. The conservator proposes that the Court appoint either Erwin Williams (530) 877-4961 or Ron Marquez (S30) 332-81 10. Both are local attorneys who are well versed in this area of law. II. Legal Argument A. The Court Must Appoint a Guardian Ad Litem for Edward F. Niderost to Defend any Deposition and to Represent his Best Interests. For the purposes of appointment of a guardian ad litem, a party is incompetent if he or she lacks capacity to understand the nature or consequences of the proceeding, or is unable to assist counsel in the preparation of the case. AT & T Mobility, LLC v. Yeager, (2015) ED Cal. 201 5, 143 Sup.3d 1042. CCP section 372 provides that when a person lacking legal capacity to make decisions or a person for whom a conservator has been appointed is a party, “That person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court.” This section denes an incompetent person to include a person for whom a conservator has been appointed. An adult is incompetent if, by a preponderance of the evidence, it is shown that the individual is either 1) a person for whom a conservator could be appointed, as 4 NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED] ORDER set forth by Probate Code section 1801, or 2) unable to understand the proceedings or effectively assist his or her attorney in protecting his or her interests, as set forth by Penal Code section 1367. Sarracz'no v. Superior Court (1974) 13 Cal. 3d 1, 11-12. On April 23, 2020 this Court appointed John Denton as the conservator of the Estate of Edward F. Niderost in Butte County Case No. 20PR00122. 0n June 4, 2020, Mr. Denton was appointed the successor trustee of the Edward F. Niderost Revocable Living trust dated November 8, 1996 in that same case. Mr. Niderost is clearly an incompetent person pursuant to the denition of CCP section 372, and therefore a guardian ad litem must be appointed for him. B. Exigent Circumstances Exist Which Require That The Court Grant This Request 0n An Ex Parte Basis. Raymond Sandelman has noticed an ex parte application seeking an order from the Court that Edward F. Niderost may be forcibly served. In order to protect Mr. Niderost, who is elderly, ill and not of competent mind, a guardian ad litem must be appointed immediately. If a guardian ad litem is not appointed on an ex parte basis, Mr. Niderost may be required to sit for a deposition without having counsel present, and may be forced to give testimony in a manner when he is not competent to do so. Shoald this occur, the interests of Mr. Niderost will be irreparably damaged in that he will not have adequate counsel to assist him and this will negatively affect the litigation now pending. Such litigation includes claims of elder abuse by the Plaintiff herein. III. Conclusion For ie reasons setforth herein, it is respectfully requested that the Court appoint a guardian ad litem and order that any deposition not commence for a period of 30 days to allow Mr. Niderost’s guardian ad litem sufcient time to prepare. // I! l/ f! 5 NOTICE OF EX PARTB APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER Respectfully submitted, LELAND, MORRISSEY & KNOWLES LLP Dated: September 23, 2020 A5. M " M‘- (5M8 ara M. Knowles Attorney for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 6 NOTICE 0F EX PAR'I'E APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER DECLARATION 0F SARA M. KNOWLES I, Sara M. Knowles, declare as follows: 1. I am an attorney at law duly licensed to practice before all the Courts of the State of California and am a partner with Leland, Morrissey & Knowles, LLP, attorneys of record for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998. 2. If called upon as a witness to testify to any of the facts contained herein, I could and would testify competently thereto. 3. I make this Declaration in support of the Ex Parte Application for Court Order Regarding Appointment of Guardian Ad Litem 4. At 8:48 am Raymond Sandelman, attorney for Wayne A. Cook, Trustee of the Wayne A. Cook 1998 Family trust dated 12/29/98 emailed me notice that he was seeking an ex parte order to have Edward F. Niderost served with a deposition subpoena pursuant to CCP section 1988 by the Butte County Sheri‘ and that the Sheriff could break into 1077 Via Verona Drive, Chico, CA in order to serve Mr. Niderost. 5. I responded to Mr. Sandelman and advised him that I would be seeking an ex parte order to have a guardian ad litem appointed for Mr. Niderost, which such individual authorized to accept service on behalf of Mr. Niderost. 6. I have communicated with Mr. Niderost’s spouse, Yolanda Niderost. She reports _ that her spouse is not cognitively able to understand the proceedings, he currently has a bladder infection and he is scheduled for shoulder surgery on September 30, 2020. She indicated that Mr. Niderost has been in a great deal of pain and has been unable to sleep. Mrs, Niderost also represented that Mr. Niderost’s physician, Dr. Foster, recently conducted a mental evaluation of Mr. Niderost and that the results were “not good”. 7. Dr. Foster’s ofce has been in communication with my ofce, and has reported that Mr. Niderost could barely stand, and that he should not be driving a vehicle. 7 NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT 0F GUARDIAN AD LITEM; MEMORANDUM 0F POINTS AND AUTHORITIES; DECLARATION 0F SARA M. KNOWLES; [PROPOSED] ORDER 8. I have communicated with Clayton Anderson, the attorney appointed for Mr. Niderost with respect to the conservator action (Butte County Case Number: 20PR00122). Mr. Anderson, who is recovering from back surgery, advised that in his opinion Mr. Niderost is not competent to sit for a deposition. He also specied that he supported the application of a guardian ad litem for Mr. Niderost in this matter to protect Mr. Niderost. 9. I have contacted two local attorneys to ascertain if they would be willing to serve as Mr. Niderost’s guardian ad litem in this matter. Those attorneys are Erwin Williams ((530) 877—4961) and Ron Marquez ((530) 332-81 10). Mr. Williams indicated he was available for the appointment, but that he would need time to clear his schedule to prepare for a deposition (if one was to occur) and to get up to speed in this case. As of the signing ofthis declaration, I have not heard back from Mr. Marquez. I declare under penalty of perjury under the laws of the state of California that the foregoing is true and correct. Respectfully submitted, LELAND, MORRISSEY & KNOWLES LLP Dated September 23, 2020 a; b Sara M. Knowles ”x l Attorney for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 7 NOTICE 0F EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER Sara M. Knowles (SBN 216139) LELAND, MORRISSEY & KNOWLESLLP 1660 Humboldt Road, Suite 6 Chico, CA 95928 Telephone: (530) 342-4500 Facsimile: (530) 345-6836 Attorney for Conservator John Denton for Defendant and Cross-Complainant Edward F. Niderost, Individually and as Trustee of the Edward F. Niderost Revocable Living Trust Dated November 8, 1998 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE WAYNE A. COOK, TRUSTEE OF TEE ) CASE NO. 20CV00905 WAYNE A. COOK 1998 FAMILY TRUST ) DATED 12/29/98, ) [PROPOSED] ORDER APPOINTING ) GUARDIAN AD LITEM Plainti', ) ) v. ) Hearing Date: September 24, 2020 ) Time: 4:00 P.M. EDWARD F. NIDEROST, INDIVIDUALLY ) Dept; TBD NIDEROST REVOCABLE LIVING TRUST ) DATED NOVEMBER 8, 1998, DOES 1 ) THROUGH 10, ) ) Defendants. g AND RELATED CROSS-ACTION On the reading of the lings and evidence consisting of Petitioner’s Ex Parte Application for Court Order Regarding Appointment of Guardian Ad Litem, the Memorandum of Points and Authorities in support thereof, the Declaration of Sara M. Knowles and the Declaration of John Denton in support thereof, and the likelihood of irreparable injury have been shown: IT IS HEREBY ORDERED that shall be appointed as guardian ad litem for Edward F. Niderost, and be reimbursed reasonable compensation in the amount of per hour. IT IS ORDERED: Judge of the Superior Court l [PROPOSED] ORDER APPOINTING GUARDIAN AD LITEM PROOF OF SERVICE I, Sarah Vercruysse, declare: am a citizen of the United States and a resident of Butte County, State of | California. l am over the age of 18 years and not a party to the within action. My business address is 1660 Humboldt Road, Suite 6, Chico, CA 95928. am familiar with the practices of Leland, Morrissey & Knowles LLP whereby each l document is placed in an envelope. the envelope is sealed, the appropriate postage is placed thereon and the sealed envelope is placed in the ofce mail receptacle. Each day’s mail is collected and deposited in a U.S. mailbox at or before the close of each day’s business. On the date shown below, l caused to be served the NOTICE OF EX PARTE APPLICATION AND EX PARTE APPLICATION FOR COURT ORDER REGARDING APPOINTMENT OF GUARDIAN AD LITEM; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF SARA M. KNOWLES; [PROPOSED] ORDER by: é MAIL: Placed in the United States mail at Chico, California, addressed as follows: Raymond Sandelman 196 Cohasset Road, Suite 225 Chico, CA 95926-2284 Ravmond@sandelmanlaw.com Clayton Anderson Jacobs, Anderson, Potter & Chaplin, LLP 20 Independence Circle Chico, CA 95973 canderson@japc-law.com ||>< David Grifth Grifth Horn & Sheehan, LLP 1530 Humboldt Road, Suite 3 Chico, CA 95928 david@davidgriithlaw.com Larry Lushanko 1241 E. Mission Road Fallbrook, CA 92028 oice@lushankolaw.com ELECTRONIC SERWCE: Complying with Code of Civil Procedure § 1010.6, my electronic business address is svercruyssemchicolamer.com and I caused such document to be electronically served through electronic mail for the above-entitled PROOF OF SERVICE case. The Read Receipt transmission was reported as complete and a copy of the Read Receipt will be maintained with the original document in our ofce: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on September 23, 2020, at Chico, California. garah Vercruysse a D l PROOF OF SERVICE