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Raymond L. Sandelman SBN 078020 F Sm“ CM
F
mmdmm
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Attorney at Law I I
196 Cohasset Road, Suite 225 L 10/15/2020 L
Chico, CA 95926—2284 E E
(530) 343—5090 / (530) 343~5091 (FAX) D D
Email:Raymond@sandelmanlaw.com
By ”will!
Attorney for Wayne A. Cook, individually
And as Trustee of The Wayne A. Cook 1998
Family Trust Dated 12/29/98
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF BUTTE
WAYNE A. COOK, TRUSTEE OF THE NO.: 20CVOO905
WAYNE A. COOK 1998 FAMILY
TRUST DATED 12/29/98, PLAINTIFF’S MEMORANDUM OF POINTS
Plaintiff, AND AUTHORITIES RE: APPLICATION
FOR APPOINTMENT OF A GUARDIAN AD
v. LITEM
EDWARD F. NIDEROST ’ er. a1. ’ Hearing Date: 10/28/2020
Hearing Time: 9:00 a.m.
Defendants. Department: 1
Judge: Tamara Mosbarger
/
Date of Complaint: 4/22/2020
AND RELATED CRoss COMPLAINTS Trial Date: None 56‘
_
/
1. There Is No Articulation As To What The Guardian Ad Litem Is To Do In This Litigation.
Plaintiff’s counsel was served an Application for Appointment of a Guardian Ad Litem. The
online register of actions does not show that this document was filed with the Court. The Application
does not clearly articulate what the guardian ad litem is to do in this litigation. Leland, Morrissey &
Knowles LLP have filed an Answer and Cross Complaint asserting that they are the attorney for
Edward Niderost. This fact was discussed by the Judge Pro Tem and counsel at the hearing on
September 24, 2020. Nothing has changed since then.
1
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR
APPOINTMENT OF A GUARDlAN AD LITEM
John Denton has filed an Answer and Cross Complaint also alleging that he is the conservator
of the estate and the successor trustee. If Mr. Niderost, his conservator, and trustee are already
196 COHASSET ROAD, SUITE 225, CHICO, CA 95926-2284
represented by counsel, there seems to be no need for a guardian ad litem. If a guardian ad litem is
(530) 343-5090 / (530) 343—5091 (FAX)
appointment, the duties and responsibilities should be clearly articulated. It would be inappropriate
RAYMOND L. SANDELMAN
for Mr. Niderost to have a dual status in the litigation both as an individual and also through his
ATTORNEY AT LAW
conservator, in addition to representation by his trustee.
The Declaration of John Denton filed on October 2, 2020 and served with the Moving Papers
expressly states that he is requesting a protective order. Section 2 of this brief explains why that
should not be granted. The Application for Appointment of a Guardian Ad Litem states at Attachment
5 that a guardian ad litem mist be appointed to defend Mr. Niderost’s deposition or le a motion for
a protective order. Mr. Denton has not articulated why he did not make a request for a protective
order in his capacity as conservator and successor trustee. Code of Civil Procedure section 2025.420
subdivision (a) expressly provides that any party can make such a motion. If Mr. Denton can make
such a motion, he should explain why he thinks that a guardian ad litem needs to be appointed to
make such a motion.
The Declaration of Raymond L. Sandelman filed on September 23, 2020 explains that he has
already discussed the deposition of Mr. Niderost with Clayton Anderson, Edward F. Niderost’s
attorney in the conservatorship action as well as Sandra Knowles, Mr. Niderost’s attorney in this
action. No explanation is offered by Mr. Denton as to why a third attorney needs to be brought into
this litigation for a routine deposition concerning events that happened in January of 2020.
2. There Is No Basis For Issuance Of A Protective Order
The Declaration of Mr. Denton includes a request that the Court stay the deposition of Mr.
Niderost, but no motion for a protective order pursuant to Code of Civil Procedure section 2025.420
subdivision (b)(l) has been filed, and no admissible foundational facts for such an order have been
articulated. The Court cannot act sua sponte.
(a) [8:686] Not on court's own motion: There is no statutory authority for a
court limiting discovery on its own motion. Both CCP § 2017.020(a) and §2019.030(b)
2
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR
APPOINTMENT (JP A GUARDIAN An J ITPM
require a “motion” by the deponent or party or person affected. However, judges
handling cases designated “complex” (1] 12:47 .) may have more exibility to
manage and control discovery.
196 COHASSET ROAD, SUITE 225, CHICO, CA 95926—2284
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2020)
(530) 343—5090 / (530) 343-5091 (FAX)
RAYMOND L. ‘SANDELMAN
3. The Declaration Of John Denton Contains Inadmissible Evidence
ATTORNEY AT LAW
The Application for Appointment of a Guardian Ad Litem and Declaration by John Denton is
an example of how to make conclusionary facts without any foundational support whatsoever. It is
fundamental that declarations in law and motion matters need to be based on personal knowledge
rather than hearsay.
Declarations and affidavits are hearsay and therefore inadmissible at trial,
subject to statutory exceptions. But CCP § 2009 authorizes their use in motion
proceedings, creating an exception to the hearsay rule and rendering them potentially
admissible evidence. (But absent some other exception to the hearsay rule,
declarations must be based on personal knowledge rather than hearsay; see 1} 9:59.)
[Elkins v. Sup.Ct. (Elkins) (2007) 41 C4th 1337, 1345, 63 CR3d 483, 485; United
Comm. Church v. Garcin (1991) 231 CA3d 327, 344, 282 CR 368, 380 (superseded
by statute on other grounds); North Beverly Park Homeowners Ass’n v. Bisno (2007)
147 CA4th 762, 778, 54 CR3d 644, 656 (citing text)]
Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter
Group 2020)
Wayne Cook previously filed a brief on September 24, 2020 explaining how Mr. Denton’s
declaration was based upon inadmissible evidence. Refiling the same declaration did not make the
claims admissible evidence. Here are the evidentiary objections:
(a) Paragraph 2 as to Mr. Niderost being not well, easily confused and not competent, lacks
any factual foundation of personal knowledge (Evid. Code § 403) and are irrelevant conclusory claims
(Evid. Code § 351).
(b) Paragraph 3 as to Mr. Niderost having a bladder infection and upcoming surgery lacks
any factual foundation of personal knowledge (Evid. Code § 403) and are irrelevant conclusory claims
(Evid. Code § 351).
(c) Paragraph 4 as to Mr. Niderost not having a sound mind, that he is not capable of sitting
in a deposition and needs an attorney to represent him lacks any factual foundation of personal
3
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR
APPOINTMENT 0F A GUARDIAN AT) TITPM
knowledge (Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351).
(d) Paragraph 5 as to Mr. Niderost being irrevocably harmed by testifying at a deposition,
196 COHASSET ROAD, Sung 225, Cmco, CA 95926-2284
that he is impaired and cannot give clear testimony lack any factual foundation of personal knowledge
(530) 343-5090 / (530) 343—5091 (FAX)
(Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351).
RAYMOND L. SANDELMAN
Mr. Denton’s conclusions concerning capacity do not address the statutory factors of Evidence
ATTORNEY AT LAw
Code section 701:
(a) A person is disqualified to be a witness if he or she is:
(1) Incapable of expressing himself or herself concerning the matter so as to
be understood, either directly or through interpretation by one who can understand
him; or
(2) Incapable of understanding the duty of a witness to tell the truth.
People v. Giron-Chamul (2016) 245 Cal.App.4th 932 discusses the elements of the statute
and the burden to show lack of competency to testify:
In general, “every person, irrespective of age, is qualified to be a witness.”
(Evid. Code, § 700; see People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368, 113
Ca1.Rptr.2d 804 . . . The party challenging a witness's competency has the burden to
prove incompetency by a preponderance of the evidence. (Avila, at p. 589, 43
“
Ca1.Rptr.3d 1, 133 P.3d 1076.)
‘
All persons are presumed to have capacity (Prob. Code, § 810 subd. (a)). There are no
evidentiary facts articulated that Mr. Niderost lacks capacity based on the relevant factors specified
in Probate Code section 811 subdivision (a). If Mr. Denton wanted to claim that a guardian ad litem
should be appointed based upon lack of capacity as permitted by Code of Civil Procedure section 372
subdivision (a)(2) he should have skipped all of the conclusory claims and stopped after he announced
that he was the conservator. But that would not help explain what the guardian ad litem is-to do in
this litigation. Nor would it help in obtaining the protective order requested by Mr. Denton.
Attachment 5a and 5d to the Application for Appointment of a Guardian Ad Litem state that
Mr. Niderost is frail and not competent. This statement lacks any factual foundation of personal
knowledge (Evid. Code § 403) and is an irrelevant conclusory claim (Evid. Code § 351).
/ / / .
/ / /
4
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR
AppanMpNT m: A GUARDIAN An HTPM
4. Conclusion
If a guardian ad litem is appointment, the duties and responsibilities should be
Clearly
196 COHASSET ROAD, Sums 225, CHICO, CA 95926—2284
articulated.
(530) 343-5090 / (530) 343—5091 (FAX)
RAYMOND L. SANDELMAN
ATTORNEY AT LAw
Dated: oéxtjvr 5,1010 Lgulmx
L.
Raymond Sandelman
Attorney for Wayne A. Cook, individually
and as Trustee of The Wayne A. Cook 1998
Family Trust
5
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR
APPOINTMENT 0F A GUARDIAN AD LITFM
PROOF OF SERVICE
I, Wendy Hoy, declare as follows:
I am employed in the County of Butte, State of California; I am over the age of 18 years and
not a party to this action; my business address is 196 Cohasset Road, Suite 225, Chico California
95926—2284, in said County and State. On October [5/ , 2020, I served copies of the Plaintiff’s
196 COHASSET ROAD, SUITE 225, CHICO, CA 95926-2284
Memorandum Of Points And Authorities In Opposition To Application For Appointment Of A
Guardian Ad Litem on the following person(s) at the following address(s), in the manner indicated
(530) 343—5090 / (530) 343—5091 (FAX)
below:
RAYMOND L. SANDELMAN
David R. Griffith, Esq. Sara M. Knowles, Esq.
ATTORNEY AT LAW
Jameson E.P. Sheehan, Esq. Leland, Morrissey & Knowles LLP
Griffith Horn & Sheehan, LLP 1660 Humboldt Road, Suite 6
1530 Humboldt Road, Suite 3 Chico, CA 95928
Chico, CA 95928
Larry Gene Lushanko Edward F. Niderost
Law Office of Larry G. Lushanko 1077 Via Verona Drive
1241 E Mission Rd. Chico, CA 95973
Fallbrook, CA 92028
X BY UNITED STATES MAIL enclosed the documents in a sealed envelope or package
addressed to the persons at the addresses shown above and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing correspondence for mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope with postage
fully prepaid. I am employed in the county where the mailing occurred. The envelope or package
was placed in the mail at Chico, CA.
X BY TRANSMITTING THE DOCUMENT(S) ELECTRONICALLY via the following
email addresses:
david@davidgriffithlaw.com; jameson@griffithandhorn.com;
sknowles@chicolawyer.corn; office@lushankolaw.com.
I certify under penalty of perjury that the foregoing is true and correct, and this declaration
of service was executed on October é,
2020 at Chico, California.
/
w/rx/ZV/‘zz/
Wendy Hoy U
m: \orig_data bvorklclient directorieslcook, wayne I 81 4loppbrf 1015. docx
PROOF OF SERVICE
Preview
O\.UI 00 Raymond L. Sandelman SBN 078020 F Sm“ CM F mmdmm \D Attorney at Law I I 196 Cohasset Road, Suite 225 L 10/15/2020 L Chico, CA 95926—2284 E E (530) 343—5090 / (530) 343~5091 (FAX) D D Email:Raymond@sandelmanlaw.com By ”will! Attorney for Wayne A. Cook, individually And as Trustee of The Wayne A. Cook 1998 Family Trust Dated 12/29/98 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF BUTTE WAYNE A. COOK, TRUSTEE OF THE NO.: 20CVOO905 WAYNE A. COOK 1998 FAMILY TRUST DATED 12/29/98, PLAINTIFF’S MEMORANDUM OF POINTS Plaintiff, AND AUTHORITIES RE: APPLICATION FOR APPOINTMENT OF A GUARDIAN AD v. LITEM EDWARD F. NIDEROST ’ er. a1. ’ Hearing Date: 10/28/2020 Hearing Time: 9:00 a.m. Defendants. Department: 1 Judge: Tamara Mosbarger / Date of Complaint: 4/22/2020 AND RELATED CRoss COMPLAINTS Trial Date: None 56‘ _ / 1. There Is No Articulation As To What The Guardian Ad Litem Is To Do In This Litigation. Plaintiff’s counsel was served an Application for Appointment of a Guardian Ad Litem. The online register of actions does not show that this document was filed with the Court. The Application does not clearly articulate what the guardian ad litem is to do in this litigation. Leland, Morrissey & Knowles LLP have filed an Answer and Cross Complaint asserting that they are the attorney for Edward Niderost. This fact was discussed by the Judge Pro Tem and counsel at the hearing on September 24, 2020. Nothing has changed since then. 1 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR APPOINTMENT OF A GUARDlAN AD LITEM John Denton has filed an Answer and Cross Complaint also alleging that he is the conservator of the estate and the successor trustee. If Mr. Niderost, his conservator, and trustee are already 196 COHASSET ROAD, SUITE 225, CHICO, CA 95926-2284 represented by counsel, there seems to be no need for a guardian ad litem. If a guardian ad litem is (530) 343-5090 / (530) 343—5091 (FAX) appointment, the duties and responsibilities should be clearly articulated. It would be inappropriate RAYMOND L. SANDELMAN for Mr. Niderost to have a dual status in the litigation both as an individual and also through his ATTORNEY AT LAW conservator, in addition to representation by his trustee. The Declaration of John Denton filed on October 2, 2020 and served with the Moving Papers expressly states that he is requesting a protective order. Section 2 of this brief explains why that should not be granted. The Application for Appointment of a Guardian Ad Litem states at Attachment 5 that a guardian ad litem mist be appointed to defend Mr. Niderost’s deposition or le a motion for a protective order. Mr. Denton has not articulated why he did not make a request for a protective order in his capacity as conservator and successor trustee. Code of Civil Procedure section 2025.420 subdivision (a) expressly provides that any party can make such a motion. If Mr. Denton can make such a motion, he should explain why he thinks that a guardian ad litem needs to be appointed to make such a motion. The Declaration of Raymond L. Sandelman filed on September 23, 2020 explains that he has already discussed the deposition of Mr. Niderost with Clayton Anderson, Edward F. Niderost’s attorney in the conservatorship action as well as Sandra Knowles, Mr. Niderost’s attorney in this action. No explanation is offered by Mr. Denton as to why a third attorney needs to be brought into this litigation for a routine deposition concerning events that happened in January of 2020. 2. There Is No Basis For Issuance Of A Protective Order The Declaration of Mr. Denton includes a request that the Court stay the deposition of Mr. Niderost, but no motion for a protective order pursuant to Code of Civil Procedure section 2025.420 subdivision (b)(l) has been filed, and no admissible foundational facts for such an order have been articulated. The Court cannot act sua sponte. (a) [8:686] Not on court's own motion: There is no statutory authority for a court limiting discovery on its own motion. Both CCP § 2017.020(a) and §2019.030(b) 2 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR APPOINTMENT (JP A GUARDIAN An J ITPM require a “motion” by the deponent or party or person affected. However, judges handling cases designated “complex” (1] 12:47 .) may have more exibility to manage and control discovery. 196 COHASSET ROAD, SUITE 225, CHICO, CA 95926—2284 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) (530) 343—5090 / (530) 343-5091 (FAX) RAYMOND L. ‘SANDELMAN 3. The Declaration Of John Denton Contains Inadmissible Evidence ATTORNEY AT LAW The Application for Appointment of a Guardian Ad Litem and Declaration by John Denton is an example of how to make conclusionary facts without any foundational support whatsoever. It is fundamental that declarations in law and motion matters need to be based on personal knowledge rather than hearsay. Declarations and affidavits are hearsay and therefore inadmissible at trial, subject to statutory exceptions. But CCP § 2009 authorizes their use in motion proceedings, creating an exception to the hearsay rule and rendering them potentially admissible evidence. (But absent some other exception to the hearsay rule, declarations must be based on personal knowledge rather than hearsay; see 1} 9:59.) [Elkins v. Sup.Ct. (Elkins) (2007) 41 C4th 1337, 1345, 63 CR3d 483, 485; United Comm. Church v. Garcin (1991) 231 CA3d 327, 344, 282 CR 368, 380 (superseded by statute on other grounds); North Beverly Park Homeowners Ass’n v. Bisno (2007) 147 CA4th 762, 778, 54 CR3d 644, 656 (citing text)] Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) Wayne Cook previously filed a brief on September 24, 2020 explaining how Mr. Denton’s declaration was based upon inadmissible evidence. Refiling the same declaration did not make the claims admissible evidence. Here are the evidentiary objections: (a) Paragraph 2 as to Mr. Niderost being not well, easily confused and not competent, lacks any factual foundation of personal knowledge (Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351). (b) Paragraph 3 as to Mr. Niderost having a bladder infection and upcoming surgery lacks any factual foundation of personal knowledge (Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351). (c) Paragraph 4 as to Mr. Niderost not having a sound mind, that he is not capable of sitting in a deposition and needs an attorney to represent him lacks any factual foundation of personal 3 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR APPOINTMENT 0F A GUARDIAN AT) TITPM knowledge (Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351). (d) Paragraph 5 as to Mr. Niderost being irrevocably harmed by testifying at a deposition, 196 COHASSET ROAD, Sung 225, Cmco, CA 95926-2284 that he is impaired and cannot give clear testimony lack any factual foundation of personal knowledge (530) 343-5090 / (530) 343—5091 (FAX) (Evid. Code § 403) and are irrelevant conclusory claims (Evid. Code § 351). RAYMOND L. SANDELMAN Mr. Denton’s conclusions concerning capacity do not address the statutory factors of Evidence ATTORNEY AT LAw Code section 701: (a) A person is disqualified to be a witness if he or she is: (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or (2) Incapable of understanding the duty of a witness to tell the truth. People v. Giron-Chamul (2016) 245 Cal.App.4th 932 discusses the elements of the statute and the burden to show lack of competency to testify: In general, “every person, irrespective of age, is qualified to be a witness.” (Evid. Code, § 700; see People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1368, 113 Ca1.Rptr.2d 804 . . . The party challenging a witness's competency has the burden to prove incompetency by a preponderance of the evidence. (Avila, at p. 589, 43 “ Ca1.Rptr.3d 1, 133 P.3d 1076.) ‘ All persons are presumed to have capacity (Prob. Code, § 810 subd. (a)). There are no evidentiary facts articulated that Mr. Niderost lacks capacity based on the relevant factors specified in Probate Code section 811 subdivision (a). If Mr. Denton wanted to claim that a guardian ad litem should be appointed based upon lack of capacity as permitted by Code of Civil Procedure section 372 subdivision (a)(2) he should have skipped all of the conclusory claims and stopped after he announced that he was the conservator. But that would not help explain what the guardian ad litem is-to do in this litigation. Nor would it help in obtaining the protective order requested by Mr. Denton. Attachment 5a and 5d to the Application for Appointment of a Guardian Ad Litem state that Mr. Niderost is frail and not competent. This statement lacks any factual foundation of personal knowledge (Evid. Code § 403) and is an irrelevant conclusory claim (Evid. Code § 351). / / / . / / / 4 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR AppanMpNT m: A GUARDIAN An HTPM 4. Conclusion If a guardian ad litem is appointment, the duties and responsibilities should be Clearly 196 COHASSET ROAD, Sums 225, CHICO, CA 95926—2284 articulated. (530) 343-5090 / (530) 343—5091 (FAX) RAYMOND L. SANDELMAN ATTORNEY AT LAw Dated: oéxtjvr 5,1010 Lgulmx L. Raymond Sandelman Attorney for Wayne A. Cook, individually and as Trustee of The Wayne A. Cook 1998 Family Trust 5 PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO APPLICATION FOR APPOINTMENT 0F A GUARDIAN AD LITFM PROOF OF SERVICE I, Wendy Hoy, declare as follows: I am employed in the County of Butte, State of California; I am over the age of 18 years and not a party to this action; my business address is 196 Cohasset Road, Suite 225, Chico California 95926—2284, in said County and State. On October [5/ , 2020, I served copies of the Plaintiff’s 196 COHASSET ROAD, SUITE 225, CHICO, CA 95926-2284 Memorandum Of Points And Authorities In Opposition To Application For Appointment Of A Guardian Ad Litem on the following person(s) at the following address(s), in the manner indicated (530) 343—5090 / (530) 343—5091 (FAX) below: RAYMOND L. SANDELMAN David R. Griffith, Esq. Sara M. Knowles, Esq. ATTORNEY AT LAW Jameson E.P. Sheehan, Esq. Leland, Morrissey & Knowles LLP Griffith Horn & Sheehan, LLP 1660 Humboldt Road, Suite 6 1530 Humboldt Road, Suite 3 Chico, CA 95928 Chico, CA 95928 Larry Gene Lushanko Edward F. Niderost Law Office of Larry G. Lushanko 1077 Via Verona Drive 1241 E Mission Rd. Chico, CA 95973 Fallbrook, CA 92028 X BY UNITED STATES MAIL enclosed the documents in a sealed envelope or package addressed to the persons at the addresses shown above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I am employed in the county where the mailing occurred. The envelope or package was placed in the mail at Chico, CA. X BY TRANSMITTING THE DOCUMENT(S) ELECTRONICALLY via the following email addresses: david@davidgriffithlaw.com; jameson@griffithandhorn.com; sknowles@chicolawyer.corn; office@lushankolaw.com. I certify under penalty of perjury that the foregoing is true and correct, and this declaration of service was executed on October é, 2020 at Chico, California. / w/rx/ZV/‘zz/ Wendy Hoy U m: \orig_data bvorklclient directorieslcook, wayne I 81 4loppbrf 1015. docx PROOF OF SERVICE