Preview
RAOUL J. LeCLERC
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1 (SBN 39228) mum-u mummimu
Attorney at Law F F
2 Post Office Drawer 111
mm dam
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Oroville, California 95965
3 Telephone: (530) 533-5661 L 10/29/2021 L
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Fax: (530) 533-0865 E E
4 E-mail: rleclerc@leclerclawoffice.com D D
5 Attorney for Cross-defendant Gene Culley Bf mp"?
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF BUTTE
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EDWARD F. NIDEROST, Individually and No. 2 0 C V 0 0 9 0 5
1 1 as Trustee of the EDWARD F. NIDEROST
REVOCABLE LIVING TRUST dated CROSS-DEFENDANT GENE CULLEY’S
1 2 November 8, 1998, CLOSING POST-TRIAL ARGUMENT
1 3 Cross-complainant,
14 vs.
15 WAYNE A. COOK, Individually and as
Trustee of the WAYNE A. COOK 1998
16 FAMILY TRUST dated 12/29/98;
LAWRENCE PATTERSON; GENE CULLEY,
17 MID VALLEY TITLE & ESCROW
COMPANY; WILLIAM CHANCE and ROES
18 1 through 25, inclusive,
1 9 Cross-defendants.
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22 Cross-complainantargues in his POST-TRIAL BRIEF filed October 15, 2021,
23 that cross-defendant Gene Culley is (1) liable for elder abuse because he assisted Mr.
24 Cook in taking property of Mr. Niderost for a wrongful purpose (page 31), (2) liable for
25 financial elder abuse for undue influence (page 32), and (3) liable for breach of fiduciary
26 duties (page 33). Cross-defendant replies to those assertions herein.
27 1. Elder Abuse in Assistinq Mr. Cook. Of course, if Wayne
28 Cook is not liable for elder abuse, then Mr. Culley cannot be liable for any purported
CROSS-DEFENDANT GENE CULLEY’S CLOSING
POST-TRIAL ARGUMENT
1 assistance. Mr. Culley incorporates by reference herein the arguments of Wayne Cook
contained in his opening argument filed October 15, 2021, commencing on page 23
through page 29. Notwithstanding the aforesaid, cross-complainant continues to mix his
relationship with Mr. Culley before the purchase of the MillerMansion to after the purchase
of the Miller Mansion. Prior to the purchase, there is no evidence that Mr. Culley acted as
Mr. Niederost’s agent, advisor, caregiver or assistant. Incidental incidents during the time
of the Miller Mansion purchase may cast Mr. Culley in the role of an agent for cross-
complainant, for example, when Mr. Culley telephoned Mr. McCrady asking about the
availability of loans, but such agency does not cast Mr. Culley in the role of a fiduciary in
general terms with respect to cross-complainant. For example, it would be different,
1 1 perhaps, if the telephone call to Mr. McCrady resulted in some type of financial
12 arrangement, which financial arrangement Mr. Culley took to cross-complainant,
13 encouraged him to adopt it by not disclosing certain terms and, as a result, cross-
14 complainantwas damaged. Assuming, as cross-complainant argues on page 31, line 27,
15 that Mr. Culley, a 77 year old neighbor / friend of cross-complainant who got wrapped up
16 in the excitement of the moment along with cross-complainant, should know as much as
17 Mr. McCrady, an experienced, licensed loan broker who may be fully aware of the pitfalls
18 of purchasing and financing real property is ludicrous. Mr. Culley, other than his
19 cheerleading, did nothing that provided any assistance to Mr. Cook in making the sale of
20 the Miller Mansion to cross-complainant.
21 2. Undue Influence. Cross-complainant argues, without any
22 evidence whatsoever, that Mr. Culley “had authority of Mr. Niderost (h)as has a fiduciary,
23 care provider, agent and assistant.” (page 33, line 8) There is no evidence that Mr. Culley
24 had such authority at the time cross-complainant purchased the Miller Mansion. The
25 cheerleading, promotion and encouragement that Mr. Culley provided cross-complainant
26 did not amount to undue influence. There was no evidence of excessive persuasion,
27 pressure on cross-complainant, false information provided, misrepresentations, or
28 interference with cross-complainant’s access to professional advice by Mr. Culley. ln fact,
CROSS-DEFENDANT GENE CULLEY’S CLOSING
POST-TRIAL ARGUMENT 2
1 cross-complainant rejected the advice of Mr. Denton to cross-complainant that he not
2 purchase the Miller Mansion.
3 3. Breach of Fiduciarv Dutv. The arguments set forth in
4 paragraphs 1 and 2 above apply equa||y to this contention and are incorporated herein.
5 The claims of cross-complainant against Mr. Culley are as shallow as cross-complainant’s
6 contention that Mr. Culley refused to accept the authority of this court when there is no
7 evidence that he was presented with any order from this court (page 34, line 25).
8 WHEREFORE, cross-defendant Gene Culley requests that this court rule in
9 his favor and against cross-complainant herein.
1 O DATED: October 29, 2021.
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Raoul J. LeClerc\)
1 3 Attorney for Cross-defendant Gene Culley
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CROSS-DEFENDANT GENE CULLEY’s CLOSING
POST-TRIAL ARGUMENT 3
1 PROOF OF SERVICE
2 I,Raoul J. LeCIerc, declare as follows:
3 |am over 18 years of age and not a party to the within action. |am employed
at the Law Office of Raoul J. LeCIerc, P.O. Drawer 111, Oroville, California 95965. On
4 October 29, 2021, l caused to be served the within CROSS-DEFENDANT GENE
CULLEY’S CLOSING POST-TRIAL ARGUMENT on the interested parties in said action,
5 by placing a true copy thereof in sealed envelope(s) addressed as follows:
6 Sara M. Knowles Raymond L. Sandelman Larry Lushanko
Attorney at Law Attorney at Law Attorney at Law
7 1660 Humboldt, Ste. 6 196 Cohasset Road, Ste. 225 1241 E. Mission Road
Chico, CA 95928 Chico, CA 95926 Fallbrook, CA 92028
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9 The above—named document(s) were served in the manner indicated below:
1° BY MAIL:
N] | caused true and correct copies of the above documents, by following ordinary
business practices, to be placed and sealed in envelope(s) addressed to the addressee(s),
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at Law Office of Raoul J. LeCIerc, 2950 Feather River Blvd, Oroville, California 95965, for
collection and mailing with the United States Postal Service, and in ordinary course of
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business, correspondence placed for collection on a particular day is deposited with the
United States Postal Service that same day.
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l l BY PERSONAL SERVICE: I caused true and correct copies of the above documents to be
14 placed and sealed in envelope(s) addressed to the addressee(s) and |caused such
envelope(s) to be delivered by hand on the office(s) ofthe addressee(s).
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[ l BY FEDERAL EXPRESS: Icaused true and correct copies of the above documents to be
16 placed and sealed in envelope(s) addressed to the addressee(s) and |caused such
envelope(s) to be delivered to FEDERAL EXPRESS for overnight courier service to the
17 office(s) of the addressee(s).
18 [ l BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via facsimile
machine. The fax number of the machine from which the document was transmitted was
19 (530) 533-0865. The fax number(s) to which the document(s) were transmitted are listed
above. The fax transmission was reported as complete and without error. |caused the
20 transmitting facsimile machine toprint a transmission record ofthe transmission, a copy of
which is attached to this declaration.
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22 |declare under penalty of perjury pursuant to the laws of the State of California that
the foregoing is true and correct, and that this declaration was executed on October 29,
'23 2021. '
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25 R'aoul J.
Le‘Qéjrc
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CROSS-DEFENDANT GENE CULLEY’S CLOSING
POST-TRIAL ARGUMENT 4
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RAOUL J. LeCLERC ' 1 (SBN 39228) mum-u mummimu Attorney at Law F F 2 Post Office Drawer 111 mm dam | I Oroville, California 95965 3 Telephone: (530) 533-5661 L 10/29/2021 L 5% Fax: (530) 533-0865 E E 4 E-mail: rleclerc@leclerclawoffice.com D D 5 Attorney for Cross-defendant Gene Culley Bf mp"? 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF BUTTE 9 1O EDWARD F. NIDEROST, Individually and No. 2 0 C V 0 0 9 0 5 1 1 as Trustee of the EDWARD F. NIDEROST REVOCABLE LIVING TRUST dated CROSS-DEFENDANT GENE CULLEY’S 1 2 November 8, 1998, CLOSING POST-TRIAL ARGUMENT 1 3 Cross-complainant, 14 vs. 15 WAYNE A. COOK, Individually and as Trustee of the WAYNE A. COOK 1998 16 FAMILY TRUST dated 12/29/98; LAWRENCE PATTERSON; GENE CULLEY, 17 MID VALLEY TITLE & ESCROW COMPANY; WILLIAM CHANCE and ROES 18 1 through 25, inclusive, 1 9 Cross-defendants. l 20 21 22 Cross-complainantargues in his POST-TRIAL BRIEF filed October 15, 2021, 23 that cross-defendant Gene Culley is (1) liable for elder abuse because he assisted Mr. 24 Cook in taking property of Mr. Niderost for a wrongful purpose (page 31), (2) liable for 25 financial elder abuse for undue influence (page 32), and (3) liable for breach of fiduciary 26 duties (page 33). Cross-defendant replies to those assertions herein. 27 1. Elder Abuse in Assistinq Mr. Cook. Of course, if Wayne 28 Cook is not liable for elder abuse, then Mr. Culley cannot be liable for any purported CROSS-DEFENDANT GENE CULLEY’S CLOSING POST-TRIAL ARGUMENT 1 assistance. Mr. Culley incorporates by reference herein the arguments of Wayne Cook contained in his opening argument filed October 15, 2021, commencing on page 23 through page 29. Notwithstanding the aforesaid, cross-complainant continues to mix his relationship with Mr. Culley before the purchase of the MillerMansion to after the purchase of the Miller Mansion. Prior to the purchase, there is no evidence that Mr. Culley acted as Mr. Niederost’s agent, advisor, caregiver or assistant. Incidental incidents during the time of the Miller Mansion purchase may cast Mr. Culley in the role of an agent for cross- complainant, for example, when Mr. Culley telephoned Mr. McCrady asking about the availability of loans, but such agency does not cast Mr. Culley in the role of a fiduciary in general terms with respect to cross-complainant. For example, it would be different, 1 1 perhaps, if the telephone call to Mr. McCrady resulted in some type of financial 12 arrangement, which financial arrangement Mr. Culley took to cross-complainant, 13 encouraged him to adopt it by not disclosing certain terms and, as a result, cross- 14 complainantwas damaged. Assuming, as cross-complainant argues on page 31, line 27, 15 that Mr. Culley, a 77 year old neighbor / friend of cross-complainant who got wrapped up 16 in the excitement of the moment along with cross-complainant, should know as much as 17 Mr. McCrady, an experienced, licensed loan broker who may be fully aware of the pitfalls 18 of purchasing and financing real property is ludicrous. Mr. Culley, other than his 19 cheerleading, did nothing that provided any assistance to Mr. Cook in making the sale of 20 the Miller Mansion to cross-complainant. 21 2. Undue Influence. Cross-complainant argues, without any 22 evidence whatsoever, that Mr. Culley “had authority of Mr. Niderost (h)as has a fiduciary, 23 care provider, agent and assistant.” (page 33, line 8) There is no evidence that Mr. Culley 24 had such authority at the time cross-complainant purchased the Miller Mansion. The 25 cheerleading, promotion and encouragement that Mr. Culley provided cross-complainant 26 did not amount to undue influence. There was no evidence of excessive persuasion, 27 pressure on cross-complainant, false information provided, misrepresentations, or 28 interference with cross-complainant’s access to professional advice by Mr. Culley. ln fact, CROSS-DEFENDANT GENE CULLEY’S CLOSING POST-TRIAL ARGUMENT 2 1 cross-complainant rejected the advice of Mr. Denton to cross-complainant that he not 2 purchase the Miller Mansion. 3 3. Breach of Fiduciarv Dutv. The arguments set forth in 4 paragraphs 1 and 2 above apply equa||y to this contention and are incorporated herein. 5 The claims of cross-complainant against Mr. Culley are as shallow as cross-complainant’s 6 contention that Mr. Culley refused to accept the authority of this court when there is no 7 evidence that he was presented with any order from this court (page 34, line 25). 8 WHEREFORE, cross-defendant Gene Culley requests that this court rule in 9 his favor and against cross-complainant herein. 1 O DATED: October 29, 2021. 1 1 1 2 Raoul J. LeClerc\) 1 3 Attorney for Cross-defendant Gene Culley 1 4 1 5 16 1 7 18 19 20 21 22 23 24 25 26 27 28 CROSS-DEFENDANT GENE CULLEY’s CLOSING POST-TRIAL ARGUMENT 3 1 PROOF OF SERVICE 2 I,Raoul J. LeCIerc, declare as follows: 3 |am over 18 years of age and not a party to the within action. |am employed at the Law Office of Raoul J. LeCIerc, P.O. Drawer 111, Oroville, California 95965. On 4 October 29, 2021, l caused to be served the within CROSS-DEFENDANT GENE CULLEY’S CLOSING POST-TRIAL ARGUMENT on the interested parties in said action, 5 by placing a true copy thereof in sealed envelope(s) addressed as follows: 6 Sara M. Knowles Raymond L. Sandelman Larry Lushanko Attorney at Law Attorney at Law Attorney at Law 7 1660 Humboldt, Ste. 6 196 Cohasset Road, Ste. 225 1241 E. Mission Road Chico, CA 95928 Chico, CA 95926 Fallbrook, CA 92028 8 9 The above—named document(s) were served in the manner indicated below: 1° BY MAIL: N] | caused true and correct copies of the above documents, by following ordinary business practices, to be placed and sealed in envelope(s) addressed to the addressee(s), 1 1 at Law Office of Raoul J. LeCIerc, 2950 Feather River Blvd, Oroville, California 95965, for collection and mailing with the United States Postal Service, and in ordinary course of 12 business, correspondence placed for collection on a particular day is deposited with the United States Postal Service that same day. 13 l l BY PERSONAL SERVICE: I caused true and correct copies of the above documents to be 14 placed and sealed in envelope(s) addressed to the addressee(s) and |caused such envelope(s) to be delivered by hand on the office(s) ofthe addressee(s). 15 [ l BY FEDERAL EXPRESS: Icaused true and correct copies of the above documents to be 16 placed and sealed in envelope(s) addressed to the addressee(s) and |caused such envelope(s) to be delivered to FEDERAL EXPRESS for overnight courier service to the 17 office(s) of the addressee(s). 18 [ l BY FACSIMILE: I caused a copy(ies) of such document(s) to be transmitted via facsimile machine. The fax number of the machine from which the document was transmitted was 19 (530) 533-0865. The fax number(s) to which the document(s) were transmitted are listed above. The fax transmission was reported as complete and without error. |caused the 20 transmitting facsimile machine toprint a transmission record ofthe transmission, a copy of which is attached to this declaration. 21 22 |declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on October 29, '23 2021. ' 24 25 R'aoul J. Le‘Qéjrc 26 27 28 CROSS-DEFENDANT GENE CULLEY’S CLOSING POST-TRIAL ARGUMENT 4