samsloan
2013-04-26 01:51:47 UTC
1st Civil No.
A137739 Division 4
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
First Appellate District
Division Four
____________________________________
SAMUEL H. SLOAN, Administrator of the Estate
of K. Michael Goodall with Will Annexed
Objector and Appellant,
v.
SAM WARE,
Movant and Respondent,
and
Bank of America, N. A. Plaintiff
_____________________________________________________
Appeal from an Order Removing Sam Ware as
Counsel for the Estate of K. Michael Goodall,
San Francisco Superior Court,
The Honorable Peter J. Busch, Judge
Case No. PTR 99-273030
_____________________________________________________
APPELLANT'S OPENING BRIEF
_____________________________________________________
Samuel H. Sloan, en pro per
Administrator of Estate
of K. Michael Goodall
with Will Annexed
461 Peachstone Terrace
San Rafael CA 94903
(415) 419-5980
917-659-3397
***@gmail.com
PRELIMINARY STATEMENT
This is an appeal of an order withdrawing Sam Ware counsel for the
Estate of K. Michael Goodall from appearing in this case. Counsel for
the Goodall Estate sought to withdraw after counsel for Bank of
America filed three successive motions for monetary sanctions. These
motions were filed by Bank of America against Counsel for the Goodall
Estate and personally against the administrator of the Goodall Estate
with Will annexed. These successive motions for sanctions demanded
that Counsel for the Goodall Estate and the Administrator of the
Goodall Estate personally both pay between $13,000 and $16,000 to
Counsel for Bank of America.
These three motions for sanctions were utterly frivolous and without
basis. Their obvious propose was to frighten and intimidate counsel
for the Goodall Estate and to scare him into not zealously presenting
the best arguments and to frighten him so that he would not properly
present the case and would not appeal if necessary. In view of this
plus the obvious hostility of the judge presiding over the case to the
rightful claims of the Goodall Estate, which made it likely that these
motions for sanctions which threatened the professional career of
Counsel for the Goodall Estate would be granted, he filed the motion
to withdraw so as to get himself off the hook on these motions for
sanctions. Even after filing the motion to withdraw, the comments by
Judge Busch at the final hearing on sanctions show that Judge Busch
was on the verge of ordering sanctions anyway. (See Record, Volume V,
page 1685)
As much as we sympathize with the plight faced by Counsel for the
Goodall Estate in a case where he had nothing to gain and everything
to lose in the face of an obviously hostile judge, his withdrawal from
the case left the Goodall Estate and the legitimate Goodall Heirs in
an untenable position because the objective of Bank of America is to
take the entire Goodall Estate and give it all to a charity they
favor, namely Guide Dogs for the Blind. This would leave the
legitimate Goodall heirs with nothing, zero.
Indeed, since then, Bank of America has filed three more cases in
Marin County Superior Court against the Goodall Estate. The most
recent case was filed just one month ago on March 19, 2013. These are
Bank of America vs. Sloan, CIV 1203665, Bank of America vs. Sloan, CIV
1204541 and Bank of America vs. Sloan, CIV 1301196. All three of these
cases are for the same purpose, to take possession of the Goodall
Mansion. However, the first two cases were dismissed after the Marin
County Superior Court ruled in favor of the Goodall Estate.
All of these cases plus the San Francisco case on appeal here are for
the same purpose which is a collateral attack on the March 21, 2011
ruling and order of the Judge of the Marin County Probate Court who
authorized the Administrator of the Goodall Estate, Samuel H. Sloan,
to sell the Goodall Property, including the Goodall Mansion. (See
Record, Volume I, page 293-294) Rather than directly contest and
dispute the right of the Administrator of the Goodall Estate to sell
the Goodall Mansion, Bank of America keeps filing cases in the wrong
courts. At the last hearing in Marin County Superior Court on November
28, 2012, Judge Roy Chernus told Bank of America what they must do to
take possession of the house, which is to file a claim to quiet title
and this claim must be filed in Marin County, not in San Francisco.
This is the very thing that Bank of America refuses to do.
As a result, because the San Francisco Superior Court judge withdrew
Counsel for the Goodall Estate, Sam Ware, from this case, Sloan and
the Goodall Heirs have approached dozens of other attorneys asking for
legal representation. While there may be a phone book full of lawyers,
none of the other attorneys will take this case for the obvious reason
that the same thing that happened to Sam Ware will happen to them too.
Nobody is willing to stick their head into the lion's mouth. Every
attorney is afraid of what Bank of America will do to them if they
take this case.
This means that the legitimate Goodall heirs cannot get proper legal
representation. Appellant Samuel H. Sloan is not a lawyer. He is also
not heir to the Goodall Estate. He took this case as a volunteer
administrator because Mike Goodall was a lifelong personal special
friend. They had been friends for fifty years since 1962 when they met
at a chess tournament at Hamilton Air Force Base. Sloan agreed to
become administrator of this estate at the request of the Goodall
Heirs because none of them had the willingness or the capability to
handle this complex case.
The motion filed by Sam Ware to withdraw as counsel gave only one
reason for wanting to withdraw, which was “Concerns (describe the
subject matter of the hearing) sanctions motion, cross motion”. (See
Record, Volume IV, page 1929). At the hearing on the motion, Sam Ware
said the same thing. Here is what he said:
7 Mr. Sloan and I just have a basic disagreement and have
8 had a disagreement as to this motion for sanctions.
9 I, quite frankly, I want to get out of it.
10 When I got the papers from Bank of America that
11 threatened sanctions, I thought, you know, I think it was
12 probably a good opportunity to avoid the sanctions issue,
13 and I recommended that we, Mr. Sloan, withdraw the
14 motion, and we had disagreement on that. And so not
15 wanting to abandon Mr. Sloan, we went forward on that.
16 But, you know, Mr. Sloan has kindly agreed that I can
17 talk about that and appreciate that.
18 But he was very insistent that this thing go
19 forward, this motion for reconsideration. But, you know,
20 I think that's defensible within the realm of reasonable
21 minds can differ as to the liability for that motion for
22 reconsideration, and I will file a further opposition
23 describing that. But the fact of the matter is that we
24 disagree, disagreed
(See Record, Volume V, page 1663)
The reason counsel for the estate gave for wanting to withdraw, which
was to get out from under the three motions for sanctions Bank of
America had filed against him, is not a legally recognized reason for
being allowed to withdraw. In addition, by doing so, counsel for the
Goodall Estate has not merely abandoned Mr. Sloan. He has abandoned
all of the Goodall heirs which include the two sisters and three
brothers of Rachel Goodall and their children and grandchildren, the
two brothers of Kenneth Goodall, the two additional heirs of Michael
Goodall and the putative child of Michael Goodall, for a total of 23
persons in all. All of these people will inherit nothing from the
Goodall Estate if this order is not reversed. Accordingly, Appellant
requests that this court reinstate Sam Ware as Counsel for the
Estate.
In addition, Appellant requests this court to take plenary
jurisdiction over this case. As will be shown, the San Francisco
Superior Court lacked Jurisdiction over this case because the matter
was already pending in Marin County Probate Court which had conducted
hearings in this matter. All of the Goodall Property and all assets
were in Marin County. The Goodalls all lived, died and are buried in
Marin County. Their wills are all lodged in the clerk's office in
Marin County Superior Court. In short, this case has nothing to do
with San Francisco. It was filed here because for reasons best known
to themselves Bank of America did not want to file this case in Marin
County Probate Court and so they filed it in San Francisco Superior
Court instead.
Secondly, Bank of America lacks standing to appear in this case. The
Goodall Trust provides in Section 6.5(b) thereof, “The Trust Shall
Terminate Upon Michael's Death”. Michael died on October 5, 2010,
which is nearly three years ago. Under no circumstances is Bank of
America the beneficiary of the estate. They have no claim at all. They
want to award the assets of the Goodall Estate to Guide Dogs for the
Blind. There is nothing in the trust documents that gives them the
right to do that. If Guide Dogs for the Blind wants to claim to be the
beneficiary of the estate, they should do that by filing their own
petition. While the Guide Dogs have appeared in this case, they have
never yet stated that they are entitled to inherit from the Goodall
Estate, much less have they set forth the basis for their claims, if
any. The petitions by Bank of America should be dismissed for lack of
standing.
The assets of the Goodall Estate consist of an estimated $2 million
dollars in cash and securities plus the Goodall Mansion at 461
Peachstone Terrace with an estimated value of $700,000. The cash
amount is estimated because Bank of America refuses to provide any
accounting of the funds, even though the trust documents clearly state
that the accounting must be made to the heirs of the estate. (See the
Record, Volume I, page 125) This includes all the Goodall Siblings.
Rachel Goodall had two sisters and three brothers. Kenneth Goodall had
two brothers. All of them are over 80. Most of them are still alive
and have children and grandchildren actively involved and interested
in this case. Bank of America has been completely stonewalling,
refusing to provide any information to any of them.
Why does Bank of America fight like a dog over such a relatively
small estate? The answer is perhaps that they have spent the money
already. Certified financial statements show that at the time of the
death of Col. Kenneth Goodall in 1994, the Goodalls had just slightly
less than one million dollars in cash and securities. The trust dated
September 12, 1990 did not put any of this money into the Trust. None
of it was with Bank of America either. It was after Rachel Goodall
died in June 1999 that Bank of America started contacting various
financial institutions especially USAA Investment Management in San
Antonio Texas demanding that these funds be transferred to Bank of
America. These claims by Bank of America for the funds were without
basis. Nevertheless, USAA Investment Management finally and with some
reluctance transferred the funds to Bank of America. Thus, Bank of
America essentially stole the money, because they had no right to it.
Having done that, Bank of America started charging monthly
administration fees. The person receiving these administration fees
was James R. Hastings who was attorney for Bank of America, the
Goodalls and the Goodall Trust all simultaneously in an obvious
conflict of interest. Then, when Mike Goodall sued Bank of America in
December 1999 for doing this, the attorneys for Bank of America
threatened him stating that if he kept fighting this case soon all the
money would be exhausted in court and administration fees and Mike
Goodall would be left with nothing.
Gary Rothstein, now Attorney for Bank of America, made the same
threat to Sam Sloan, Administrator of the Estate. Rothstein stated
that he charges $530 per hour in attorney's fees and if the
Administrator, Sam Sloan, does not stop fighting this case the money
will all soon be gone, as in Jarndyce v Jarndyce in Bleak House.
However, this threat was ineffective here because it is evident that
if the Goodall Estate does not win this case the money will all be
exhausted any way. Indeed, Gary Rothstein recently told one of the
Goodall heirs that the money is already completely spent and gone.
There is no money left.
However, if Bank of America loses this case they will have to pay all
this money back going back to the one million dollars they took from
USAA Investment Management in 1999, plus interest from that day to
this which will come to about two million. That is the reason Bank of
America is fighting their meritless case so hard. This also lines the
pockets of the attorneys representing Bank of America at their $530
hourly rate.
Appellant requests that this court reverse the decision of the court
below thereby reinstating Sam Ware as Counsel for the Estate and
furthermore that this court dismiss this case as brought by Bank of
America altogether for lack of standing and lack of jurisdiction and
venue. If Bank of America has any claims to make, they should be
directed to file those claims in Marin County Probate Court where the
Goodall Estate Probate Case has been pending since February 1, 2011,
long before Bank of America filed their petition in the instant case.
INTRODUCTION
This is an appeal from an order withdrawing the attorney for the
Administrator of the Estate of K. Michael Goodall from this case.
This order was entered after extensive litigation that started in
1999 as indicated by the case number PTR 99-273030. The case under
this number was originally filed by K. Michael Goodall represented by
attorney Robert J. Rothman contesting the claims by Bank of America to
be the Trustee of the Goodall Trust. The case never went to final
judgment or conclusion because Mike Goodall simply ran out of money to
pay Rothman's legal fees. Mike Goodall paid $7,000 to his attorney but
that was soon exhausted. Nevertheless, Robert J. Rothman is still
listed as counsel of record in this case to this day. Bank of America
has never served him with their pleadings, so he has not been drawn
back into this case.
Meanwhile, Bank of America had invaded the account the Goodalls
maintained with USAA Investment Management in San Antonio Texas which
had about a million dollars in the account in 1999. The Bank of
America somehow convinced USAA Investment Management to turn over the
million dollars to Bank of America in January 2000, even while this
case was pending. This constituted Grand Theft as Bank America had no
legal right nor claim to the money. However, possession being 9/10ths
of the Law, now Bank of America had the million dollars to pay its
attorneys and Mike Goodall the rightful person to control the account
had nothing and could no longer pay his lawyer, so the case became
dormant. However, no final judgment has ever been entered.
On October 5, 2010, Mike Goodall died in the Goodall Mansion located
at 461 Peachstone Terrace in San Rafael, California 94903. Samuel H.
Sloan was in Khanty-Mansiysk, Siberia, Russia on that day attending
the World Chess Olympiad. When he returned to San Rafael California in
January 2011, he found Mike Goodall's last will and testament in his
papers. He took that will down to Marin County Courthouse and filed it
on January 28, 2011. Sloan filed a petition in probate on February 1,
2011. This petition was granted and Sloan was appointed Administrator
of the Estate with Will Annexed on March 21, 2011. (See Record, Volume
I, page 293-294)
However, in the meantime, on or about February 28, 2011, Hamilton
Kipp, an Employee of Bank of America, broke into and burgled the
Goodall Mansion and removed the entire contents. The next day, March
1, 2011, when Sloan came home he found the entire mansion emptied of
its contents and the locks on the doors changed. He found that a small
back window had been left unlocked (apparently to allow the burglars
to regain access if they wanted to return) so he crawled in that
window and thereby regained possession of the house. He changed the
locks on the doors back again. (See Record, Volume I, page 288-290)
However, everything was missing including not only the furniture but
all the Goodall files, family records and legal documents. Sloan
called 911 to report the burglary. Sheriff's Deputy Anthony Savas
responded to the call. He said that he had seen a “Spanish Guy” with a
dumpster removing the contents of the house. However, he refused to
issue a police report for reasons unknown.
Sloan next went to the Marin County Sheriff's Department to complain.
He was interviewed by a sergeant in the Sheriff's Department who said
that if there was reason to believe that Bank of America was involved
they would not start a police case or issue a police report.
Sloan had no idea what had happened to the Goodall stuff. He called
Gary Rothstein, Counsel for Bank of America, but he refused to give
him any information. However, Sloan had an old girlfriend named Shanti
Onofre who lived in Alameda. She attended an estate auction near her
home in Alameda and by chance she noticed Mike Goodall's stuff being
prepared to be auctioned off. She recognized the stuff, as she had
been several times a guest in Mike Goodall's home in San Rafael.
In this way, appellant found out what had happened to the Goodall
stuff. He confronted Gary Rothstein of Bank of America but Bank of
America refused to return the Goodall stuff, even though some of the
stuff was clearly the property of Mike Goodall personally or the
property of the other residents in the Goodall House, Frank Thornally
and Roy Hoppe.
With Bank of America stonewalling and refusing to return the stuff,
Sloan filed an 850 motion to recover estate property in Marin County
Probate Court. Bank of America in a telephone conference call hearing
objected to the motion but the Probate Commissioner set it down for a
hearing anyway. Finally, on June 10, 2011 on the eve of the hearing on
the 850 Motion, Michaan's Auction House, that had been holding the
Goodall stuff in Alameda, substantially returned it to the Goodall
Mansion.
Now, having lost twice in Marin County Probate Court although they
had never filed a notice of appearance there, Bank of America did not
do the proper thing, which was file their claims in the Marin County
Probate Court (although it will be seen that they really do not have a
legally cognizable claim of any kind). Instead, on April 21, 2011 Bank
of America filed in San Francisco Superior Court a pleading entitled
“Petition for an Order Confirming Real Property as an Asset of the
Trust”.
It was apparent that this petition went much further than the stated
title. It gave as the caption of the case, “In the Matter of the Trust
for Michael created under the Goodall Trust dated September 12, 1990”.
(See Record, Volume I, page 186)
However, that was not the caption of the case filed under that
number. The real title of the case was “In Re The Goodall Trust”. (See
Record, Volume I, page 9). In addition, the trust is not a “Trust for
Michael”. The actual trust dated September 12, 1990 makes Michael
Goodall the successor trustee of the Goodall Trust and not Bank of
America. The actual Trust dated September 12, 1990 is the Record: (See
Volume I, pages 105-130 and Volume IV, pages 1160-1185).
This trust makes Mike Goodall the Trustee, not Bank of America. Bank
of America is nowhere mentioned in this document. Section 7.2 Page 119
makes Kenneth Michael Goodall the Successor Trustee and states on page
119 and 1175:
“Kenneth Michael Goodall shall become the trustee. If Kenneth Michael
Goodall is not qualified for appointment as trustee, or if he later
dies, resigns or is removed pursuant judicial procedure or for any
reason fails or ceases to act as trustee SECURITY PACIFIC BANK shall
serve as the corporate sole trustee.”
This particular point was raised at a hearing before Judge Roy
Chernus in Marin County Superior Court on November 28, 2012. The
following colloquy took place:
24 MR. SLOAN: Your Honor, this motion -- thank
25 you for your tentative ruling, which I hope you accept.
1 This motion is certainly not amenable for summary
2 judgment at all. Every single issue of fact is in
3 dispute.
4 For one thing, the number one fact is the Bank
5 of America, the trustee of the Goodall Trust, in the 1990
6 trust document -- and I've included the full trust
7 document in my motion papers -- does not name the Bank of
8 America successor trustee; it names Security Pacific Bank
9 as the successor trustee.
10 Secondly, he doesn't mention that there was
11 also a second amendment to the Goodall Trust dated
12 January of 1990 -- of 1999, making Michael Goodall the
13 successor trustee succeeding his father. So when his
14 mother died, there were two trustees: Michael Goodall
15 and his mother. They were the trustees of the Goodall
16 Trust. And when Rachel Goodall died, then Michael
17 Goodall, by right, became the sole trustee of the Goodall
18 Trust. And because Bank of America insisted they were
19 the trustee, he filed a case against them on December
20 21st -- 27th, 1999, against the Bank of America. And
21 that case was still going in litigation for 10 years,
22 until he died on October 5th, 2010. So all these issues
23 that he's saying are undisputed issues are disputed
24 issues. They have been disputed the whole time.
25 And, secondly, as far as his statement about
1 the documents, he has not yet -- we want discovery. They
2 have not produced a single document since this case
3 began. We have not seen that trust that he just said
4 gives Bank of America -- makes them the trustee. They
5 haven't produced that document. We want that document.
6 We've made motions for that document, and we've served
7 subpoenas for that document. We want depositions,
8 especially of Hamilton Kipp and James Hastings. They
9 won't agree to any discovery. The motion that they made
10 was granted on a reply affidavit which they produced a
11 document saying that Michael Goodall received something
12 in the mail, but we didn't have even discovery to find
13 out if he'd even answered it or if he really received it.
14 So every single thing that he's talking about, these are
15 things that are open to discovery and to issues of fact.
16 I hope that you adopt the tentative ruling.
17 And by the way, I want to explain to
18 Mr. Thornally and Mr. Hoppe, I'm the administrator of the
19 estate. I was appointed by the probate judge here in
20 Marin County. I don't know why they filed the case on
21 the Goodall Trust in San Francisco when the proper venue
22 and jurisdiction of this case was the same court, the
23 same probate case that appointed me. They should not
24 have been allowed to sue me in a different court than I
25 was appointed from. I was appointed by the Marin County
1 Probate Court, and they should have brought this case in
2 Marin County. Why they should -- they should never have
3 been allowed to bring the case over in San Francisco when
4 all the people died here, they are buried here, their
5 wills are lodged here in the clerk's office in Room 113.
6 You can look up the wills of the Goodall parents and
7 their son. They never had anything to do with San
8 Francisco. They never went there. They didn't even like
9 to cross the Golden Gate Bridge. And because he feels
10 that they couldn't -- we had three hearings in Probate
11 Court. I would have prevailed in all three hearings.
12 And that's why they went over to San Francisco three
13 months later and got a case over there, because they
14 realized that they couldn't win here.
15 So I'm hoping that you will adhere to the
16 tentative ruling. I'm also hoping that you will order
17 discovery that they have to produce the documents which
18 they claim to be relying on.
19 THE COURT: I don't issue -- there's not a
20 motion for -- to compel discovery, as I'm hearing. I'm
21 just hearing the summary judgment motions.
22 Anything else, sir?
9 MR. HOPPE: Okay. I was the -- Mike's
10 roommate for 13 years at that place. I was also his
11 caretaker the last couple of years. I don't know if
12 that's relevant to this case or not. I also know what
13 Mike wanted.
14 THE COURT: Okay. That's not what I'm doing
15 right now.
16 MR. HOPPE: Okay.
24 THE COURT: Okay. Thank you.
25 MR. HAHM: I'll make a couple of brief points,
1 your Honor. And then I didn't address the motion with
2 respect to Mr. Hoppe and Mr. Thornally, and I'd like to
3 address that very, very briefly.
4 First, Security Specific Bank became Bank of
5 America back in 1991. We were the successor. You'll
6 probably take judicial notice of it, but that was a very
7 big transaction.
8 Number two, there was no form shopping when we
9 initiated recently the Petition for Instructions in San
10 Francisco Superior Court. We chose that venue because
11 after Rachel Goodall died in 1999, Michael Goodall
12 initiated a proceeding about the Goodall Trust in San
13 Francisco. There was already a case opened there and,
14 therefore, we filed our petition there.
15 In addition, ever since Rachel Goodall had
16 passed away in 1999, Bank of America was the trustee of
17 the Goodall Trust and had been operating under the
18 assumption and belief that the house was an asset of that
19 trust. So, again, if something had happened there,
20 someone had been hurt, it wouldn't have been Michael
21 Goodall who was responsible; it would have been the
22 Goodall Trust. And as the trustee, Bank of America would
23 be responsible for overseeing that. Bank of America, for
24 example, would be the party that would initiate a quiet
25 title action. If there was some sort of cloud on title
1 -- if there was a neighbor, for example, who alleged he
2 had an easement over the backyard, well, it would be Bank
3 of America, as the trustee of the Goodall Trust which has
4 the title to the property, that would initiate that UD
5 action. What happened in San Francisco in the probate
6 proceedings wouldn't change what the title is; it just
7 allowed us to proceed as if it were an asset of the
8 Goodall Trust.
9 And everything Mr. Sloan has said about
10 disputes concerning documents, discovery, amendments to
11 the Trust, this has all been presented to San Francisco
12 Superior Court twice -- multiple times, I should say, in
13 the probate proceedings. There has been adjudications
14 against him. They should be final, number one, because
15 the time to appeal them has elapsed. And I'm happy to
16 brief that. I can demonstrate to your Honor very clearly
(See Record, Volume V, Pages 1704-1709)
As you can see from the above colloquy, Bank of America claims the
right to be the trustee because they bought out Security Pacific Bank.
However, Robert J. Rothman, as attorney for Mike Goodall, brought this
point up too, saying that Bank of America was then purchased by a bank
in North Carolina who then changed its name to Bank of America, so
therefore the Bank of America today is not at all the same bank as the
bank that existed by that name in 1990. (See Record, Volume I, page
180) Thus this issue was raised at an early stage and Bank of America
still has not responded. They have not explained how the purchase of
the assets of Security Pacific Bank by Bank of America followed by the
purchase of the assets of Bank of America by Nations Bank that then
changed its name to Bank of America gave the current Bank of America
the “right” to be the Trustee of the Goodall Trust.
More importantly, according to the Trust dated September 12, 1990,
the bank only becomes involved “If Kenneth Michael Goodall is not
qualified for appointment as trustee, or if he later dies, resigns or
is removed pursuant judicial procedure or for any reason fails or
ceases to act as trustee”. (See Record, Volume I, page 119). None of
these things happened so Michael Goodall and not Bank of America was
the rightful trustee.
Regarding the proceedings in Superior Court, there was no fact
hearing in the superior court and no findings of fact. It is not true
that these issues were heard and decided by the San Francisco Court.
There was no sworn testimony, no declarations, no verifications, no
evidence presented (because counsel for Bank of America said that the
evidence had been lost). (See Record, Volume II, page 587-590) Thus,
there was none of the things that normally accompany a judicial
determination of facts.
This case is running in parallel in two different courts and these
two courts have reached the opposite decisions. They know about each
other and refuse to change their rulings so review by an appellate
court is necessary. This case is running in parallel between two
different courts in Marin and San Francisco, with opposite results. In
the San Francisco case, the case is Case No. PTR 99-273030. In Marin
County, the Case number is PRO1100596.
There has never been any discovery in this case except for a
deposition of James R. Hastings in which he refused to produce any
documents and he testified that he could not remember anything about
this case and had lost or misplaced all his files of this case and so
he had nothing to produce. (See Record, Volume II, pages 701-717)
In almost every instance, the issues in the San Francisco Case are
exactly the same as the issues in the Marin Probate Case, yet the
results have been the opposite. For example, the Bank of America filed
a Statute of Limitations Claim in the Marin case. Judge Verna Adams
dismissed that claim in a reasoned and lengthy opinion on April 16,
2012. Undaunted, Bank of America filed exactly the same claim in San
Francisco, which resulted in an order from which an appeal was taken
here.
Similarly, The Bank of America took the ruling by the San Francisco
Court here and tried to enforce it over in Marin in a motion for
summary judgment. However, the Marin County Superior Court Judge
denied the claim by Bank of America, saying that the San Francisco
order was interlocutory and non-final and thus non-enforcable in
Marin. The Marin County judge ruled that Bank of America must file a
claim to quiet title in Marin since the property is in Marin. However,
throughout the two years that this litigation has been going on, Bank
of America has been unwilling to submit its claims to the jurisdiction
of the Marin courts, for reasons best known to Bank of America. This
has resulted in this stalemate which will take action by the appellate
courts to resolve.
Because of these conflicting decisions by different judges in
different courts, the situation is in stalemate. The Goodall Estate
consists of an estimated two million dollars in cash and securities
plus a house known as “The Goodall Mansion” located at 461 Peachstone
Terrace, San Rafael California 94903. Bank of America has all the
money, having stolen it back in 1999 which resulted in this case, PTR
99-273030, whereas the Estate of Goodall has possession and control of
the house. Bank of America has been unsuccessful in its efforts to
oust the Goodall Estate from the house. Thus, it appears the parties
will be locked in stalemate for an extended period of time, possibly
even for years or forever.
The prior order dated May 16, 2012 was NOT a judgment. It did not use
the word “judgment”. It did not finally decide the action. It left
unopened and undecided almost every question about this case. Indeed,
the Bank of America moved to enforce this order over in Marin County
Superior Court and Judge Roy Chernus there said that the May 16 order
was NOT a final judgment and was interlocutory.
As Judge Roy Chernus of Marin County Superior Court stated in a one
of the related cases in Marin County, “this is not your usual garden
variety type of action” because while this case has been pending in
the San Francisco Probate Court the same case has been pending over in
the Marin County Probate Court. Two courts have been handling the same
case.
Plaintiff here, Bank of America, lost their initial motions over in
Marin County and then opted for the greener pastures in San Francisco
Probate Court. As this case has progressed, every time Bank of America
lost a motion over in Marin County they filed the same motion in San
Francisco where they won.
Regarding the statute of limitations claim that Bank of America made
in an “Additional Reply” in which the Administrator of the Goodall
Estate did not have a chance to respond, Bank of America had made
exactly the same Statute of Limitations claim in Marin County and
Judge Verna Adams had dismissed that claim in a reasoned and lengthy
opinion on April 16, 2012. Undaunted, Bank of America made that
identical claim on San Francisco Probate Court.
Appellant was prevented by the actions of opposing counsel and
actions of the judge which made it impossible for him to file an
appeal any sooner than he did. Indeed, Appellant waited in the court
room for the San Francisco Judge to sign his final order in this case
so he could go down to the filing room to file his notice of appeal
the same day.
In view of the actions of the San Francisco Probate Judge in making
this case “Appeal Proof” by among other things waiting a full two
months before signing the order denying the petition for rehearing,
the judge prevented an earlier appeal. The order was submitted to the
judge for signing on July 27, 2012. The judge did not sign it until
September 26, 2012.
More than that, actions by Bank of America and Guide Dogs for the
Blind unethically to chase Petitioner's Counsel off the case have made
it impossible for Petitioner to retain new counsel. They did this by
repeatedly filing motions for sanctions against existing counsel.
Their first motion for sanctions which demanded attorneys fees between
$13,000 and $16,000 against both the Administrator of the Goodall
Estate and his counsel was filed on June 29, 2012. That motion was
denied by Judge Busch on June 19, 2012.
However, on the very next day, July 20, 2012, Bank of America filed a
second motion for sanctions even though nothing had changed overnight
since the first denial.
A Third Motion for Sanctions was filed by Bank of America on August
14, 2012.
All these motions for sanctions filed by a big and powerful Bank of
America and their counsel one of the largest law firms in California
had the effect of understandably frightening the counsel for the
Goodall estate. As no man can serve two masters, Counsel for the
Goodall estate felt that he had to withdraw as counsel for the estate
in order to defend himself against these successive motion for
sanctions which threatened his professional career.
Meanwhile, Sam Sloan, the Administrator of the Goodall Estate, the
Petitioner here, found it impossible to retain another counsel because
every other attorney is afraid of Bank of America and their attorneys
too. Nobody wants to stick their head in the lion's mouth.
As a result, Petitioner had no choice but to wait until these motions
for sanctions and motion to withdraw were decided before he could file
a notice of appeal. Petitioner was literally waiting in the courtroom
for the judge to sign these orders so he could run down to the clerk's
office and file this notice of appeal the same day.
After considering this matter, this court should dismiss this case
entirely. The proper Probate Proceeding involving the Goodall Estate
is now pending over in Marin County Probate Court. Case No. PR
1100596. The Goodall wills are admitted into probate in Marin.
Everything about this case happened over in Marin. The only reason
Bank of America filed in San Francisco is they do not like the judge
over in Marin.
In addition, Bank of America should not have been allowed to use the
case number of this inactive case to file a new claim for a different
cause of action. There was no activity in this case for 11 years from
March 2000 until April 2011. (See Record, Volume I, pages 185-186)
This case should have been dismissed for inactivity under California
Code of Civil Procedure Section 583.410. Thus this case should be
dismissed with all orders vacated and Bank of America should be
directed to file their claims in the right court, which is Marin
County Probate Court.
We believe that the May 16, 2012 order is not a final judgment. It
does not contain the word “Judgment”. It does not include findings of
fact and conclusions of law. It does not award money or property to
anybody. It does not finally decide the action. However, the orders of
the San Francisco Court cannot be ignored because Bank of America
claims that it is a judgment and they have moved to enforce it as a
judgment.
In August and October, 2012 Bank of America filed two unlawful
detainer actions in Marin County seeking to evict the Goodall heirs
and Goodall Estate from the Goodall Mansion at 461 Peachstone Terrace,
San Rafael, California. These actions were unsuccessful, for the same
reason Appellant has stated from the beginning. Judge Roy Chernus
wrote in his ruling of November 28, 2012:
“As against Sam Sloan and Kayo Kimura plaintiff seeks judgment for
possession based on orders of the San Francisco Superior Court and the
July 27, 2012, Sixty-day notice. Plaintiff has put its title to the
property "at issue" in this unlawful detainer proceeding. The bulk of
the allegations in the Complaint and the "Undisputed Facts" in support
of the subject motion for summary judgment are addressed to plaintiffs
extensive efforts by way of collateral proceedings in San Francisco
Superior Court to confirm that the premises is an asset of the Trust
for Michael created under the Goodall Trust dated September 12,l990,
that title to the premises is in Bank America as trustee, and that
plaintiff may administer the premises pursuant to the terms of Trust.
Yet despite plaintiffs extensive allegations detailing the San
Francisco proceedings, plaintiff does not actually allege or
demonstrate via undisputed facts that the orders of the SF Sup. Court
are final or that the issue of its title to the subject property has
been fully and finally determined.
Plaintiff appears to base its right to commence this unlawful detainer
proceeding upon the Minute Order of the SF Superior Court dated July
19, 2012, denying defendant's petition for reconsideration as
plaintiff served the subject 60-Day Notice eight days later on July
27,2012, even though the court's order was not formally entered until
September 27, 2012. (See Complaint, par. 19, and Exh. E) Even assuming
the order denying defendant's petition for reconsideration constitutes
a final and binding determination of plaintiffs title (though not
specifically alleged) plaintiff served the 60-day notice before that
order was formally entered on September 27, 2012. This unlawful
detainer action was filed a mere 12-days later on October 9, 2012. As
stated by the Court in Greenhut v. Wooden {1982} 129 Cal.App.3d 64,68,
this is not your usual garden variety type of unlawful detainer action
where the issue of title is strictly limited. Having put its own title
in issue and by relying on the San Francisco Trust proceeding as the
source of its authority to commence this proceeding plaintiff should
demonstrate that title to the property has, in fact, been finally
adjudicated in its favor. Plaintiff's pleading and evidence falls
short of demonstrating a final adjudication of title in its favor and
raises a question of fact whether the alleged 60-day notice was served
prematurely.
As to defendants Hoppe and Thornally, a complaint for unlawful
detainer must allege that the tenant continues in possession of the
premises. (CCP $1161.) No cause of action for unlawful detainer exists
if the tenant has quit before the action is filed. Defendants Hoppe
and Thornally have filed answers admitting they have relinquished
possession of the premises. In its motion, plaintiff claims that while
Hoppe and Thornally have relinquished physical possession of the
premises, “plaintiff is informed that Hoppe and Thornally have not
relinquished their alleged right to possession of the premises." If a
landlord wishes to determine rights to possession but not physical
possession, it cannot do so by way of summary unlawful detainer; a
quiet title action would be the proper remedy.”
Thusly, Judge Chernus stated in essence the same thing petitioner
Sloan has been saying from the first pleading which is that the only
way for Bank of America to get what it wants is to file a petition in
Marin County. Bank of America can never succeed in obtaining access to
real property in Marin by bringing cases in San Francisco.
This action by Bank of America should be dismissed and thrown out of
court for a deeper reason, which is that Bank of America has never had
standing in this case. Bank of America was never the legal trustee of
the Goodall Trust. Kenneth and Rachel Goodall were the trustees. Upon
the death of Kenneth, the Trust documents show that Michael became the
co-trustee with his mother and upon her death Michael became the sole
trustee. The documents showing this are annexed as exhibits here. At
no time did Bank of America have any rights in this case. They simply
usurped and stole this case because of the millions of dollars
involved. What happened is Bank of America stole the money, pure and
simple. They have no right and no claim to the Goodall assets.
In addition, Guide Dogs for the Blind has no standing and no claim.
The trust document upon which Bank of America and Guide Dogs for the
Blind relies (although they have failed and refused to produce it and
claimed to have lost it) does not establish their right.
Paragraph 6 of the petition filed by Bank of America contains the
following noteworthy statement.
No title documents have been found placing title in the residence in
the name of petitioner [Bank of America] as Trustee of the Trust for
Michael.” (See Record, Volume I, page 189)
What Bank of America was asking here was that the title to the
Goodall Mansion be changed by order of the San Francisco Superior
Court. However, as Appellant Sloan pointed out in his pro se answer to
this petition, “It is HORNBOOK Law that any proceeding involving real
property must be filed in the jurisdiction where the property is
located.” (See Record, Volume I, page 287)
Paragraph 6, note 1 of the petition filed by Bank of America contains
another noteworthy statement.
“The Provisions of the Bypass Trust are somewhat unclear with
respect to the proper beneficiaries of the Trust for Michael in the
wake of Mike Goodall's Death.” (See Record, Volume I, footnote at the
bottom of page 189)
“Somewhat unclear” is a massive understatement or misstatement. The
trust documents have been shown to several attorneys specializing in
such matters. All them say that the trust documents are nonsense.
“Absurd”, “ridiculous” and several other adjectives are used to
describe these trust documents. A well known San Francisco attorney
said that the attorney who drew up this trust should be disbarred for
incompetence.
Michael Goodall died on October 5, 2010 in his home known as “The
Goodall Mansion” at 461 Peachstone Terrace in San Rafael, Marin
County, California. Petitioner found the Goodall Will among his papers
and filed it in Marin County Probate Court on January 28, 2011. On
February 1, 2011, Petitioner filed a petition in probate. After
consents were obtained from all of the heirs of the Goodall Estate,
petitioner petitioned and after two hearings was appointed
administrator of the estate.
Petitioner had the key to the house, as he has been a resident of the
house. However, on February 28, 2011, while petitioner was away for a
few days, there was a break-in and burglary in the house. The entire
contents of the house was removed including all legal papers and
documents of the Goodalls. When the burglary was discovered, 911 was
called and this was reported as a burglary. Deputy Anthony Savas of
the Marin County Sheriff's Department responded to the call. Deputy
Savas said that he had been patrolling the area during the previous
days and had observed a large trash dumpster in front of the house
with a Spanish guy bringing stuff out of the house and putting it in
the dumpster. However, Deputy Savas had not stopped to inquire, as
this had seemed to be a routine case of somebody moving out.
On April 21, 2011, Bank of America by way of collateral attack had
filed a petition in San Francisco Superior Court seeking essentially
to overturn the Marin County Probate Order which had listed among
other things the Goodall Mansion as an asset of the Goodall Estate. In
filing this new petition, Bank of America had used an old case number,
PTR 99-273030. That was the number of a case Michael Goodall had filed
in December 21, 1999 shortly after his mother had died in which he
sought the removal of Bank of America as Trustee on many grounds
including the grounds that Bank of America was not the bank named in
the Trust documents and that the proper trustee was Michael Goodall
himself and if not himself then at least some bank not openly hostile
to him as Bank of America was.
Page 18 of a trust document, which Bank of America claims has been
lost but they claim is controlling, but which we are prepared to prove
was never signed by any of the Goodalls, especially since Col. Goodall
was hospitalized and on his death bed with Esophageal cancer, had a
feeding tube inserted in his abdomen and was unable to speak, contains
the following provision:
“(d) If MICHAEL does not survive the surviving settler
and leaves no issue who survive the surviving settler, the trustee
shall distribute the trust property twenty thousand dollars ($20,000)
to each of the then living brothers and sisters of the trustor RACHEL
A. Goodall and the remainder to GUIDE DOGS FOR THE BLIND OF MARIN,
INC., of San Rafael California.”
The problem is that this provision only applies if Michael dies
BEFORE his parents do. However, Mike survived his parents by 11 years.
Kenneth F. Goodall was born 01 Mar 1916 and died 10 Sep 1994 at age
78. His Social Security Number was 444-40-8884. Rachel A. Goodall was
born 23 May 1916 and died 07 Jun 1999. Her Social Security Number was
359-07-1738. Kenneth Michael Goodall was born 13 Jan 1946 and died 05
Oct 2010. His Social Security Number was 559-70-3352.
Since Mike Goodall died 11 years after his parents did, that
paragraph does not apply. More than that, nowhere in the entire
document, 40 pages long, is there any mention of what happens if Mike
dies after his parents do, except that the trust documents state that
the trust terminates upon the death of Mike Goodall.
This provision and the entire document makes it completely 100% clear
that the Goodall Estate belongs entirely to Mike Goodall and his
heirs, unless Mike Goodall dies before his parents do. There is no
possible way that Guide Dogs for the Blind gets anything out of the
Goodall Estate. Under no interpretation of the Goodall Trust does
Guide Dogs for the Blind get anything.
Yet, Bank of America, in its initial petition filed in San Francisco
Superior Court, said that it was due to drafting errors that the trust
documents mistakenly do not give any money to Guide Dogs for the
Blind. Bank of America asked the Superior Court to in effect rewrite
the trust documents so as to have the Goodall Estate go to the Dogs.
At the first hearing in San Francisco Superior Court on May 25, 2011,
Petitioner appeared in pro per because he felt it absurd and
ridiculous that Bank of America would file their petition, because the
trust documents clearly DO NOT give any part of the Goodall Estate to
the Dogs and secondly because this case was already pending as a
probate case in Marin County that clearly had jurisdiction. The
Goodalls all lived and died in Marin County, all of their property
including their house was in Marin County, all their documents were
executed in Marin County and there was nothing about this case that
had anything to do with San Francisco County. Thus, San Francisco
County obviously does not have jurisdiction. Petitioner expected that
the San Francisco Court would throw the case out immediately.
In addition, Guide Dogs for the Blind is behind all of the other
heirs. The trust provides that each of the Goodall siblings gets
$20,000. Rachel Goodall had five siblings, three brothers and two
sisters, and Kenneth Goodall had two brothers. Many of them are dead
but they all married and had children, some of whom were adopted.
There are twenty-three Goodall heirs listed on the service list and
they all have the right to contest this case. Clearly, only the Marin
County Probate Court has the jurisdiction, venue and competence to
decide these claims.
In addition, the direct heirs of Michael Goodall have a claim. The
trust provides that his wife and/or children inherit from the trust.
Guide Dogs for the Blind are at the bottom of the totem pole. This
case goes to the Dogs and they get money only after all of these other
people and even then the Dogs do not get anything unless Michael dies
before either of his parents do, which did not happen.
Because of all these factors, Appellant assumed that the San
Francisco case would either be dismissed or else transferred to the
right court, which was Marin County Probate Court. Petitioner was thus
shocked when the San Francisco judge with a wave of the hand and
without giving any reason for the decision or indeed without saying
anything at all ruled in favor of Bank of America and signed an order
that had been handed up without even allowing the Petitioner to see
and comment on the order that was being signed.
Appellant then realized that he had better retain counsel. After a
long search, Appellant found a qualified attorney, Sam Ware, willing
to represent the Goodall Estate on a Contingency Fee basis. This was
necessary because Bank of America had already taken all the money.
Col. Kenneth and Rachel Goodall had never had an account with Bank of
America, not even a simple checking account. Col. Goodall was retired
military officer, so most of the Goodall money was with USAA
Investment Management in San Antonio, Texas. They also had smaller
amounts with mutual funds and stock trading accounts. None of this was
with Bank of America or anywhere in the state of California.
Right after Rachel Goodall had died in June 1999, Bank of America
through its attorney James R. Hastings had contacted USAA Investment
Management and directed that all Goodall funds be transferred to Bank
of America. Mike Goodall had not been told about this and had no idea
that this had happened. In short order, all of the bank accounts that
Mike Goodall had been operating under power of attorney were stripped
of their assets. Mike Goodall was left destitute and without funds.
That is the reason why he filed this case on December 21, 1999.
Bank of America completely stonewalled, as they continue to do this
day. They refused and still continue to refuse to give Mike Goodall or
indeed any of the Goodalls any accounting or any information about
what happened to the Goodall Millions. It was as if the funds had
disappeared into a Black Hole.
Just before Col. Kenneth Goodall died in 1994, he had an accounting
done of the funds. The accounting shows that the Goodalls had slightly
less than one million dollars in cash and securities plus the fully
paid for house. Rachel Goodall was an excessively frugal person. She
basically never spent money on anything, so the money should at least
have doubled since 1994.
After the adverse ruling on May 25, 2011, Petitioner was able to
retain counsel in time for the next hearing in San Francisco Probate
Court. Meanwhile, several hearings on the same subject matter had been
held in Marin County Probate Court.
It is important at all times to remember that this case is running in
parallel in two different courts: San Francisco Superior Court and
Marin County Probate Court. Obviously, the Marin County Court is the
right court and at each hearing in San Francisco Petitioner has
demanded transfer of this case to Marin.
At the next hearing in San Francisco, Bank of America brought
attorney James R. Hastings to court prepared to have him testify as a
witness, as he had been attorney for both the Goodalls, the Goodall
Trust and the Bank of America. Hastings was going to testify that the
money should go to the Dogs. This was one of just many obvious
conflicts on interest by James R. Hastings. However, Petitioner's new
counsel Sam Ware asked for the opportunity of discovery. Bank of
America protested vehemently and said that there should be no
discovery at all. They especially objected to any discovery of the
money. They refused to reveal anything about the Goodall millions, how
much it was, were they had gotten it from and what they had done with
it.
Finally, Judge Mary Wiss agreed that there should be some discovery.
Whereas Bank of America wanted to hold a hearing and finish the case
that day, the superior court judge said that there should be
discovery.
However, as will be seen, there has never been any discovery on this
case, because Bank of America has been completely stonewalling. Not
one document has been produced either by Bank of America or by
attorney James R. Hastings. Bank of America has absolutely refused to
produce anything. James R. Hastings has testified that he has lost the
files and thus does not have anything. In addition, he has stated that
to provide any discovery would violate the attorney Client Privilege
of Bank of America because he was counsel for Bank of America at the
same time that he was counsel for the Goodalls. (See Record, Volume
II, page 570)
Sam Ware then subpoenaed James R. Hastings for a deposition and
required him to bring all documents and files pertaining to this case.
Hastings appeared for the deposition on November 14, 2011 but did not
bring any documents at all. His attorney Don Lesser said that the
subpoena was overbroad and as Hastings had been attorney for Bank of
America too it would violate the attorney client privilege of Bank of
America and that the files and notes pertaining to this case had all
been lost. At the oral deposition, Hastings testified that basically
he could not remember anything about the case. (See Record, Volume II,
page 542-558)
On December 14, 2011, Sam Ware filed a motion for discovery and
production of documents pertaining to this case. On December 29, 2011,
Don A. Lesser, Counsel for James Hastings, filed opposition to the
motions for discovery, saying that it would be “oppressive and
burdensome” upon James R. Hastings and also violate the attorney
client privilege of Bank of America because James R. Hastings had been
attorney for Bank of America at the same time that he was attorney for
the Goodall and the Goodall Trust. (See Record, Volume II, page 570)
Not long thereafter Don Lesser withdrew as counsel for James R.
Hastings, but without filing a notice of withdrawal with the Superior
Court, even though he had appeared in the case.
On January 20, 2012, Judge Busch denied the motion for production of
documents, especially the trust Document, but said that James R.
Hastings was required to search his files to look for the trust and if
he could find it he was required to produce it and otherwise he must
file a declaration stating what efforts he had made to find the trust.
On February 2, 2012, James R. Hastings filed a declaration stating
that he had searched all his files and was unable to find the trust.
(See Record, Volume II, page 612-613)
On February 6, 2012, Nancy Rodgers, a friend and neighbor of the
Goodalls, filed a declaration stating that her purported witness
signatures on the Goodall Wills, which were pour over wills pouring
money into the trust, were not her signatures and she had never signed
any such documents. As there had never been any money in the trust,
these pour over wills were essential to the claims by Bank of America
and Guide Dogs for the Blind to be entitled to any of the Goodall
millions. (See Record, Volume II, page 652-653)
After several more pleadings were filed on all sides, on April 24,
2012, Bank of America filed an additional reply asserting for the
first time in this case that objections to the 1994 Trust were time-
barred by a Statute of Limitations. (See Record, Volume III, page 925)
Although this was the first time Bank of America had made this claim
in this case, they had made exactly the same claim in the parallel
proceeding going on in Marin County Probate Court. That claim had been
dismissed by Marin County Probate Judge Verna Adams in a lengthy and
reasoned decision on April 16, 2012. The statute of limitations claim
was also entirely bogus and ridiculous for several reasons the most
obvious being that Michael Goodall had indeed contested the right of
Bank of America to be the trustee by filing this very case on December
21, 1999. Also, the statute of limitations claim was not accompanied
by any evidence or a declaration in support. In addition, the words
“as amended” had been omitted or when it was included, obviously it
logically referred to the 1999 Amendment to the Trust which had made
Mike Goodall the Trustee. The 1990 Trust had made Michael Goodall the
beneficiary of the trust and the 1999 Amendment had made Michael the
co-trustee of the trust, so there was no reason for Michael to object
to either of them. (See Second Amendment to the Goodall Trust in the
Record, Volume II, pages 55-57)
Because of the shortness of time before the previously scheduled
hearing, Samuel Sloan and his counsel did not have time to respond to
this “additional reply” and so asked for additional time which was
denied from the bench. And so, Judge Busch signed the order dated May
16, 2012 from which the first appeal is taken, without a fact hearing
of any kind and without any findings of fact or conclusions of law.
(See Record, Volume III, page 937)
On May 25, 2012, seven days after the entry of the order of May 16,
2012, Samuel Sloan filed through counsel a motion for discovery to
compel the production of documents including the documents forming the
basis of the newly made statute of limitations claim. This was not
filed as a motion for reconsideration, because Sloan through counsel
deemed the May 16, 2012 order to be an interlocutory order, not a
final judgment, because, among many other things it does not use the
word “judgment”, and does not dispose of all of the issues involved in
this case. However, this motion was filed within the time limit for
motions for reconsideration to be on the safe side in case the courts
were later to decide that it was a judgment. (See Record Volume III
page 970)
Sam Sloan, Administrator of the Goodall Estate, had been caught off
guard by the May 16, 2012 decision because he had naturally assumed
that there would be some sort of trial or fact hearing and Bank of
America would be required to present their evidence if any before the
court would rule. It was not to be expected that the judge would
decide this complicated case abruptly from the bench without any
hearing. Because of this surprise ruling, the administrator started
searching through the 40 or 50 storage boxes of material Bank of
America had stolen when they broke into the Goodall Mansion on
February 28, 2011 but then were forced to return on June 10, 2011 by
proceedings in the Marin County Probate Court.
During these searches, the administrator found a treasure trove of
documents. All or almost all of these documents had been prepared by
James R. Hastings, Attorney for Bank of America, so Bank of America
had these documents all along but had failed to produce them. Of great
importance was a Power of Attorney the Goodall Parents, Kenneth and
Rachel Goodall, had given their son Michael on August 24, 1994 on the
Death Bed of Kenneth, placing Michael with power of attorney over the
Goodall Trust. (See Record, Volume III, pages 977-993) This proved
that the claim by the Attorney of Bank of America that the Goodall
parents did not trust Michael with their money was false. Also
included in the same treasure trove of documents was a signed health
care directive by Kenneth Goodall that he be allowed to die of the
Esophageal cancer of which he was suffering at the time (See Record,
Volume III, pages 955-966) and an unsigned 1994 Goodall Trust showing
that Kenneth had never signed the 1994 amendment to the trust. Kenneth
Goodall was in the final stages of cancer and a feeding tube had been
inserted in his abdomen on July 17, 1994. He died on September 10,
1994. These documents were included in the exhibits Sloan filed in his
May 25, 2012 motion.
On the same date, Sloan filed a declaration of David S. Moore, a
highly regarded forensic document examiner, who stated that upon
comparing the known and authentic signatures of Kenneth Goodall found
on other documents, on checks, on his personal notebook and the like
and comparing them with the signature on the purported 1994 amendment
to the trust, they were not consistent but he could not made a final
determination as to whether the signature was authentic or not without
being allowed to examine the actual trust document, but such an
examination had been denied. (See Record, Volume III, pages 955-966)
Included among the documents given to David S. Moore for examination
is an extensive handwritten notebook maintained by Col. Kenneth F.
Goodall showing his plans and intentions regarding his death and the
Goodall Trust. This notebook shows that it was his intention that only
the house would be in the trust, not the money. It was also his
intention that if Michael Goodall married or had children, they would
inherit from the trust. The Goodall parents were actively encouraging
their son to get married and start raising a family. They were
certainly not going to create a trust that would disinherit their son
and his future wife and children. Administrator Sam Sloan brought this
notebook with him to court every time this case was set for a hearing.
However, Judge Busch by denying any hearing on this matter prevented
the Goodall Estate from offering this notebook and the conclusive
proof that it contains into evidence. The notebook is still today in
the possession of David S. Moore, forensic document examiner.
On June 27, 2012, Gary Rothstein, attorney for Bank of America,
served on Sam Sloan and his counsel Sam Ware a motion for sanctions
against the Motion for Discovery dated May 25, 2012 asking for
sanctions against Sam Sloan personally and against Sam Ware personally
in the amount of $13,596 for filing the motion for discovery which
they deemed to be a motion for reconsideration. In a cover letter,
Gary Rothstein, attorney for Bank of America, stated that unless the
motion for reconsideration were withdrawn he would file the motion for
sanctions, effectively blackmailing the Goodall Estate.
It is important to remember here that Sloan is a volunteer
administrator of the trust because the Goodall Trust has no money
because Bank of America stole it all and Sloan is not named in the
will. In addition, Attorney Sam Ware took this case as a contingency
case. By serving this motion for sanctions, Bank of America was
threatening Sloan and his counsel with a substantial financial loss of
$13,596 whereas they had nothing to gain from this case. (Record,
Volume III, page 1088)
So, the Administrator of the Goodall estate had everything to lose
and nothing to gain by continuing this case.
Nevertheless, the administrator and his counsel did not Cave in yet.
On June 29, 2012 Guide Dogs for the Blind joined this motion by
filing their own motion for sanctions for filing this petition for
rehearing. (See Record Volume III page 1060)
A hearing was held on these motions on July 19, 2012. Judge Busch
denied the motion which he deemed to be a motion for reconsideration
and he also denied the motion by Bank of America and Guide Dogs for
the Blind for Sanctions against the Administrator of the Goodall
Estate and Sam Ware, Counsel for the Goodall Estate.
On July 20, 2012, the very next day, Bank of America filed a new
motion for Sanctions against the Administrator of the Goodall Estate
and against Sam Ware Counsel for the Goodall Estate seeking sanctions
in the amount of between $13,000 and $16,000 against each of them.
This motion had been denied from the bench the previous day so
obviously nothing had changed. (See Record, Volume III, pages
1079-1088)
On July 27, 2012, the parties submitted for the judge's signature an
order denying the motion for reconsideration heard on July 19, 2012.
Sam Sloan, Administrator of the Estate, planned and intended to file a
notice of appeal as soon as the order was signed. Instead the judge
sat on the order for two full months and did not sign it until
September 26, 2012. It was entered the following day. This delay of
two months put it past the normal time for filing a notice of appeal.
(See Record, Volume IV, pages 1308-1312)
On August 14, 2012, Bank of America filed a third Motion for
Sanctions against the Administrator of the Goodall Estate and his
attorney. (See Record, Volume III, pages 1110)
On September 7, 2012, as a result of having three successive motions
for sanctions filed against him, Sam Ware filed a motion to be
relieved as counsel. He said that he could not effectively oppose the
repeated motions for sanctions against him while also acting as
counsel for the estate. No man can serve two masters so he needed to
be relieved as counsel so that he could defend himself against actions
by Bank of America and their counsel which threatened his professional
career.
Now again Sloan could not file his notice of appeal because he had to
wait until the judge decided the motion for sanctions and the motion
by his counsel to withdraw to escape the sanctions. As Sloan was
represented by Counsel, he could not file the Notice of Appeal by
himself. In addition, as these motions affected the merits of the case
and the judge was retaining jurisdiction over the case, there remained
the possibility that the judge would reverse himself and the case
would continue.
Finally, the judge held his hearing on the motion to withdraw which
was strenuously opposed by Sloan and granted the motion on November
15, 2012. On the same day, Judge Busch held his hearing on the motion
for sanctions and denied that motion, basically saying that there was
enough grounds for Counsel for the Goodall Estate to file a motion for
reconsideration but not enough grounds for him to grant it.
On November 21, 2012, Judge Busch signed the order denying the Motion
for Sanctions. Sloan filed his notice of appeal the very same day.
ARGUMENT
The immediate issue before the court is the motion to withdraw as
counsel. Appellant has attempted to research the case law on this and
has found no case in which an attorney was allowed to withdraw under
the circumstances here. The sole reason given in the motion to
withdraw was concern about the motion for sanctions. However, the
threat of sanctions is not grounds to withdraw from a case. Otherwise,
in every case an aggressive litigant could easily chase opposing
counsel off a case.
A reason he gave at the hearing was “disagreements” about whether to
file the petition for rehearing. He obviously said this to get himself
off the motion for sanctions. One can see by a perusal of the record
that includes many documents written, signed and filed by Sam Ware,
that he substantially agreed with the views of the Administrator Sam
Sloan about this case. On one point, he was not willing to go as far.
Although the Administrator of the Estate, Sam Sloan, declared the
signature on the purported trust dated August 24, 1994 (just 17 days
before Col. Kenneth Goodall died) to be “a forgery”, this was based on
the fact that he knew the Goodall Family for 50 years plus he had
access to their personal notes, letters and files. He also knew Mike
Goodall well enough to know that he would have never gone against the
wishes of his parents. The attorney Sam Ware never met the Goodalls,
and so could not be as sure about this, but he did question the
authenticity of the document and demanded that it be produced. The
Bank of America refused to produce the document and said that it had
been lost. So, the result was the same regardless of whether it was “a
forgery” or merely “not authentic”.
Attorneys often have disagreements with their clients. A mere
disagreement is not grounds to withdraw. Attorney Sam Ware did not do
anything different from what Sam Sloan asked him to do. Sam Sloan
expressed satisfaction with his representation and wanted him to
continue and by this appeal is asking that he be reinstated.
In addition, the real client is the Goodall Estate, not Sam Sloan
personally. Sam Ware has an obligation to represent the interests of
all 23 Goodall heirs. Thus, if this court fails to reverse the
decision of the court below, all 23 heirs will be left without legal
representation. Counsel for Bank of America recently stated that the
bank has spent all the Goodall money, the entire two million, and
there is nothing left. So, the Goodall heirs will receive nothing
unless this order is reversed.
Appellant has approached more than a dozen qualified attorneys asking
them to represent the estate and all have declined. They all give much
the some reason. They can see that any attorney who undertakes to
represent the Goodall Estate will be attacked by Bank of America, much
as Sam Ware has been attacked by Bank of America here.
Meanwhile, the case is far from over. We believe that the May 16,
2012 order is not a final judgment. It does not contain the word
“Judgment”. It does not include findings of fact and conclusions of
law. It does not award money or property to anybody. Last month Bank
of America filed a new case against the Estate in Marin County
Superior Court and last week counsel for Bank of America said he is
getting ready to file a new motion in the case presented here in San
Francisco Superior Court.
Clearly, the Estate needs to get legal representation, not just an in
pro per non-lawyer like Sam Sloan, but we cannot get representation if
this order is not reversed.
Going further, this case should be dismissed altogether. The case
under this number PTR 99-273030 was filed by Michael Goodall on
December 21, 1999 demanding the removal of Bank of America as Trustee
of the Trust. The attorney for Michael Goodall was Robert J. Rothman.
The last document filed by Rothman was entitled “Points and
Authorities in Support of Petition to Remove Trustee”. (See Record,
Volume I, page 179) It was filed on March 21, 2000. No response was
ever filed by Bank of America. Unfortunately, at that point Mike
Goodall ran out of money to pay his lawyer. We now know what would
have happened had he paid more money. He would have paid and paid and
paid until whatever money he had ran out, as Bank of America and its
attorneys was prepared to fight like tigers to the end to keep this
estate and to get the Goodall Millions.
Then 11 years passed during which nothing happened in this case.
Then, on April 21, 2011, eleven years and one month later, Bank of
America filed its “Petition for Order Confirming Real Property as an
Asset of the Trust”. (See Record, Volume I, page 186). They used the
old case number to file a new case for the opposite cause of action.
They did this specifically to avoid filing in Marin County Probate
Court where the Goodall Estate had been admitted to probate months
earlier. Their petition states on its face that the purpose is to
change the title to the Goodall Residence and in effect to
collaterally attack the order of the Marin County Probate Court dated
March 21, 2011. (See Record, Volume I, page 187) In his decision on
November 28, 2012, Judge Roy Chernus of Marin County Superior Court
stated exactly that, that the San Francisco petition was filed for
purpose of collateral attack.
Appellant had filed a motion for discovery. The superior court had
ruled in favor of a new claim by Bank of America that a Statute of
Limitations barred petitioner's defense. This claim was obviously
bogus because Mike Goodall had filed this very case back in 1999 to
object to Bank of America being the trustee.
The judge delayed two months in signing the order. This delay of two
months by the judge was what put the case over the time limit to file
the appeal. The order was submitted to the judge for signing on July
27, 2012. The judge did not sign it until September 26, 2012.
The order that Judge Busch signed had not been after proper notice
and opportunity for a hearing. Indeed, there has never been a fact
hearing in this case. There has never been sworn testimony of any
witnesses. There has been no discovery. No documents have been
produced by Bank of America. Hastings says that he has lost the trust
documents. If you look at the case files you will see that there have
been no declarations, no exhibits, no verifications, no findings of
facts and no conclusions of law.
Neither Bank of America nor Guide Dogs for the Blind have ever filed
a brief or a memorandum of law in this case. They have never cited a
single case, they have never explained upon what legal grounds or
theory of law they are entitled to proceed. They have not even
explained what they are even doing appearing in this case as the last
of the Goodalls died more than two years ago. They have no standing to
be appearing in this case. Only the contestants, namely Guide Dogs and
the legitimate heirs have standing.
Meanwhile, James R. Hastings, who says that he has lost the
documents, is teaching a class in Estate Planning. On page 15 of the
current Tamalpais Union High School District Summer Camp Sneak Preview
there is an ad for the next course by James Hastings. It is called
Estate Planning 101. The next class started on April 23, 2013 and the
fee to attend the class is $25.
At a hearing in Marin County Superior Court on November 28, 2012 in
which Bank of America sought to enforce the order from which an appeal
was taken, Judge Roy Chernus ruled that the May 2012 order was not a
final judgment and was interlocutory. According to that ruling, appeal
is unnecessary. However, Bank of America disagrees. They consider May
2012 the San Francisco order to be the final judgment. As a result
this case is stalemated.
The actions of the San Francisco Superior Court Judge attempted to
make this case “Appeal Proof” by among other things waiting a full two
months before signing the order denying the petition for rehearing.
The order was submitted to the judge for signing on July 27, 2012. The
judge did not sign it until September 26, 2012.
More than that, actions by Bank of America and Guide Dogs for the
Blind unethically made it impossible for Petitioner to retain new
counsel. They did this by repeatedly filing motions for sanctions
against existing counsel. Their first motion for sanctions which
demanded attorneys fees between $13,000 and $16,000 against both the
Administrator of the Goodall Estate and his counsel was filed on June
29, 2012. That motion was denied by Judge Busch on June 19, 2012.
After considering this matter, this court should dismiss this case
entirely. The proper Probate Proceeding involving the Goodall Estate
is now pending over in Marin County Probate Court. Case No. PR
1100596. Everything about this case happened over in Marin County. The
only reason Bank of America filed in San Francisco is they do not like
the judge over in Marin.
CONCLUSION
For all of the reasons Set forth above, the decision and order of the
court below must be reversed and this case should be dismissed
entirely.
This document is prepared in Courier New Bold 12 point with a word
count of 13,298 words.
Respectfully Submitted,
April 25, 2013
Samuel H. Sloan
Administrator of Estate
of K. Michael Goodall
with Will Annexed
461 Peachstone Terrace
San Rafael CA 94903
(415) 419-5980
917-659-3397
***@gmail.com
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
No. A137739
SAMUEL H. SLOAN, Administrator of the Estate
of K. Michael Goodall with Will Annexed
Objector and Appellant,
v.
SAM WARE,
Movant and Respondent,
and
Bank of America, N. A. Plaintiff
Verification:
Sam Sloan declares:
I have read the Appellant's Brief I filed in this matter, and I
declare under penalty of perjury under the laws of the State of
California and the contents thereof are true and correct to the best
of my knowledge and belief.
DATED: April 25, 2013
Sam Sloan
CERTIFICATE OF INTERESTED PARTIES AND CERTIFICATE OF SERVICE
Pursuant to California Rules of Court, Appellate Rules, Rule 8.208 the
following is a list of parties who have appeared in this case or are
interested in the outcome of this case. This includes all of the
surviving Brothers and Sisters of Kenneth and Rachel Goodall and for
those who have not survived their known children and grandchildren. I
hereby state that on April 25, 2013 I served a copy of this
Appellant's Brief by mail to all of the following:
Gary D. Rothstein
Manatt, Phelps & Phillips, LLP
One Embarcadero Center, 30th Floor
San Francisco CA 94111
Alicia A. Adornato
Attorney for Guide Dogs for the Blind
Reed Smith LLP
101 Second Street, Suite 1800
San Francisco CA 94105
Guide Dogs for the Blind
Mr. Thomas Horton
Planned Potential Beneficiary Giving Director
Guide Dogs for the Blind, Inc.
350 Los Ranchitos Road
San Rafael, CA 94903
Sam Ware
700 Larkspur Landing Circle, #199
Larkspur, CA 94939
John L. McDonnell, Jr.
Reed Smith LLP
1999 Harrison Street, 24th Floor
Oakland CA 94612
Don A. Lesser
1010 B Street Suite 350
San Rafael CA 94901
Jerry R. Hauser
Miller Hauser Law Group
4 Embarcadero Center, 39th Floor
San Francisco, CA 94111
James R. Hastings
1003 3rd Street
San Rafael, CA 94901
Robert J. Rothman
601 California St Suite 1600
San Francisco, CA 94108
Deborah Rodgers
Bradley Luxury Division
851 Irwin Street
San Rafael CA 94901
Roy Hoppe
461 Peachstone Terrace
San Rafael CA 94903
Frank Thornally
461 Peachstone Terrace
San Rafael CA 94903
Julia Bentley Lemons
Apt. 308
12800 Marion Lane W
Minnetonka, MN 55305-1368
Surviving Sibling of Rachel Goodall
Robert B. Bentley
Timberwood Senior Living Rm. #34
5020 WE 44th St.
Oklahoma City, OK 73135
Helen Beth Bentley Perry
7926 Praver Drive W
Jacksonville,FL 32217
Surviving Sibling of Rachel Goodall
Clenda Fern Bentley Zinar
4536 Chatman Street
The Colony, TX 75056
Beverly Gale Bentley Young
2316 Trenton
McKinney, TX 75070
Vickie Bentley Hankins
14580 NE 6th
Choctaw, OK 73020
Jeffrey Bentley
4701 N Douglas Boulevard
Spencer, OK 73084
Chad Everett Bentley
1609 Teepee Trail
Kingsland, TX 78639
Jeanette Goodall Phillips
152 S llth Street
Salina, Kansas 67401
Kristin Kane
University of California
Berkeley College of Engineering
College Relations
208 Mclaughlin Hall #1722
Berkeley, CA 9472A-1722
Bank of America
1000 4th St.
San Rafael, CA 94901
A137739 Division 4
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
First Appellate District
Division Four
____________________________________
SAMUEL H. SLOAN, Administrator of the Estate
of K. Michael Goodall with Will Annexed
Objector and Appellant,
v.
SAM WARE,
Movant and Respondent,
and
Bank of America, N. A. Plaintiff
_____________________________________________________
Appeal from an Order Removing Sam Ware as
Counsel for the Estate of K. Michael Goodall,
San Francisco Superior Court,
The Honorable Peter J. Busch, Judge
Case No. PTR 99-273030
_____________________________________________________
APPELLANT'S OPENING BRIEF
_____________________________________________________
Samuel H. Sloan, en pro per
Administrator of Estate
of K. Michael Goodall
with Will Annexed
461 Peachstone Terrace
San Rafael CA 94903
(415) 419-5980
917-659-3397
***@gmail.com
PRELIMINARY STATEMENT
This is an appeal of an order withdrawing Sam Ware counsel for the
Estate of K. Michael Goodall from appearing in this case. Counsel for
the Goodall Estate sought to withdraw after counsel for Bank of
America filed three successive motions for monetary sanctions. These
motions were filed by Bank of America against Counsel for the Goodall
Estate and personally against the administrator of the Goodall Estate
with Will annexed. These successive motions for sanctions demanded
that Counsel for the Goodall Estate and the Administrator of the
Goodall Estate personally both pay between $13,000 and $16,000 to
Counsel for Bank of America.
These three motions for sanctions were utterly frivolous and without
basis. Their obvious propose was to frighten and intimidate counsel
for the Goodall Estate and to scare him into not zealously presenting
the best arguments and to frighten him so that he would not properly
present the case and would not appeal if necessary. In view of this
plus the obvious hostility of the judge presiding over the case to the
rightful claims of the Goodall Estate, which made it likely that these
motions for sanctions which threatened the professional career of
Counsel for the Goodall Estate would be granted, he filed the motion
to withdraw so as to get himself off the hook on these motions for
sanctions. Even after filing the motion to withdraw, the comments by
Judge Busch at the final hearing on sanctions show that Judge Busch
was on the verge of ordering sanctions anyway. (See Record, Volume V,
page 1685)
As much as we sympathize with the plight faced by Counsel for the
Goodall Estate in a case where he had nothing to gain and everything
to lose in the face of an obviously hostile judge, his withdrawal from
the case left the Goodall Estate and the legitimate Goodall Heirs in
an untenable position because the objective of Bank of America is to
take the entire Goodall Estate and give it all to a charity they
favor, namely Guide Dogs for the Blind. This would leave the
legitimate Goodall heirs with nothing, zero.
Indeed, since then, Bank of America has filed three more cases in
Marin County Superior Court against the Goodall Estate. The most
recent case was filed just one month ago on March 19, 2013. These are
Bank of America vs. Sloan, CIV 1203665, Bank of America vs. Sloan, CIV
1204541 and Bank of America vs. Sloan, CIV 1301196. All three of these
cases are for the same purpose, to take possession of the Goodall
Mansion. However, the first two cases were dismissed after the Marin
County Superior Court ruled in favor of the Goodall Estate.
All of these cases plus the San Francisco case on appeal here are for
the same purpose which is a collateral attack on the March 21, 2011
ruling and order of the Judge of the Marin County Probate Court who
authorized the Administrator of the Goodall Estate, Samuel H. Sloan,
to sell the Goodall Property, including the Goodall Mansion. (See
Record, Volume I, page 293-294) Rather than directly contest and
dispute the right of the Administrator of the Goodall Estate to sell
the Goodall Mansion, Bank of America keeps filing cases in the wrong
courts. At the last hearing in Marin County Superior Court on November
28, 2012, Judge Roy Chernus told Bank of America what they must do to
take possession of the house, which is to file a claim to quiet title
and this claim must be filed in Marin County, not in San Francisco.
This is the very thing that Bank of America refuses to do.
As a result, because the San Francisco Superior Court judge withdrew
Counsel for the Goodall Estate, Sam Ware, from this case, Sloan and
the Goodall Heirs have approached dozens of other attorneys asking for
legal representation. While there may be a phone book full of lawyers,
none of the other attorneys will take this case for the obvious reason
that the same thing that happened to Sam Ware will happen to them too.
Nobody is willing to stick their head into the lion's mouth. Every
attorney is afraid of what Bank of America will do to them if they
take this case.
This means that the legitimate Goodall heirs cannot get proper legal
representation. Appellant Samuel H. Sloan is not a lawyer. He is also
not heir to the Goodall Estate. He took this case as a volunteer
administrator because Mike Goodall was a lifelong personal special
friend. They had been friends for fifty years since 1962 when they met
at a chess tournament at Hamilton Air Force Base. Sloan agreed to
become administrator of this estate at the request of the Goodall
Heirs because none of them had the willingness or the capability to
handle this complex case.
The motion filed by Sam Ware to withdraw as counsel gave only one
reason for wanting to withdraw, which was “Concerns (describe the
subject matter of the hearing) sanctions motion, cross motion”. (See
Record, Volume IV, page 1929). At the hearing on the motion, Sam Ware
said the same thing. Here is what he said:
7 Mr. Sloan and I just have a basic disagreement and have
8 had a disagreement as to this motion for sanctions.
9 I, quite frankly, I want to get out of it.
10 When I got the papers from Bank of America that
11 threatened sanctions, I thought, you know, I think it was
12 probably a good opportunity to avoid the sanctions issue,
13 and I recommended that we, Mr. Sloan, withdraw the
14 motion, and we had disagreement on that. And so not
15 wanting to abandon Mr. Sloan, we went forward on that.
16 But, you know, Mr. Sloan has kindly agreed that I can
17 talk about that and appreciate that.
18 But he was very insistent that this thing go
19 forward, this motion for reconsideration. But, you know,
20 I think that's defensible within the realm of reasonable
21 minds can differ as to the liability for that motion for
22 reconsideration, and I will file a further opposition
23 describing that. But the fact of the matter is that we
24 disagree, disagreed
(See Record, Volume V, page 1663)
The reason counsel for the estate gave for wanting to withdraw, which
was to get out from under the three motions for sanctions Bank of
America had filed against him, is not a legally recognized reason for
being allowed to withdraw. In addition, by doing so, counsel for the
Goodall Estate has not merely abandoned Mr. Sloan. He has abandoned
all of the Goodall heirs which include the two sisters and three
brothers of Rachel Goodall and their children and grandchildren, the
two brothers of Kenneth Goodall, the two additional heirs of Michael
Goodall and the putative child of Michael Goodall, for a total of 23
persons in all. All of these people will inherit nothing from the
Goodall Estate if this order is not reversed. Accordingly, Appellant
requests that this court reinstate Sam Ware as Counsel for the
Estate.
In addition, Appellant requests this court to take plenary
jurisdiction over this case. As will be shown, the San Francisco
Superior Court lacked Jurisdiction over this case because the matter
was already pending in Marin County Probate Court which had conducted
hearings in this matter. All of the Goodall Property and all assets
were in Marin County. The Goodalls all lived, died and are buried in
Marin County. Their wills are all lodged in the clerk's office in
Marin County Superior Court. In short, this case has nothing to do
with San Francisco. It was filed here because for reasons best known
to themselves Bank of America did not want to file this case in Marin
County Probate Court and so they filed it in San Francisco Superior
Court instead.
Secondly, Bank of America lacks standing to appear in this case. The
Goodall Trust provides in Section 6.5(b) thereof, “The Trust Shall
Terminate Upon Michael's Death”. Michael died on October 5, 2010,
which is nearly three years ago. Under no circumstances is Bank of
America the beneficiary of the estate. They have no claim at all. They
want to award the assets of the Goodall Estate to Guide Dogs for the
Blind. There is nothing in the trust documents that gives them the
right to do that. If Guide Dogs for the Blind wants to claim to be the
beneficiary of the estate, they should do that by filing their own
petition. While the Guide Dogs have appeared in this case, they have
never yet stated that they are entitled to inherit from the Goodall
Estate, much less have they set forth the basis for their claims, if
any. The petitions by Bank of America should be dismissed for lack of
standing.
The assets of the Goodall Estate consist of an estimated $2 million
dollars in cash and securities plus the Goodall Mansion at 461
Peachstone Terrace with an estimated value of $700,000. The cash
amount is estimated because Bank of America refuses to provide any
accounting of the funds, even though the trust documents clearly state
that the accounting must be made to the heirs of the estate. (See the
Record, Volume I, page 125) This includes all the Goodall Siblings.
Rachel Goodall had two sisters and three brothers. Kenneth Goodall had
two brothers. All of them are over 80. Most of them are still alive
and have children and grandchildren actively involved and interested
in this case. Bank of America has been completely stonewalling,
refusing to provide any information to any of them.
Why does Bank of America fight like a dog over such a relatively
small estate? The answer is perhaps that they have spent the money
already. Certified financial statements show that at the time of the
death of Col. Kenneth Goodall in 1994, the Goodalls had just slightly
less than one million dollars in cash and securities. The trust dated
September 12, 1990 did not put any of this money into the Trust. None
of it was with Bank of America either. It was after Rachel Goodall
died in June 1999 that Bank of America started contacting various
financial institutions especially USAA Investment Management in San
Antonio Texas demanding that these funds be transferred to Bank of
America. These claims by Bank of America for the funds were without
basis. Nevertheless, USAA Investment Management finally and with some
reluctance transferred the funds to Bank of America. Thus, Bank of
America essentially stole the money, because they had no right to it.
Having done that, Bank of America started charging monthly
administration fees. The person receiving these administration fees
was James R. Hastings who was attorney for Bank of America, the
Goodalls and the Goodall Trust all simultaneously in an obvious
conflict of interest. Then, when Mike Goodall sued Bank of America in
December 1999 for doing this, the attorneys for Bank of America
threatened him stating that if he kept fighting this case soon all the
money would be exhausted in court and administration fees and Mike
Goodall would be left with nothing.
Gary Rothstein, now Attorney for Bank of America, made the same
threat to Sam Sloan, Administrator of the Estate. Rothstein stated
that he charges $530 per hour in attorney's fees and if the
Administrator, Sam Sloan, does not stop fighting this case the money
will all soon be gone, as in Jarndyce v Jarndyce in Bleak House.
However, this threat was ineffective here because it is evident that
if the Goodall Estate does not win this case the money will all be
exhausted any way. Indeed, Gary Rothstein recently told one of the
Goodall heirs that the money is already completely spent and gone.
There is no money left.
However, if Bank of America loses this case they will have to pay all
this money back going back to the one million dollars they took from
USAA Investment Management in 1999, plus interest from that day to
this which will come to about two million. That is the reason Bank of
America is fighting their meritless case so hard. This also lines the
pockets of the attorneys representing Bank of America at their $530
hourly rate.
Appellant requests that this court reverse the decision of the court
below thereby reinstating Sam Ware as Counsel for the Estate and
furthermore that this court dismiss this case as brought by Bank of
America altogether for lack of standing and lack of jurisdiction and
venue. If Bank of America has any claims to make, they should be
directed to file those claims in Marin County Probate Court where the
Goodall Estate Probate Case has been pending since February 1, 2011,
long before Bank of America filed their petition in the instant case.
INTRODUCTION
This is an appeal from an order withdrawing the attorney for the
Administrator of the Estate of K. Michael Goodall from this case.
This order was entered after extensive litigation that started in
1999 as indicated by the case number PTR 99-273030. The case under
this number was originally filed by K. Michael Goodall represented by
attorney Robert J. Rothman contesting the claims by Bank of America to
be the Trustee of the Goodall Trust. The case never went to final
judgment or conclusion because Mike Goodall simply ran out of money to
pay Rothman's legal fees. Mike Goodall paid $7,000 to his attorney but
that was soon exhausted. Nevertheless, Robert J. Rothman is still
listed as counsel of record in this case to this day. Bank of America
has never served him with their pleadings, so he has not been drawn
back into this case.
Meanwhile, Bank of America had invaded the account the Goodalls
maintained with USAA Investment Management in San Antonio Texas which
had about a million dollars in the account in 1999. The Bank of
America somehow convinced USAA Investment Management to turn over the
million dollars to Bank of America in January 2000, even while this
case was pending. This constituted Grand Theft as Bank America had no
legal right nor claim to the money. However, possession being 9/10ths
of the Law, now Bank of America had the million dollars to pay its
attorneys and Mike Goodall the rightful person to control the account
had nothing and could no longer pay his lawyer, so the case became
dormant. However, no final judgment has ever been entered.
On October 5, 2010, Mike Goodall died in the Goodall Mansion located
at 461 Peachstone Terrace in San Rafael, California 94903. Samuel H.
Sloan was in Khanty-Mansiysk, Siberia, Russia on that day attending
the World Chess Olympiad. When he returned to San Rafael California in
January 2011, he found Mike Goodall's last will and testament in his
papers. He took that will down to Marin County Courthouse and filed it
on January 28, 2011. Sloan filed a petition in probate on February 1,
2011. This petition was granted and Sloan was appointed Administrator
of the Estate with Will Annexed on March 21, 2011. (See Record, Volume
I, page 293-294)
However, in the meantime, on or about February 28, 2011, Hamilton
Kipp, an Employee of Bank of America, broke into and burgled the
Goodall Mansion and removed the entire contents. The next day, March
1, 2011, when Sloan came home he found the entire mansion emptied of
its contents and the locks on the doors changed. He found that a small
back window had been left unlocked (apparently to allow the burglars
to regain access if they wanted to return) so he crawled in that
window and thereby regained possession of the house. He changed the
locks on the doors back again. (See Record, Volume I, page 288-290)
However, everything was missing including not only the furniture but
all the Goodall files, family records and legal documents. Sloan
called 911 to report the burglary. Sheriff's Deputy Anthony Savas
responded to the call. He said that he had seen a “Spanish Guy” with a
dumpster removing the contents of the house. However, he refused to
issue a police report for reasons unknown.
Sloan next went to the Marin County Sheriff's Department to complain.
He was interviewed by a sergeant in the Sheriff's Department who said
that if there was reason to believe that Bank of America was involved
they would not start a police case or issue a police report.
Sloan had no idea what had happened to the Goodall stuff. He called
Gary Rothstein, Counsel for Bank of America, but he refused to give
him any information. However, Sloan had an old girlfriend named Shanti
Onofre who lived in Alameda. She attended an estate auction near her
home in Alameda and by chance she noticed Mike Goodall's stuff being
prepared to be auctioned off. She recognized the stuff, as she had
been several times a guest in Mike Goodall's home in San Rafael.
In this way, appellant found out what had happened to the Goodall
stuff. He confronted Gary Rothstein of Bank of America but Bank of
America refused to return the Goodall stuff, even though some of the
stuff was clearly the property of Mike Goodall personally or the
property of the other residents in the Goodall House, Frank Thornally
and Roy Hoppe.
With Bank of America stonewalling and refusing to return the stuff,
Sloan filed an 850 motion to recover estate property in Marin County
Probate Court. Bank of America in a telephone conference call hearing
objected to the motion but the Probate Commissioner set it down for a
hearing anyway. Finally, on June 10, 2011 on the eve of the hearing on
the 850 Motion, Michaan's Auction House, that had been holding the
Goodall stuff in Alameda, substantially returned it to the Goodall
Mansion.
Now, having lost twice in Marin County Probate Court although they
had never filed a notice of appearance there, Bank of America did not
do the proper thing, which was file their claims in the Marin County
Probate Court (although it will be seen that they really do not have a
legally cognizable claim of any kind). Instead, on April 21, 2011 Bank
of America filed in San Francisco Superior Court a pleading entitled
“Petition for an Order Confirming Real Property as an Asset of the
Trust”.
It was apparent that this petition went much further than the stated
title. It gave as the caption of the case, “In the Matter of the Trust
for Michael created under the Goodall Trust dated September 12, 1990”.
(See Record, Volume I, page 186)
However, that was not the caption of the case filed under that
number. The real title of the case was “In Re The Goodall Trust”. (See
Record, Volume I, page 9). In addition, the trust is not a “Trust for
Michael”. The actual trust dated September 12, 1990 makes Michael
Goodall the successor trustee of the Goodall Trust and not Bank of
America. The actual Trust dated September 12, 1990 is the Record: (See
Volume I, pages 105-130 and Volume IV, pages 1160-1185).
This trust makes Mike Goodall the Trustee, not Bank of America. Bank
of America is nowhere mentioned in this document. Section 7.2 Page 119
makes Kenneth Michael Goodall the Successor Trustee and states on page
119 and 1175:
“Kenneth Michael Goodall shall become the trustee. If Kenneth Michael
Goodall is not qualified for appointment as trustee, or if he later
dies, resigns or is removed pursuant judicial procedure or for any
reason fails or ceases to act as trustee SECURITY PACIFIC BANK shall
serve as the corporate sole trustee.”
This particular point was raised at a hearing before Judge Roy
Chernus in Marin County Superior Court on November 28, 2012. The
following colloquy took place:
24 MR. SLOAN: Your Honor, this motion -- thank
25 you for your tentative ruling, which I hope you accept.
1 This motion is certainly not amenable for summary
2 judgment at all. Every single issue of fact is in
3 dispute.
4 For one thing, the number one fact is the Bank
5 of America, the trustee of the Goodall Trust, in the 1990
6 trust document -- and I've included the full trust
7 document in my motion papers -- does not name the Bank of
8 America successor trustee; it names Security Pacific Bank
9 as the successor trustee.
10 Secondly, he doesn't mention that there was
11 also a second amendment to the Goodall Trust dated
12 January of 1990 -- of 1999, making Michael Goodall the
13 successor trustee succeeding his father. So when his
14 mother died, there were two trustees: Michael Goodall
15 and his mother. They were the trustees of the Goodall
16 Trust. And when Rachel Goodall died, then Michael
17 Goodall, by right, became the sole trustee of the Goodall
18 Trust. And because Bank of America insisted they were
19 the trustee, he filed a case against them on December
20 21st -- 27th, 1999, against the Bank of America. And
21 that case was still going in litigation for 10 years,
22 until he died on October 5th, 2010. So all these issues
23 that he's saying are undisputed issues are disputed
24 issues. They have been disputed the whole time.
25 And, secondly, as far as his statement about
1 the documents, he has not yet -- we want discovery. They
2 have not produced a single document since this case
3 began. We have not seen that trust that he just said
4 gives Bank of America -- makes them the trustee. They
5 haven't produced that document. We want that document.
6 We've made motions for that document, and we've served
7 subpoenas for that document. We want depositions,
8 especially of Hamilton Kipp and James Hastings. They
9 won't agree to any discovery. The motion that they made
10 was granted on a reply affidavit which they produced a
11 document saying that Michael Goodall received something
12 in the mail, but we didn't have even discovery to find
13 out if he'd even answered it or if he really received it.
14 So every single thing that he's talking about, these are
15 things that are open to discovery and to issues of fact.
16 I hope that you adopt the tentative ruling.
17 And by the way, I want to explain to
18 Mr. Thornally and Mr. Hoppe, I'm the administrator of the
19 estate. I was appointed by the probate judge here in
20 Marin County. I don't know why they filed the case on
21 the Goodall Trust in San Francisco when the proper venue
22 and jurisdiction of this case was the same court, the
23 same probate case that appointed me. They should not
24 have been allowed to sue me in a different court than I
25 was appointed from. I was appointed by the Marin County
1 Probate Court, and they should have brought this case in
2 Marin County. Why they should -- they should never have
3 been allowed to bring the case over in San Francisco when
4 all the people died here, they are buried here, their
5 wills are lodged here in the clerk's office in Room 113.
6 You can look up the wills of the Goodall parents and
7 their son. They never had anything to do with San
8 Francisco. They never went there. They didn't even like
9 to cross the Golden Gate Bridge. And because he feels
10 that they couldn't -- we had three hearings in Probate
11 Court. I would have prevailed in all three hearings.
12 And that's why they went over to San Francisco three
13 months later and got a case over there, because they
14 realized that they couldn't win here.
15 So I'm hoping that you will adhere to the
16 tentative ruling. I'm also hoping that you will order
17 discovery that they have to produce the documents which
18 they claim to be relying on.
19 THE COURT: I don't issue -- there's not a
20 motion for -- to compel discovery, as I'm hearing. I'm
21 just hearing the summary judgment motions.
22 Anything else, sir?
9 MR. HOPPE: Okay. I was the -- Mike's
10 roommate for 13 years at that place. I was also his
11 caretaker the last couple of years. I don't know if
12 that's relevant to this case or not. I also know what
13 Mike wanted.
14 THE COURT: Okay. That's not what I'm doing
15 right now.
16 MR. HOPPE: Okay.
24 THE COURT: Okay. Thank you.
25 MR. HAHM: I'll make a couple of brief points,
1 your Honor. And then I didn't address the motion with
2 respect to Mr. Hoppe and Mr. Thornally, and I'd like to
3 address that very, very briefly.
4 First, Security Specific Bank became Bank of
5 America back in 1991. We were the successor. You'll
6 probably take judicial notice of it, but that was a very
7 big transaction.
8 Number two, there was no form shopping when we
9 initiated recently the Petition for Instructions in San
10 Francisco Superior Court. We chose that venue because
11 after Rachel Goodall died in 1999, Michael Goodall
12 initiated a proceeding about the Goodall Trust in San
13 Francisco. There was already a case opened there and,
14 therefore, we filed our petition there.
15 In addition, ever since Rachel Goodall had
16 passed away in 1999, Bank of America was the trustee of
17 the Goodall Trust and had been operating under the
18 assumption and belief that the house was an asset of that
19 trust. So, again, if something had happened there,
20 someone had been hurt, it wouldn't have been Michael
21 Goodall who was responsible; it would have been the
22 Goodall Trust. And as the trustee, Bank of America would
23 be responsible for overseeing that. Bank of America, for
24 example, would be the party that would initiate a quiet
25 title action. If there was some sort of cloud on title
1 -- if there was a neighbor, for example, who alleged he
2 had an easement over the backyard, well, it would be Bank
3 of America, as the trustee of the Goodall Trust which has
4 the title to the property, that would initiate that UD
5 action. What happened in San Francisco in the probate
6 proceedings wouldn't change what the title is; it just
7 allowed us to proceed as if it were an asset of the
8 Goodall Trust.
9 And everything Mr. Sloan has said about
10 disputes concerning documents, discovery, amendments to
11 the Trust, this has all been presented to San Francisco
12 Superior Court twice -- multiple times, I should say, in
13 the probate proceedings. There has been adjudications
14 against him. They should be final, number one, because
15 the time to appeal them has elapsed. And I'm happy to
16 brief that. I can demonstrate to your Honor very clearly
(See Record, Volume V, Pages 1704-1709)
As you can see from the above colloquy, Bank of America claims the
right to be the trustee because they bought out Security Pacific Bank.
However, Robert J. Rothman, as attorney for Mike Goodall, brought this
point up too, saying that Bank of America was then purchased by a bank
in North Carolina who then changed its name to Bank of America, so
therefore the Bank of America today is not at all the same bank as the
bank that existed by that name in 1990. (See Record, Volume I, page
180) Thus this issue was raised at an early stage and Bank of America
still has not responded. They have not explained how the purchase of
the assets of Security Pacific Bank by Bank of America followed by the
purchase of the assets of Bank of America by Nations Bank that then
changed its name to Bank of America gave the current Bank of America
the “right” to be the Trustee of the Goodall Trust.
More importantly, according to the Trust dated September 12, 1990,
the bank only becomes involved “If Kenneth Michael Goodall is not
qualified for appointment as trustee, or if he later dies, resigns or
is removed pursuant judicial procedure or for any reason fails or
ceases to act as trustee”. (See Record, Volume I, page 119). None of
these things happened so Michael Goodall and not Bank of America was
the rightful trustee.
Regarding the proceedings in Superior Court, there was no fact
hearing in the superior court and no findings of fact. It is not true
that these issues were heard and decided by the San Francisco Court.
There was no sworn testimony, no declarations, no verifications, no
evidence presented (because counsel for Bank of America said that the
evidence had been lost). (See Record, Volume II, page 587-590) Thus,
there was none of the things that normally accompany a judicial
determination of facts.
This case is running in parallel in two different courts and these
two courts have reached the opposite decisions. They know about each
other and refuse to change their rulings so review by an appellate
court is necessary. This case is running in parallel between two
different courts in Marin and San Francisco, with opposite results. In
the San Francisco case, the case is Case No. PTR 99-273030. In Marin
County, the Case number is PRO1100596.
There has never been any discovery in this case except for a
deposition of James R. Hastings in which he refused to produce any
documents and he testified that he could not remember anything about
this case and had lost or misplaced all his files of this case and so
he had nothing to produce. (See Record, Volume II, pages 701-717)
In almost every instance, the issues in the San Francisco Case are
exactly the same as the issues in the Marin Probate Case, yet the
results have been the opposite. For example, the Bank of America filed
a Statute of Limitations Claim in the Marin case. Judge Verna Adams
dismissed that claim in a reasoned and lengthy opinion on April 16,
2012. Undaunted, Bank of America filed exactly the same claim in San
Francisco, which resulted in an order from which an appeal was taken
here.
Similarly, The Bank of America took the ruling by the San Francisco
Court here and tried to enforce it over in Marin in a motion for
summary judgment. However, the Marin County Superior Court Judge
denied the claim by Bank of America, saying that the San Francisco
order was interlocutory and non-final and thus non-enforcable in
Marin. The Marin County judge ruled that Bank of America must file a
claim to quiet title in Marin since the property is in Marin. However,
throughout the two years that this litigation has been going on, Bank
of America has been unwilling to submit its claims to the jurisdiction
of the Marin courts, for reasons best known to Bank of America. This
has resulted in this stalemate which will take action by the appellate
courts to resolve.
Because of these conflicting decisions by different judges in
different courts, the situation is in stalemate. The Goodall Estate
consists of an estimated two million dollars in cash and securities
plus a house known as “The Goodall Mansion” located at 461 Peachstone
Terrace, San Rafael California 94903. Bank of America has all the
money, having stolen it back in 1999 which resulted in this case, PTR
99-273030, whereas the Estate of Goodall has possession and control of
the house. Bank of America has been unsuccessful in its efforts to
oust the Goodall Estate from the house. Thus, it appears the parties
will be locked in stalemate for an extended period of time, possibly
even for years or forever.
The prior order dated May 16, 2012 was NOT a judgment. It did not use
the word “judgment”. It did not finally decide the action. It left
unopened and undecided almost every question about this case. Indeed,
the Bank of America moved to enforce this order over in Marin County
Superior Court and Judge Roy Chernus there said that the May 16 order
was NOT a final judgment and was interlocutory.
As Judge Roy Chernus of Marin County Superior Court stated in a one
of the related cases in Marin County, “this is not your usual garden
variety type of action” because while this case has been pending in
the San Francisco Probate Court the same case has been pending over in
the Marin County Probate Court. Two courts have been handling the same
case.
Plaintiff here, Bank of America, lost their initial motions over in
Marin County and then opted for the greener pastures in San Francisco
Probate Court. As this case has progressed, every time Bank of America
lost a motion over in Marin County they filed the same motion in San
Francisco where they won.
Regarding the statute of limitations claim that Bank of America made
in an “Additional Reply” in which the Administrator of the Goodall
Estate did not have a chance to respond, Bank of America had made
exactly the same Statute of Limitations claim in Marin County and
Judge Verna Adams had dismissed that claim in a reasoned and lengthy
opinion on April 16, 2012. Undaunted, Bank of America made that
identical claim on San Francisco Probate Court.
Appellant was prevented by the actions of opposing counsel and
actions of the judge which made it impossible for him to file an
appeal any sooner than he did. Indeed, Appellant waited in the court
room for the San Francisco Judge to sign his final order in this case
so he could go down to the filing room to file his notice of appeal
the same day.
In view of the actions of the San Francisco Probate Judge in making
this case “Appeal Proof” by among other things waiting a full two
months before signing the order denying the petition for rehearing,
the judge prevented an earlier appeal. The order was submitted to the
judge for signing on July 27, 2012. The judge did not sign it until
September 26, 2012.
More than that, actions by Bank of America and Guide Dogs for the
Blind unethically to chase Petitioner's Counsel off the case have made
it impossible for Petitioner to retain new counsel. They did this by
repeatedly filing motions for sanctions against existing counsel.
Their first motion for sanctions which demanded attorneys fees between
$13,000 and $16,000 against both the Administrator of the Goodall
Estate and his counsel was filed on June 29, 2012. That motion was
denied by Judge Busch on June 19, 2012.
However, on the very next day, July 20, 2012, Bank of America filed a
second motion for sanctions even though nothing had changed overnight
since the first denial.
A Third Motion for Sanctions was filed by Bank of America on August
14, 2012.
All these motions for sanctions filed by a big and powerful Bank of
America and their counsel one of the largest law firms in California
had the effect of understandably frightening the counsel for the
Goodall estate. As no man can serve two masters, Counsel for the
Goodall estate felt that he had to withdraw as counsel for the estate
in order to defend himself against these successive motion for
sanctions which threatened his professional career.
Meanwhile, Sam Sloan, the Administrator of the Goodall Estate, the
Petitioner here, found it impossible to retain another counsel because
every other attorney is afraid of Bank of America and their attorneys
too. Nobody wants to stick their head in the lion's mouth.
As a result, Petitioner had no choice but to wait until these motions
for sanctions and motion to withdraw were decided before he could file
a notice of appeal. Petitioner was literally waiting in the courtroom
for the judge to sign these orders so he could run down to the clerk's
office and file this notice of appeal the same day.
After considering this matter, this court should dismiss this case
entirely. The proper Probate Proceeding involving the Goodall Estate
is now pending over in Marin County Probate Court. Case No. PR
1100596. The Goodall wills are admitted into probate in Marin.
Everything about this case happened over in Marin. The only reason
Bank of America filed in San Francisco is they do not like the judge
over in Marin.
In addition, Bank of America should not have been allowed to use the
case number of this inactive case to file a new claim for a different
cause of action. There was no activity in this case for 11 years from
March 2000 until April 2011. (See Record, Volume I, pages 185-186)
This case should have been dismissed for inactivity under California
Code of Civil Procedure Section 583.410. Thus this case should be
dismissed with all orders vacated and Bank of America should be
directed to file their claims in the right court, which is Marin
County Probate Court.
We believe that the May 16, 2012 order is not a final judgment. It
does not contain the word “Judgment”. It does not include findings of
fact and conclusions of law. It does not award money or property to
anybody. It does not finally decide the action. However, the orders of
the San Francisco Court cannot be ignored because Bank of America
claims that it is a judgment and they have moved to enforce it as a
judgment.
In August and October, 2012 Bank of America filed two unlawful
detainer actions in Marin County seeking to evict the Goodall heirs
and Goodall Estate from the Goodall Mansion at 461 Peachstone Terrace,
San Rafael, California. These actions were unsuccessful, for the same
reason Appellant has stated from the beginning. Judge Roy Chernus
wrote in his ruling of November 28, 2012:
“As against Sam Sloan and Kayo Kimura plaintiff seeks judgment for
possession based on orders of the San Francisco Superior Court and the
July 27, 2012, Sixty-day notice. Plaintiff has put its title to the
property "at issue" in this unlawful detainer proceeding. The bulk of
the allegations in the Complaint and the "Undisputed Facts" in support
of the subject motion for summary judgment are addressed to plaintiffs
extensive efforts by way of collateral proceedings in San Francisco
Superior Court to confirm that the premises is an asset of the Trust
for Michael created under the Goodall Trust dated September 12,l990,
that title to the premises is in Bank America as trustee, and that
plaintiff may administer the premises pursuant to the terms of Trust.
Yet despite plaintiffs extensive allegations detailing the San
Francisco proceedings, plaintiff does not actually allege or
demonstrate via undisputed facts that the orders of the SF Sup. Court
are final or that the issue of its title to the subject property has
been fully and finally determined.
Plaintiff appears to base its right to commence this unlawful detainer
proceeding upon the Minute Order of the SF Superior Court dated July
19, 2012, denying defendant's petition for reconsideration as
plaintiff served the subject 60-Day Notice eight days later on July
27,2012, even though the court's order was not formally entered until
September 27, 2012. (See Complaint, par. 19, and Exh. E) Even assuming
the order denying defendant's petition for reconsideration constitutes
a final and binding determination of plaintiffs title (though not
specifically alleged) plaintiff served the 60-day notice before that
order was formally entered on September 27, 2012. This unlawful
detainer action was filed a mere 12-days later on October 9, 2012. As
stated by the Court in Greenhut v. Wooden {1982} 129 Cal.App.3d 64,68,
this is not your usual garden variety type of unlawful detainer action
where the issue of title is strictly limited. Having put its own title
in issue and by relying on the San Francisco Trust proceeding as the
source of its authority to commence this proceeding plaintiff should
demonstrate that title to the property has, in fact, been finally
adjudicated in its favor. Plaintiff's pleading and evidence falls
short of demonstrating a final adjudication of title in its favor and
raises a question of fact whether the alleged 60-day notice was served
prematurely.
As to defendants Hoppe and Thornally, a complaint for unlawful
detainer must allege that the tenant continues in possession of the
premises. (CCP $1161.) No cause of action for unlawful detainer exists
if the tenant has quit before the action is filed. Defendants Hoppe
and Thornally have filed answers admitting they have relinquished
possession of the premises. In its motion, plaintiff claims that while
Hoppe and Thornally have relinquished physical possession of the
premises, “plaintiff is informed that Hoppe and Thornally have not
relinquished their alleged right to possession of the premises." If a
landlord wishes to determine rights to possession but not physical
possession, it cannot do so by way of summary unlawful detainer; a
quiet title action would be the proper remedy.”
Thusly, Judge Chernus stated in essence the same thing petitioner
Sloan has been saying from the first pleading which is that the only
way for Bank of America to get what it wants is to file a petition in
Marin County. Bank of America can never succeed in obtaining access to
real property in Marin by bringing cases in San Francisco.
This action by Bank of America should be dismissed and thrown out of
court for a deeper reason, which is that Bank of America has never had
standing in this case. Bank of America was never the legal trustee of
the Goodall Trust. Kenneth and Rachel Goodall were the trustees. Upon
the death of Kenneth, the Trust documents show that Michael became the
co-trustee with his mother and upon her death Michael became the sole
trustee. The documents showing this are annexed as exhibits here. At
no time did Bank of America have any rights in this case. They simply
usurped and stole this case because of the millions of dollars
involved. What happened is Bank of America stole the money, pure and
simple. They have no right and no claim to the Goodall assets.
In addition, Guide Dogs for the Blind has no standing and no claim.
The trust document upon which Bank of America and Guide Dogs for the
Blind relies (although they have failed and refused to produce it and
claimed to have lost it) does not establish their right.
Paragraph 6 of the petition filed by Bank of America contains the
following noteworthy statement.
No title documents have been found placing title in the residence in
the name of petitioner [Bank of America] as Trustee of the Trust for
Michael.” (See Record, Volume I, page 189)
What Bank of America was asking here was that the title to the
Goodall Mansion be changed by order of the San Francisco Superior
Court. However, as Appellant Sloan pointed out in his pro se answer to
this petition, “It is HORNBOOK Law that any proceeding involving real
property must be filed in the jurisdiction where the property is
located.” (See Record, Volume I, page 287)
Paragraph 6, note 1 of the petition filed by Bank of America contains
another noteworthy statement.
“The Provisions of the Bypass Trust are somewhat unclear with
respect to the proper beneficiaries of the Trust for Michael in the
wake of Mike Goodall's Death.” (See Record, Volume I, footnote at the
bottom of page 189)
“Somewhat unclear” is a massive understatement or misstatement. The
trust documents have been shown to several attorneys specializing in
such matters. All them say that the trust documents are nonsense.
“Absurd”, “ridiculous” and several other adjectives are used to
describe these trust documents. A well known San Francisco attorney
said that the attorney who drew up this trust should be disbarred for
incompetence.
Michael Goodall died on October 5, 2010 in his home known as “The
Goodall Mansion” at 461 Peachstone Terrace in San Rafael, Marin
County, California. Petitioner found the Goodall Will among his papers
and filed it in Marin County Probate Court on January 28, 2011. On
February 1, 2011, Petitioner filed a petition in probate. After
consents were obtained from all of the heirs of the Goodall Estate,
petitioner petitioned and after two hearings was appointed
administrator of the estate.
Petitioner had the key to the house, as he has been a resident of the
house. However, on February 28, 2011, while petitioner was away for a
few days, there was a break-in and burglary in the house. The entire
contents of the house was removed including all legal papers and
documents of the Goodalls. When the burglary was discovered, 911 was
called and this was reported as a burglary. Deputy Anthony Savas of
the Marin County Sheriff's Department responded to the call. Deputy
Savas said that he had been patrolling the area during the previous
days and had observed a large trash dumpster in front of the house
with a Spanish guy bringing stuff out of the house and putting it in
the dumpster. However, Deputy Savas had not stopped to inquire, as
this had seemed to be a routine case of somebody moving out.
On April 21, 2011, Bank of America by way of collateral attack had
filed a petition in San Francisco Superior Court seeking essentially
to overturn the Marin County Probate Order which had listed among
other things the Goodall Mansion as an asset of the Goodall Estate. In
filing this new petition, Bank of America had used an old case number,
PTR 99-273030. That was the number of a case Michael Goodall had filed
in December 21, 1999 shortly after his mother had died in which he
sought the removal of Bank of America as Trustee on many grounds
including the grounds that Bank of America was not the bank named in
the Trust documents and that the proper trustee was Michael Goodall
himself and if not himself then at least some bank not openly hostile
to him as Bank of America was.
Page 18 of a trust document, which Bank of America claims has been
lost but they claim is controlling, but which we are prepared to prove
was never signed by any of the Goodalls, especially since Col. Goodall
was hospitalized and on his death bed with Esophageal cancer, had a
feeding tube inserted in his abdomen and was unable to speak, contains
the following provision:
“(d) If MICHAEL does not survive the surviving settler
and leaves no issue who survive the surviving settler, the trustee
shall distribute the trust property twenty thousand dollars ($20,000)
to each of the then living brothers and sisters of the trustor RACHEL
A. Goodall and the remainder to GUIDE DOGS FOR THE BLIND OF MARIN,
INC., of San Rafael California.”
The problem is that this provision only applies if Michael dies
BEFORE his parents do. However, Mike survived his parents by 11 years.
Kenneth F. Goodall was born 01 Mar 1916 and died 10 Sep 1994 at age
78. His Social Security Number was 444-40-8884. Rachel A. Goodall was
born 23 May 1916 and died 07 Jun 1999. Her Social Security Number was
359-07-1738. Kenneth Michael Goodall was born 13 Jan 1946 and died 05
Oct 2010. His Social Security Number was 559-70-3352.
Since Mike Goodall died 11 years after his parents did, that
paragraph does not apply. More than that, nowhere in the entire
document, 40 pages long, is there any mention of what happens if Mike
dies after his parents do, except that the trust documents state that
the trust terminates upon the death of Mike Goodall.
This provision and the entire document makes it completely 100% clear
that the Goodall Estate belongs entirely to Mike Goodall and his
heirs, unless Mike Goodall dies before his parents do. There is no
possible way that Guide Dogs for the Blind gets anything out of the
Goodall Estate. Under no interpretation of the Goodall Trust does
Guide Dogs for the Blind get anything.
Yet, Bank of America, in its initial petition filed in San Francisco
Superior Court, said that it was due to drafting errors that the trust
documents mistakenly do not give any money to Guide Dogs for the
Blind. Bank of America asked the Superior Court to in effect rewrite
the trust documents so as to have the Goodall Estate go to the Dogs.
At the first hearing in San Francisco Superior Court on May 25, 2011,
Petitioner appeared in pro per because he felt it absurd and
ridiculous that Bank of America would file their petition, because the
trust documents clearly DO NOT give any part of the Goodall Estate to
the Dogs and secondly because this case was already pending as a
probate case in Marin County that clearly had jurisdiction. The
Goodalls all lived and died in Marin County, all of their property
including their house was in Marin County, all their documents were
executed in Marin County and there was nothing about this case that
had anything to do with San Francisco County. Thus, San Francisco
County obviously does not have jurisdiction. Petitioner expected that
the San Francisco Court would throw the case out immediately.
In addition, Guide Dogs for the Blind is behind all of the other
heirs. The trust provides that each of the Goodall siblings gets
$20,000. Rachel Goodall had five siblings, three brothers and two
sisters, and Kenneth Goodall had two brothers. Many of them are dead
but they all married and had children, some of whom were adopted.
There are twenty-three Goodall heirs listed on the service list and
they all have the right to contest this case. Clearly, only the Marin
County Probate Court has the jurisdiction, venue and competence to
decide these claims.
In addition, the direct heirs of Michael Goodall have a claim. The
trust provides that his wife and/or children inherit from the trust.
Guide Dogs for the Blind are at the bottom of the totem pole. This
case goes to the Dogs and they get money only after all of these other
people and even then the Dogs do not get anything unless Michael dies
before either of his parents do, which did not happen.
Because of all these factors, Appellant assumed that the San
Francisco case would either be dismissed or else transferred to the
right court, which was Marin County Probate Court. Petitioner was thus
shocked when the San Francisco judge with a wave of the hand and
without giving any reason for the decision or indeed without saying
anything at all ruled in favor of Bank of America and signed an order
that had been handed up without even allowing the Petitioner to see
and comment on the order that was being signed.
Appellant then realized that he had better retain counsel. After a
long search, Appellant found a qualified attorney, Sam Ware, willing
to represent the Goodall Estate on a Contingency Fee basis. This was
necessary because Bank of America had already taken all the money.
Col. Kenneth and Rachel Goodall had never had an account with Bank of
America, not even a simple checking account. Col. Goodall was retired
military officer, so most of the Goodall money was with USAA
Investment Management in San Antonio, Texas. They also had smaller
amounts with mutual funds and stock trading accounts. None of this was
with Bank of America or anywhere in the state of California.
Right after Rachel Goodall had died in June 1999, Bank of America
through its attorney James R. Hastings had contacted USAA Investment
Management and directed that all Goodall funds be transferred to Bank
of America. Mike Goodall had not been told about this and had no idea
that this had happened. In short order, all of the bank accounts that
Mike Goodall had been operating under power of attorney were stripped
of their assets. Mike Goodall was left destitute and without funds.
That is the reason why he filed this case on December 21, 1999.
Bank of America completely stonewalled, as they continue to do this
day. They refused and still continue to refuse to give Mike Goodall or
indeed any of the Goodalls any accounting or any information about
what happened to the Goodall Millions. It was as if the funds had
disappeared into a Black Hole.
Just before Col. Kenneth Goodall died in 1994, he had an accounting
done of the funds. The accounting shows that the Goodalls had slightly
less than one million dollars in cash and securities plus the fully
paid for house. Rachel Goodall was an excessively frugal person. She
basically never spent money on anything, so the money should at least
have doubled since 1994.
After the adverse ruling on May 25, 2011, Petitioner was able to
retain counsel in time for the next hearing in San Francisco Probate
Court. Meanwhile, several hearings on the same subject matter had been
held in Marin County Probate Court.
It is important at all times to remember that this case is running in
parallel in two different courts: San Francisco Superior Court and
Marin County Probate Court. Obviously, the Marin County Court is the
right court and at each hearing in San Francisco Petitioner has
demanded transfer of this case to Marin.
At the next hearing in San Francisco, Bank of America brought
attorney James R. Hastings to court prepared to have him testify as a
witness, as he had been attorney for both the Goodalls, the Goodall
Trust and the Bank of America. Hastings was going to testify that the
money should go to the Dogs. This was one of just many obvious
conflicts on interest by James R. Hastings. However, Petitioner's new
counsel Sam Ware asked for the opportunity of discovery. Bank of
America protested vehemently and said that there should be no
discovery at all. They especially objected to any discovery of the
money. They refused to reveal anything about the Goodall millions, how
much it was, were they had gotten it from and what they had done with
it.
Finally, Judge Mary Wiss agreed that there should be some discovery.
Whereas Bank of America wanted to hold a hearing and finish the case
that day, the superior court judge said that there should be
discovery.
However, as will be seen, there has never been any discovery on this
case, because Bank of America has been completely stonewalling. Not
one document has been produced either by Bank of America or by
attorney James R. Hastings. Bank of America has absolutely refused to
produce anything. James R. Hastings has testified that he has lost the
files and thus does not have anything. In addition, he has stated that
to provide any discovery would violate the attorney Client Privilege
of Bank of America because he was counsel for Bank of America at the
same time that he was counsel for the Goodalls. (See Record, Volume
II, page 570)
Sam Ware then subpoenaed James R. Hastings for a deposition and
required him to bring all documents and files pertaining to this case.
Hastings appeared for the deposition on November 14, 2011 but did not
bring any documents at all. His attorney Don Lesser said that the
subpoena was overbroad and as Hastings had been attorney for Bank of
America too it would violate the attorney client privilege of Bank of
America and that the files and notes pertaining to this case had all
been lost. At the oral deposition, Hastings testified that basically
he could not remember anything about the case. (See Record, Volume II,
page 542-558)
On December 14, 2011, Sam Ware filed a motion for discovery and
production of documents pertaining to this case. On December 29, 2011,
Don A. Lesser, Counsel for James Hastings, filed opposition to the
motions for discovery, saying that it would be “oppressive and
burdensome” upon James R. Hastings and also violate the attorney
client privilege of Bank of America because James R. Hastings had been
attorney for Bank of America at the same time that he was attorney for
the Goodall and the Goodall Trust. (See Record, Volume II, page 570)
Not long thereafter Don Lesser withdrew as counsel for James R.
Hastings, but without filing a notice of withdrawal with the Superior
Court, even though he had appeared in the case.
On January 20, 2012, Judge Busch denied the motion for production of
documents, especially the trust Document, but said that James R.
Hastings was required to search his files to look for the trust and if
he could find it he was required to produce it and otherwise he must
file a declaration stating what efforts he had made to find the trust.
On February 2, 2012, James R. Hastings filed a declaration stating
that he had searched all his files and was unable to find the trust.
(See Record, Volume II, page 612-613)
On February 6, 2012, Nancy Rodgers, a friend and neighbor of the
Goodalls, filed a declaration stating that her purported witness
signatures on the Goodall Wills, which were pour over wills pouring
money into the trust, were not her signatures and she had never signed
any such documents. As there had never been any money in the trust,
these pour over wills were essential to the claims by Bank of America
and Guide Dogs for the Blind to be entitled to any of the Goodall
millions. (See Record, Volume II, page 652-653)
After several more pleadings were filed on all sides, on April 24,
2012, Bank of America filed an additional reply asserting for the
first time in this case that objections to the 1994 Trust were time-
barred by a Statute of Limitations. (See Record, Volume III, page 925)
Although this was the first time Bank of America had made this claim
in this case, they had made exactly the same claim in the parallel
proceeding going on in Marin County Probate Court. That claim had been
dismissed by Marin County Probate Judge Verna Adams in a lengthy and
reasoned decision on April 16, 2012. The statute of limitations claim
was also entirely bogus and ridiculous for several reasons the most
obvious being that Michael Goodall had indeed contested the right of
Bank of America to be the trustee by filing this very case on December
21, 1999. Also, the statute of limitations claim was not accompanied
by any evidence or a declaration in support. In addition, the words
“as amended” had been omitted or when it was included, obviously it
logically referred to the 1999 Amendment to the Trust which had made
Mike Goodall the Trustee. The 1990 Trust had made Michael Goodall the
beneficiary of the trust and the 1999 Amendment had made Michael the
co-trustee of the trust, so there was no reason for Michael to object
to either of them. (See Second Amendment to the Goodall Trust in the
Record, Volume II, pages 55-57)
Because of the shortness of time before the previously scheduled
hearing, Samuel Sloan and his counsel did not have time to respond to
this “additional reply” and so asked for additional time which was
denied from the bench. And so, Judge Busch signed the order dated May
16, 2012 from which the first appeal is taken, without a fact hearing
of any kind and without any findings of fact or conclusions of law.
(See Record, Volume III, page 937)
On May 25, 2012, seven days after the entry of the order of May 16,
2012, Samuel Sloan filed through counsel a motion for discovery to
compel the production of documents including the documents forming the
basis of the newly made statute of limitations claim. This was not
filed as a motion for reconsideration, because Sloan through counsel
deemed the May 16, 2012 order to be an interlocutory order, not a
final judgment, because, among many other things it does not use the
word “judgment”, and does not dispose of all of the issues involved in
this case. However, this motion was filed within the time limit for
motions for reconsideration to be on the safe side in case the courts
were later to decide that it was a judgment. (See Record Volume III
page 970)
Sam Sloan, Administrator of the Goodall Estate, had been caught off
guard by the May 16, 2012 decision because he had naturally assumed
that there would be some sort of trial or fact hearing and Bank of
America would be required to present their evidence if any before the
court would rule. It was not to be expected that the judge would
decide this complicated case abruptly from the bench without any
hearing. Because of this surprise ruling, the administrator started
searching through the 40 or 50 storage boxes of material Bank of
America had stolen when they broke into the Goodall Mansion on
February 28, 2011 but then were forced to return on June 10, 2011 by
proceedings in the Marin County Probate Court.
During these searches, the administrator found a treasure trove of
documents. All or almost all of these documents had been prepared by
James R. Hastings, Attorney for Bank of America, so Bank of America
had these documents all along but had failed to produce them. Of great
importance was a Power of Attorney the Goodall Parents, Kenneth and
Rachel Goodall, had given their son Michael on August 24, 1994 on the
Death Bed of Kenneth, placing Michael with power of attorney over the
Goodall Trust. (See Record, Volume III, pages 977-993) This proved
that the claim by the Attorney of Bank of America that the Goodall
parents did not trust Michael with their money was false. Also
included in the same treasure trove of documents was a signed health
care directive by Kenneth Goodall that he be allowed to die of the
Esophageal cancer of which he was suffering at the time (See Record,
Volume III, pages 955-966) and an unsigned 1994 Goodall Trust showing
that Kenneth had never signed the 1994 amendment to the trust. Kenneth
Goodall was in the final stages of cancer and a feeding tube had been
inserted in his abdomen on July 17, 1994. He died on September 10,
1994. These documents were included in the exhibits Sloan filed in his
May 25, 2012 motion.
On the same date, Sloan filed a declaration of David S. Moore, a
highly regarded forensic document examiner, who stated that upon
comparing the known and authentic signatures of Kenneth Goodall found
on other documents, on checks, on his personal notebook and the like
and comparing them with the signature on the purported 1994 amendment
to the trust, they were not consistent but he could not made a final
determination as to whether the signature was authentic or not without
being allowed to examine the actual trust document, but such an
examination had been denied. (See Record, Volume III, pages 955-966)
Included among the documents given to David S. Moore for examination
is an extensive handwritten notebook maintained by Col. Kenneth F.
Goodall showing his plans and intentions regarding his death and the
Goodall Trust. This notebook shows that it was his intention that only
the house would be in the trust, not the money. It was also his
intention that if Michael Goodall married or had children, they would
inherit from the trust. The Goodall parents were actively encouraging
their son to get married and start raising a family. They were
certainly not going to create a trust that would disinherit their son
and his future wife and children. Administrator Sam Sloan brought this
notebook with him to court every time this case was set for a hearing.
However, Judge Busch by denying any hearing on this matter prevented
the Goodall Estate from offering this notebook and the conclusive
proof that it contains into evidence. The notebook is still today in
the possession of David S. Moore, forensic document examiner.
On June 27, 2012, Gary Rothstein, attorney for Bank of America,
served on Sam Sloan and his counsel Sam Ware a motion for sanctions
against the Motion for Discovery dated May 25, 2012 asking for
sanctions against Sam Sloan personally and against Sam Ware personally
in the amount of $13,596 for filing the motion for discovery which
they deemed to be a motion for reconsideration. In a cover letter,
Gary Rothstein, attorney for Bank of America, stated that unless the
motion for reconsideration were withdrawn he would file the motion for
sanctions, effectively blackmailing the Goodall Estate.
It is important to remember here that Sloan is a volunteer
administrator of the trust because the Goodall Trust has no money
because Bank of America stole it all and Sloan is not named in the
will. In addition, Attorney Sam Ware took this case as a contingency
case. By serving this motion for sanctions, Bank of America was
threatening Sloan and his counsel with a substantial financial loss of
$13,596 whereas they had nothing to gain from this case. (Record,
Volume III, page 1088)
So, the Administrator of the Goodall estate had everything to lose
and nothing to gain by continuing this case.
Nevertheless, the administrator and his counsel did not Cave in yet.
On June 29, 2012 Guide Dogs for the Blind joined this motion by
filing their own motion for sanctions for filing this petition for
rehearing. (See Record Volume III page 1060)
A hearing was held on these motions on July 19, 2012. Judge Busch
denied the motion which he deemed to be a motion for reconsideration
and he also denied the motion by Bank of America and Guide Dogs for
the Blind for Sanctions against the Administrator of the Goodall
Estate and Sam Ware, Counsel for the Goodall Estate.
On July 20, 2012, the very next day, Bank of America filed a new
motion for Sanctions against the Administrator of the Goodall Estate
and against Sam Ware Counsel for the Goodall Estate seeking sanctions
in the amount of between $13,000 and $16,000 against each of them.
This motion had been denied from the bench the previous day so
obviously nothing had changed. (See Record, Volume III, pages
1079-1088)
On July 27, 2012, the parties submitted for the judge's signature an
order denying the motion for reconsideration heard on July 19, 2012.
Sam Sloan, Administrator of the Estate, planned and intended to file a
notice of appeal as soon as the order was signed. Instead the judge
sat on the order for two full months and did not sign it until
September 26, 2012. It was entered the following day. This delay of
two months put it past the normal time for filing a notice of appeal.
(See Record, Volume IV, pages 1308-1312)
On August 14, 2012, Bank of America filed a third Motion for
Sanctions against the Administrator of the Goodall Estate and his
attorney. (See Record, Volume III, pages 1110)
On September 7, 2012, as a result of having three successive motions
for sanctions filed against him, Sam Ware filed a motion to be
relieved as counsel. He said that he could not effectively oppose the
repeated motions for sanctions against him while also acting as
counsel for the estate. No man can serve two masters so he needed to
be relieved as counsel so that he could defend himself against actions
by Bank of America and their counsel which threatened his professional
career.
Now again Sloan could not file his notice of appeal because he had to
wait until the judge decided the motion for sanctions and the motion
by his counsel to withdraw to escape the sanctions. As Sloan was
represented by Counsel, he could not file the Notice of Appeal by
himself. In addition, as these motions affected the merits of the case
and the judge was retaining jurisdiction over the case, there remained
the possibility that the judge would reverse himself and the case
would continue.
Finally, the judge held his hearing on the motion to withdraw which
was strenuously opposed by Sloan and granted the motion on November
15, 2012. On the same day, Judge Busch held his hearing on the motion
for sanctions and denied that motion, basically saying that there was
enough grounds for Counsel for the Goodall Estate to file a motion for
reconsideration but not enough grounds for him to grant it.
On November 21, 2012, Judge Busch signed the order denying the Motion
for Sanctions. Sloan filed his notice of appeal the very same day.
ARGUMENT
The immediate issue before the court is the motion to withdraw as
counsel. Appellant has attempted to research the case law on this and
has found no case in which an attorney was allowed to withdraw under
the circumstances here. The sole reason given in the motion to
withdraw was concern about the motion for sanctions. However, the
threat of sanctions is not grounds to withdraw from a case. Otherwise,
in every case an aggressive litigant could easily chase opposing
counsel off a case.
A reason he gave at the hearing was “disagreements” about whether to
file the petition for rehearing. He obviously said this to get himself
off the motion for sanctions. One can see by a perusal of the record
that includes many documents written, signed and filed by Sam Ware,
that he substantially agreed with the views of the Administrator Sam
Sloan about this case. On one point, he was not willing to go as far.
Although the Administrator of the Estate, Sam Sloan, declared the
signature on the purported trust dated August 24, 1994 (just 17 days
before Col. Kenneth Goodall died) to be “a forgery”, this was based on
the fact that he knew the Goodall Family for 50 years plus he had
access to their personal notes, letters and files. He also knew Mike
Goodall well enough to know that he would have never gone against the
wishes of his parents. The attorney Sam Ware never met the Goodalls,
and so could not be as sure about this, but he did question the
authenticity of the document and demanded that it be produced. The
Bank of America refused to produce the document and said that it had
been lost. So, the result was the same regardless of whether it was “a
forgery” or merely “not authentic”.
Attorneys often have disagreements with their clients. A mere
disagreement is not grounds to withdraw. Attorney Sam Ware did not do
anything different from what Sam Sloan asked him to do. Sam Sloan
expressed satisfaction with his representation and wanted him to
continue and by this appeal is asking that he be reinstated.
In addition, the real client is the Goodall Estate, not Sam Sloan
personally. Sam Ware has an obligation to represent the interests of
all 23 Goodall heirs. Thus, if this court fails to reverse the
decision of the court below, all 23 heirs will be left without legal
representation. Counsel for Bank of America recently stated that the
bank has spent all the Goodall money, the entire two million, and
there is nothing left. So, the Goodall heirs will receive nothing
unless this order is reversed.
Appellant has approached more than a dozen qualified attorneys asking
them to represent the estate and all have declined. They all give much
the some reason. They can see that any attorney who undertakes to
represent the Goodall Estate will be attacked by Bank of America, much
as Sam Ware has been attacked by Bank of America here.
Meanwhile, the case is far from over. We believe that the May 16,
2012 order is not a final judgment. It does not contain the word
“Judgment”. It does not include findings of fact and conclusions of
law. It does not award money or property to anybody. Last month Bank
of America filed a new case against the Estate in Marin County
Superior Court and last week counsel for Bank of America said he is
getting ready to file a new motion in the case presented here in San
Francisco Superior Court.
Clearly, the Estate needs to get legal representation, not just an in
pro per non-lawyer like Sam Sloan, but we cannot get representation if
this order is not reversed.
Going further, this case should be dismissed altogether. The case
under this number PTR 99-273030 was filed by Michael Goodall on
December 21, 1999 demanding the removal of Bank of America as Trustee
of the Trust. The attorney for Michael Goodall was Robert J. Rothman.
The last document filed by Rothman was entitled “Points and
Authorities in Support of Petition to Remove Trustee”. (See Record,
Volume I, page 179) It was filed on March 21, 2000. No response was
ever filed by Bank of America. Unfortunately, at that point Mike
Goodall ran out of money to pay his lawyer. We now know what would
have happened had he paid more money. He would have paid and paid and
paid until whatever money he had ran out, as Bank of America and its
attorneys was prepared to fight like tigers to the end to keep this
estate and to get the Goodall Millions.
Then 11 years passed during which nothing happened in this case.
Then, on April 21, 2011, eleven years and one month later, Bank of
America filed its “Petition for Order Confirming Real Property as an
Asset of the Trust”. (See Record, Volume I, page 186). They used the
old case number to file a new case for the opposite cause of action.
They did this specifically to avoid filing in Marin County Probate
Court where the Goodall Estate had been admitted to probate months
earlier. Their petition states on its face that the purpose is to
change the title to the Goodall Residence and in effect to
collaterally attack the order of the Marin County Probate Court dated
March 21, 2011. (See Record, Volume I, page 187) In his decision on
November 28, 2012, Judge Roy Chernus of Marin County Superior Court
stated exactly that, that the San Francisco petition was filed for
purpose of collateral attack.
Appellant had filed a motion for discovery. The superior court had
ruled in favor of a new claim by Bank of America that a Statute of
Limitations barred petitioner's defense. This claim was obviously
bogus because Mike Goodall had filed this very case back in 1999 to
object to Bank of America being the trustee.
The judge delayed two months in signing the order. This delay of two
months by the judge was what put the case over the time limit to file
the appeal. The order was submitted to the judge for signing on July
27, 2012. The judge did not sign it until September 26, 2012.
The order that Judge Busch signed had not been after proper notice
and opportunity for a hearing. Indeed, there has never been a fact
hearing in this case. There has never been sworn testimony of any
witnesses. There has been no discovery. No documents have been
produced by Bank of America. Hastings says that he has lost the trust
documents. If you look at the case files you will see that there have
been no declarations, no exhibits, no verifications, no findings of
facts and no conclusions of law.
Neither Bank of America nor Guide Dogs for the Blind have ever filed
a brief or a memorandum of law in this case. They have never cited a
single case, they have never explained upon what legal grounds or
theory of law they are entitled to proceed. They have not even
explained what they are even doing appearing in this case as the last
of the Goodalls died more than two years ago. They have no standing to
be appearing in this case. Only the contestants, namely Guide Dogs and
the legitimate heirs have standing.
Meanwhile, James R. Hastings, who says that he has lost the
documents, is teaching a class in Estate Planning. On page 15 of the
current Tamalpais Union High School District Summer Camp Sneak Preview
there is an ad for the next course by James Hastings. It is called
Estate Planning 101. The next class started on April 23, 2013 and the
fee to attend the class is $25.
At a hearing in Marin County Superior Court on November 28, 2012 in
which Bank of America sought to enforce the order from which an appeal
was taken, Judge Roy Chernus ruled that the May 2012 order was not a
final judgment and was interlocutory. According to that ruling, appeal
is unnecessary. However, Bank of America disagrees. They consider May
2012 the San Francisco order to be the final judgment. As a result
this case is stalemated.
The actions of the San Francisco Superior Court Judge attempted to
make this case “Appeal Proof” by among other things waiting a full two
months before signing the order denying the petition for rehearing.
The order was submitted to the judge for signing on July 27, 2012. The
judge did not sign it until September 26, 2012.
More than that, actions by Bank of America and Guide Dogs for the
Blind unethically made it impossible for Petitioner to retain new
counsel. They did this by repeatedly filing motions for sanctions
against existing counsel. Their first motion for sanctions which
demanded attorneys fees between $13,000 and $16,000 against both the
Administrator of the Goodall Estate and his counsel was filed on June
29, 2012. That motion was denied by Judge Busch on June 19, 2012.
After considering this matter, this court should dismiss this case
entirely. The proper Probate Proceeding involving the Goodall Estate
is now pending over in Marin County Probate Court. Case No. PR
1100596. Everything about this case happened over in Marin County. The
only reason Bank of America filed in San Francisco is they do not like
the judge over in Marin.
CONCLUSION
For all of the reasons Set forth above, the decision and order of the
court below must be reversed and this case should be dismissed
entirely.
This document is prepared in Courier New Bold 12 point with a word
count of 13,298 words.
Respectfully Submitted,
April 25, 2013
Samuel H. Sloan
Administrator of Estate
of K. Michael Goodall
with Will Annexed
461 Peachstone Terrace
San Rafael CA 94903
(415) 419-5980
917-659-3397
***@gmail.com
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
No. A137739
SAMUEL H. SLOAN, Administrator of the Estate
of K. Michael Goodall with Will Annexed
Objector and Appellant,
v.
SAM WARE,
Movant and Respondent,
and
Bank of America, N. A. Plaintiff
Verification:
Sam Sloan declares:
I have read the Appellant's Brief I filed in this matter, and I
declare under penalty of perjury under the laws of the State of
California and the contents thereof are true and correct to the best
of my knowledge and belief.
DATED: April 25, 2013
Sam Sloan
CERTIFICATE OF INTERESTED PARTIES AND CERTIFICATE OF SERVICE
Pursuant to California Rules of Court, Appellate Rules, Rule 8.208 the
following is a list of parties who have appeared in this case or are
interested in the outcome of this case. This includes all of the
surviving Brothers and Sisters of Kenneth and Rachel Goodall and for
those who have not survived their known children and grandchildren. I
hereby state that on April 25, 2013 I served a copy of this
Appellant's Brief by mail to all of the following:
Gary D. Rothstein
Manatt, Phelps & Phillips, LLP
One Embarcadero Center, 30th Floor
San Francisco CA 94111
Alicia A. Adornato
Attorney for Guide Dogs for the Blind
Reed Smith LLP
101 Second Street, Suite 1800
San Francisco CA 94105
Guide Dogs for the Blind
Mr. Thomas Horton
Planned Potential Beneficiary Giving Director
Guide Dogs for the Blind, Inc.
350 Los Ranchitos Road
San Rafael, CA 94903
Sam Ware
700 Larkspur Landing Circle, #199
Larkspur, CA 94939
John L. McDonnell, Jr.
Reed Smith LLP
1999 Harrison Street, 24th Floor
Oakland CA 94612
Don A. Lesser
1010 B Street Suite 350
San Rafael CA 94901
Jerry R. Hauser
Miller Hauser Law Group
4 Embarcadero Center, 39th Floor
San Francisco, CA 94111
James R. Hastings
1003 3rd Street
San Rafael, CA 94901
Robert J. Rothman
601 California St Suite 1600
San Francisco, CA 94108
Deborah Rodgers
Bradley Luxury Division
851 Irwin Street
San Rafael CA 94901
Roy Hoppe
461 Peachstone Terrace
San Rafael CA 94903
Frank Thornally
461 Peachstone Terrace
San Rafael CA 94903
Julia Bentley Lemons
Apt. 308
12800 Marion Lane W
Minnetonka, MN 55305-1368
Surviving Sibling of Rachel Goodall
Robert B. Bentley
Timberwood Senior Living Rm. #34
5020 WE 44th St.
Oklahoma City, OK 73135
Helen Beth Bentley Perry
7926 Praver Drive W
Jacksonville,FL 32217
Surviving Sibling of Rachel Goodall
Clenda Fern Bentley Zinar
4536 Chatman Street
The Colony, TX 75056
Beverly Gale Bentley Young
2316 Trenton
McKinney, TX 75070
Vickie Bentley Hankins
14580 NE 6th
Choctaw, OK 73020
Jeffrey Bentley
4701 N Douglas Boulevard
Spencer, OK 73084
Chad Everett Bentley
1609 Teepee Trail
Kingsland, TX 78639
Jeanette Goodall Phillips
152 S llth Street
Salina, Kansas 67401
Kristin Kane
University of California
Berkeley College of Engineering
College Relations
208 Mclaughlin Hall #1722
Berkeley, CA 9472A-1722
Bank of America
1000 4th St.
San Rafael, CA 94901