[00:00:00] Speaker 04:
Morning, Your Honor.

[00:00:01] Speaker 04:
We'd like to reserve 10 minutes of our time for rebuttal.

[00:00:06] Speaker 04:
That's not a power move, but it does reflect what I think is the state of the case of the appeal after the briefing was completed.

[00:00:16] Speaker 04:
So, unless I'm going to get questions right away, I'll just summarize briefly what's in our opening brief.

[00:00:25] Speaker 04:
There were two alleged conspiracies, an original conspiracy and then a cover-up conspiracy.

[00:00:32] Speaker 04:
The trial court made different errors with respect to each one.

[00:00:39] Speaker 04:
With respect to the original conspiracy, the trial court first turned Tom Lee and Iqbal on his head in a way that is unprecedented.

[00:00:52] Speaker 04:
The trial court

[00:00:54] Speaker 04:
instead of assessing the plausibility of the claims, assessed the plausibility of the factual allegations underpinning the claims.

[00:01:03] Speaker 04:
That made her a finder of fact, supplanted the role of a jury, and she skipped the in-between step.

[00:01:13] Speaker 04:
The in-between step being, starting with the presumption that the factual allegations are true, the trial court simply looks to see if there's an exception to that.

[00:01:24] Speaker 04:
either because the factual allegations are fantastic or delusional, to use the analogy that Justice Souter did in his Iqbal descent, little green men, time travel, trips to Pluto, things of that nature, or because the factual allegations are purely conclusions.

[00:01:50] Speaker 04:
Neither of those categories applied

[00:01:53] Speaker 04:
and she simply ignored her obligation to presume the factual allegations to be true.

[00:02:00] Speaker 04:
She instead set herself up as the pathologist-in-chief, the police officer-in-chief, and so forth.

[00:02:08] Speaker 04:
She completely supplanted the role of the jury.

[00:02:10] Speaker 02:
Mr. North, where in your complaint do you allege injury?

[00:02:20] Speaker 02:
No problem.

[00:02:21] Speaker 02:
An injury that's within the statute of limitations.

[00:02:25] Speaker 02:
I think what I have other than the original making of the trust is some, well, I guess I'll just leave it at that.

[00:02:34] Speaker 02:
Where is your injury within the statute of limitations for this case?

[00:02:37] Speaker 04:
Well, the injury is when Mr. Muller learned that virtually all assets of the trust had been taken by his father.

[00:02:49] Speaker 04:
his aunt and his uncle.

[00:02:51] Speaker 06:
When was that?

[00:02:52] Speaker 06:
When was that?

[00:02:53] Speaker 04:
Well, when they were taken and when he discovered it.

[00:02:56] Speaker 06:
When did he discover it?

[00:02:57] Speaker 04:
2019 at the earliest, well within the statute of limitations in a case that was filed in.

[00:03:04] Speaker 06:
I thought he had discovered it in 2012.

[00:03:06] Speaker 06:
No.

[00:03:09] Speaker 04:
And this is another, well,

[00:03:13] Speaker 06:
If he discovered it in 2012, then the statute of limitations applies, correct?

[00:03:18] Speaker 04:
Would apply to what he discovered in 2012.

[00:03:21] Speaker 06:
Which was the sale of the four properties.

[00:03:24] Speaker 04:
Yes.

[00:03:25] Speaker 06:
However, wasn't he on notice at that time?

[00:03:28] Speaker 04:
No.

[00:03:29] Speaker 04:
That's where the trial court went off the rails.

[00:03:33] Speaker 04:
What she did was she applied the very pattern

[00:03:38] Speaker 04:
pattern discovery rule that was rejected in Rotella, also authored by Souter.

[00:03:48] Speaker 04:
What Mr. Moola discovered in 2012 was that there had been deathbed deeds, but those deathbed deeds were ineffectual.

[00:03:56] Speaker 04:
They never transferred anything out of the trust.

[00:03:59] Speaker 04:
and you can't have a discovery of injury.

[00:04:02] Speaker 06:
Well, didn't the probate court affirm or give its blessing to those transfers?

[00:04:07] Speaker 04:
2006 and Mr. Muller on the pleadings did not know about that step in the equation until 2019.

[00:04:19] Speaker 02:
Why is Mr. Muller's

[00:04:24] Speaker 02:
interest, remainder interest in the trust sufficient to convey standing for RICO purposes?

[00:04:32] Speaker 04:
Because it vested the trust upon his grandmother's desk, became irrevocable.

[00:04:38] Speaker 02:
But as I understand it, did the trust provide him any right at all to anything more than the residue?

[00:04:48] Speaker 04:
Yes, it did, because it limited his aunt, the life beneficiary,

[00:04:52] Speaker 04:
to the statutory needs, she was only able to use the trust race and interest income and so forth, profits, for the statutory purposes of health, maintenance, education, and welfare.

[00:05:11] Speaker 04:
She couldn't just willy-nilly gift herself money.

[00:05:16] Speaker 04:
So that meant she had to preserve most of it that wasn't used in that way, and none of it was used in that way.

[00:05:23] Speaker 04:
None of it was used in that way by her when she was the trustee.

[00:05:26] Speaker 04:
And when she was conserved, the successor trustee testified that she did not ever hit upon the grandmother's trust because the aunt had a multimillion dollar trust of her own.

[00:05:43] Speaker 04:
She had no need to touch it, and she didn't.

[00:05:46] Speaker 02:
If that's insufficient for an injury for our purposes, what other injuries?

[00:05:53] Speaker 02:
You have something about attorney's fees.

[00:05:55] Speaker 02:
What attorney's fees?

[00:05:56] Speaker 02:
And these were, I think, tell us more about when those were incurred and the nature of those.

[00:06:01] Speaker 04:
When Mr. Mueller began to litigate in the probate court in 2019, he began to incur attorney's fees.

[00:06:12] Speaker 04:
He proceeded probate.

[00:06:14] Speaker 02:
He hired lawyers in 2012.

[00:06:17] Speaker 04:
Well, that was a relatively minor amount of money, but he did.

[00:06:21] Speaker 02:
Well, but for purposes of notice of the injuries that he knew or should have known, that he hired a lawyer to try to get to the bottom of these questions.

[00:06:30] Speaker 04:
Who lied to him.

[00:06:32] Speaker 02:
Who lied to him.

[00:06:33] Speaker 02:
Okay, but how is that part of the inquiry for a RICO injury?

[00:06:38] Speaker 04:
The question is whether he knew he was... But the only thing he learned in 2012

[00:06:44] Speaker 04:
on the pleadings, which is what we're talking about, the only thing he learned was that deathbed deeds purporting to transfer property out of the trust had been marked shortly before his grandmother's death.

[00:07:02] Speaker 04:
But they didn't succeed in doing it.

[00:07:05] Speaker 04:
And you can't take an event that did not cause injury and use it as a marker

[00:07:12] Speaker 04:
for injury that starts the running of a statute of limitations.

[00:07:15] Speaker 02:
And so in 2012, he knew about the deathbed deeds, and he also knew that they were ineffective, so he knew that he was not injured.

[00:07:27] Speaker 02:
Is that your argument?

[00:07:28] Speaker 04:
He did not know that.

[00:07:29] Speaker 04:
No.

[00:07:31] Speaker 04:
On the face of the pleadings, what he learned of in 2012 was the fact that deathbed deeds had been obtained.

[00:07:43] Speaker 02:
And that's not sufficient notice of the injury of the conspiracy that he now alleges.

[00:07:48] Speaker 04:
Well, that's the problem.

[00:07:52] Speaker 04:
There was no notice of an injury because the event he acquired knowledge of didn't cause injury.

[00:08:00] Speaker 04:
It couldn't because the deeds were ineffective.

[00:08:03] Speaker 02:
So it was a mistake of fact or something.

[00:08:05] Speaker 02:
Exactly.

[00:08:06] Speaker 02:
But even if he knew that he was injured, he hadn't actually been injured.

[00:08:10] Speaker 02:
Yet.

[00:08:10] Speaker 04:
Even if he mistakenly thought he had been injured, he hadn't been.

[00:08:14] Speaker 04:
And his attorney, who the complaint alleges was in cohorts with the conspirators in the second conspiracy, misled him into believing that any ability to attack those transfers which he mistakenly thought had occurred was time guard, and it wasn't.

[00:08:38] Speaker 04:
And the lawyer who told him that was a creditor's lawyer who was well experienced and clearly familiar with California's what's now called the Avoidable Transfer Act, but then was called the Fraudulent Transfer Act.

[00:08:52] Speaker 06:
Let's shift gears just for a second, counsel.

[00:08:55] Speaker 06:
Why do you want us to take judicial notice of

[00:09:01] Speaker 06:
Wikipedia entries regarding the exhuming of historic figures and testing hair follicles and things of that sort?

[00:09:11] Speaker 04:
Because the trial court below set herself up as a pathologist-in-chief and, based on her own supposition, concluded that it was impossible to

[00:09:25] Speaker 04:
obtained forensic evidence 17 or 18 years after death.

[00:09:30] Speaker 04:
So the Wikipedia articles, each of which is accompanied by an official publication of the United States government, shows widespread knowledge that the opposite is true, and then the government issued... Was, was, were any of these articles or publications available to the trial court?

[00:09:52] Speaker 04:
No, the whole issue was manufactured by the trial court.

[00:09:55] Speaker 04:
None of this came up.

[00:09:58] Speaker 04:
The defendants didn't come in and say, oh, look, here's scientific evidence that you can't prove, you can't obtain forensic evidence that long after death.

[00:10:11] Speaker 04:
They couldn't have done so because it's clear from the motion for judicial notice that we have numerous instances of far longer periods of time

[00:10:21] Speaker 04:
when autopsies were performed, even a century and a half after death, and enough forensic evidence was recovered to determine the cause of death.

[00:10:34] Speaker 04:
Thank you.

[00:10:34] Speaker 05:
Council, we've taken you deeply into your very long rebuttal time.

[00:10:38] Speaker 05:
You still have five minutes or so left.

[00:10:40] Speaker 05:
So if you want to take that, we'll have your colleagues on the other sides talk.

[00:10:45] Speaker 05:
I guess Mr. Vucinich?

[00:10:49] Speaker 05:
Vucinich.

[00:10:50] Speaker 03:
All right.

[00:10:50] Speaker 03:
Jeff Vucinich.

[00:10:52] Speaker 03:
And I appreciate the opportunity to talk with you.

[00:10:54] Speaker 03:
And I represent Christopher Bjorn, an attorney law firm, the Chris law firm.

[00:11:02] Speaker 03:
And I'm going to address issues only related to him.

[00:11:05] Speaker 03:
I'll defer to my other counsel on the issues of injury, statute limitations, and matters that relate to him.

[00:11:12] Speaker 03:
I heard counsel say that Judge Freeman was off the rails, manufactured something.

[00:11:20] Speaker 03:
There was no error on her part.

[00:11:24] Speaker 03:
No error whatsoever.

[00:11:25] Speaker 03:
We, of course, agree and then agree then some with respect to her findings.

[00:11:30] Speaker 03:
My client Christopher Bjorn is a wills and trusts lawyer.

[00:11:33] Speaker 03:
He's been a lawyer for about 30 years, well respected in the community.

[00:11:38] Speaker 03:
And what was he accused of in this matter?

[00:11:41] Speaker 03:
He's accused of being a co-conspirator, aiding and abetting a Rico-ish statute.

[00:11:47] Speaker 03:
He, a respected attorney, is accused of a pattern of wrongful conduct involving robbery, murder, something to do with no basis whatsoever, the parties murdering their mother.

[00:12:00] Speaker 03:
The father and his brother murdering their mother.

[00:12:05] Speaker 03:
And that's what he's accused of in writing.

[00:12:07] Speaker 03:
If you're going to make an accusation like that, you better have proof to back it up.

[00:12:12] Speaker 03:
And there is none.

[00:12:13] Speaker 03:
What's the complaint against him in this matter?

[00:12:16] Speaker 03:
What's the basis of it?

[00:12:18] Speaker 03:
And it's on page 50 of the complaint.

[00:12:21] Speaker 03:
He was referred by Mr. Temerman.

[00:12:28] Speaker 03:
He was referred a client, and that client was the plaintiff.

[00:12:31] Speaker 03:
And so he's a referral attorney.

[00:12:34] Speaker 03:
Now he's accused of violating a RICO statute.

[00:12:38] Speaker 03:
He's accused of essentially murder, robbery, looting, for a referral.

[00:12:45] Speaker 03:
That's what it is.

[00:12:46] Speaker 03:
In the words, fantastical and delusional, I heard from plaintiffs' counsel relative to this claim.

[00:12:54] Speaker 03:
And that's what it is.

[00:12:56] Speaker 03:
With respect to a RICO statute, they have to show there's some common purpose.

[00:13:01] Speaker 03:
He received a referral.

[00:13:02] Speaker 03:
That's it.

[00:13:04] Speaker 03:
There's no allegations of a common purpose against him.

[00:13:07] Speaker 06:
Counsel, has this circuit recognized an independent claim for aiding and abetting in a civil RICO case?

[00:13:14] Speaker 03:
Absolutely not.

[00:13:15] Speaker 06:
All right.

[00:13:16] Speaker 03:
And I was going to get to that, and I was also going to get to, and that's part of our brief, and this circuit does not recognize aiding and abetting.

[00:13:25] Speaker 03:
In addition, I would point out,

[00:13:27] Speaker 06:
And the claim against your client is strictly an aiding and abetting claim, correct?

[00:13:32] Speaker 03:
That is true.

[00:13:33] Speaker 03:
All right.

[00:13:33] Speaker 03:
It's right to the point of it.

[00:13:36] Speaker 03:
And I think it fails on that basis.

[00:13:39] Speaker 03:
In addition, in their opening brief, they didn't argue that, OK?

[00:13:46] Speaker 03:
They didn't argue anything about opening a betting.

[00:13:48] Speaker 03:
And my understanding, under the law, they're precluded from raising it now.

[00:13:52] Speaker 03:
And they raised it in their reply brief, but they did not argue it in their opening brief.

[00:13:57] Speaker 03:
And we cited case law to the effect in our brief that they're now precluded from raising it now.

[00:14:02] Speaker 03:
So it's an aiding and a bedding case.

[00:14:05] Speaker 03:
It's precluded in the Ninth Circuit.

[00:14:07] Speaker 03:
And I was about to go through all the reasons why under RICO it doesn't apply, but what's its motive?

[00:14:13] Speaker 03:
There's no motive.

[00:14:14] Speaker 03:
There's no common purpose.

[00:14:16] Speaker 03:
He doesn't benefit from it.

[00:14:17] Speaker 03:
There's just nothing connected with him other than that he's an attorney who gets a referral and moves on and it wasn't pled correctly, and it's not appropriate under the law.

[00:14:27] Speaker 03:
Any questions?

[00:14:28] Speaker 05:
I don't have anything.

[00:14:29] Speaker 05:
Thank you, counsel.

[00:14:30] Speaker 03:
Thank you.

[00:14:30] Speaker 05:
I feel like we have none.

[00:14:32] Speaker 03:
And I would like to just add one thing, and I do apologize.

[00:14:35] Speaker 03:
You know, I heard the words fantastical and delusional.

[00:14:41] Speaker 03:
I think this is a miscarriage of justice and abuse of the legal process to claim to some attorney who gets a referral that you're part of a murder.

[00:14:49] Speaker 03:
You're part of aiding and bedding in a murder.

[00:14:52] Speaker 03:
And to have that in writing and to have that out for the community to know.

[00:14:54] Speaker 03:
And that's why I'd like the court to end this.

[00:14:57] Speaker 03:
And I appreciate your time and effort.

[00:14:59] Speaker 03:
And I appreciate Judge Freeman's rulings.

[00:15:01] Speaker 03:
Thank you.

[00:15:04] Speaker 05:
We'll hear from Mr. Huntley.

[00:15:09] Speaker 00:
Good morning, Your Honor.

[00:15:10] Speaker 00:
Hannibal Huntley for Terry Campbell Wallace, appellee.

[00:15:14] Speaker 00:
May it please the Court, I'd like to join with Mr. Vucinich's point regarding the aiding and abetting liability as to Ms.

[00:15:21] Speaker 00:
Wallace insofar as that she's accused of aiding and abetting with the original conspiracy.

[00:15:27] Speaker 00:
My overall argument addresses two points.

[00:15:30] Speaker 00:
First, that appellant has not shown any enterprise liability

[00:15:35] Speaker 00:
for either conspiracy, and second, that all predicate acts alleged by appellant fail.

[00:15:41] Speaker 00:
First, enterprise liability requires a common purpose, a structure, and longevity to accomplish that purpose.

[00:15:49] Speaker 00:
Furthermore, a RICO conspiracy requires some part in directing from each of the members of the conspiracy.

[00:15:58] Speaker 05:
So who's gonna address the statutory limitations issue?

[00:16:03] Speaker 05:
All right, because that's, you heard us talk about that.

[00:16:06] Speaker 05:
So it's the problem with Chau put it up.

[00:16:09] Speaker 05:
He's gonna have five minutes to talk about one of the few issues that really seems to drive this case.

[00:16:13] Speaker 05:
But go ahead, continue.

[00:16:14] Speaker 00:
Thank you, your honor.

[00:16:15] Speaker 00:
Turning to the first conspiracy, we believe that there was no plausible showing of a RICO enterprise carried out by the siblings.

[00:16:23] Speaker 00:
There's no evidence of any communications between the siblings of the enterprise.

[00:16:29] Speaker 00:
There's no plausible allegation or assertion of any level of participation from each of the individual sibling appellees.

[00:16:40] Speaker 00:
And finally, there was no allegations of any decision-making structure

[00:16:43] Speaker 00:
or operational structure for the first conspiracy.

[00:16:47] Speaker 00:
Turning to the second conspiracy, the cover-up conspiracy, there was no allegation in Appellant's original complaint or in their opening brief of any prior connection between Temmerman, Bayh, or Smith.

[00:17:00] Speaker 00:
And as previously stated, the only connection between Temmerman and Mr. Bjorn was tenuous insofar as that it was a referral.

[00:17:09] Speaker 00:
There was also no adequate allegation of a nexus or the coordination between the parties.

[00:17:14] Speaker 00:
The court should keep in mind these parties were probate court appointed professionals.

[00:17:20] Speaker 00:
They had no motive or other reasoning to participate in the cover up of the original conspiracy.

[00:17:29] Speaker 00:
Turning to, oh, sorry, and then Appellant also does not, fails to show the connection between the various actions in the cover-up conspiracy.

[00:17:40] Speaker 00:
He merely describes various independent acts.

[00:17:44] Speaker 00:
Turning to the pattern of racketeering activity, which is also required under RICO, that's two or more predicate acts.

[00:17:50] Speaker 00:
For the first conspiracy, the district court was correct, and Appellant fails to show how his murder allegation was plausible.

[00:17:59] Speaker 00:
The only evidence put forward in the original complaint is three effectively conclusory statements from the murder victim's caretaker regarding certain symptoms that she allegedly experienced.

[00:18:16] Speaker 00:
Notably, that caretaker was not an expert on poisoning or in any other way qualified to render an opinion on those allegations.

[00:18:27] Speaker 00:
There's also no linkage between the sibling appellees and the murder allegation insofar as that it's just not contained in the original complaint.

[00:18:40] Speaker 00:
Turning to the looting predicate act, which was also alleged in the first conspiracy, there's no indication that the trust assets were actually stolen.

[00:18:49] Speaker 00:
As my co-counsel will address later, all of the probate court transfers of property in the 2006 hearings were approved by the probate court.

[00:19:00] Speaker 00:
Similarly, all of the transfers from the Schwab account, from the Osier Trust,

[00:19:04] Speaker 00:
were also approved by the probate court.

[00:19:06] Speaker 00:
Finally, Helene, the one of the, the trustee of the original Ogier Trust and the Stuckey Trust had absolute discretion to use those funds for her own health, education, welfare and support, which I feel that appellant does not contest or is otherwise able to rebut.

[00:19:30] Speaker 06:
Collectively the three of you are suggesting or you've also filed a motion for judicial notice 11 documents were those 11 documents available to the to the trial court Yes, your honor And how are they available?

[00:19:47] Speaker 00:
I believe that they were part of the they were available just as a record of a previous proceeding and

[00:19:53] Speaker 06:
Was there a motion for judicial notice made before the trial court?

[00:20:03] Speaker 00:
I don't believe so, Your Honor.

[00:20:05] Speaker 00:
At least not for those specific hearings.

[00:20:09] Speaker 06:
And why do we need to take judicial notice of those documents now?

[00:20:13] Speaker 00:
Uh, they are relevant to the allegations contained in the opening brief.

[00:20:19] Speaker 00:
Uh, appellant makes reference to those specific probate court, uh, proceedings.

[00:20:25] Speaker 00:
And thus, I believe, we believe that the, uh, those, uh, records of those proceedings should be entered into their records simply because appellant opens the door for them to be noticed.

[00:20:36] Speaker 05:
Thank you, counsel.

[00:20:37] Speaker 05:
We'll hear from Mr. McComb.

[00:20:40] Speaker 05:
That's your limitations.

[00:20:42] Speaker 01:
Thank you, Your Honors.

[00:20:43] Speaker 01:
Ethan McCallum from McDowell-Cotter for the Pellee Allen-Moulet.

[00:20:48] Speaker 01:
Yes, the statute of limitations.

[00:20:50] Speaker 01:
The Pellees don't dispute that the Injury Discovery Rule from Rotella and Grimmett apply, and the district court used that rule in its decision.

[00:21:00] Speaker 05:
The argument is everything he knew in 2012 didn't actually injure him.

[00:21:04] Speaker 05:
That's how I understand this argument.

[00:21:07] Speaker 01:
It didn't actually injure him, but if it did, that's when he was put on notice to do an investigation, exercise reasonable diligence, and investigate further.

[00:21:15] Speaker 01:
In his complaint, he alleges he went to Mr. Bjorn to inquire about these deathbed deeds.

[00:21:22] Speaker 01:
He was told by Bjorn, allegedly, that the statute of limitations had expired.

[00:21:27] Speaker 01:
And therefore, he went home and sat on his claims.

[00:21:30] Speaker 01:
But if these were deathbed deeds that were ineffective, there would be no statute of limitations at issue.

[00:21:38] Speaker 01:
So more than likely, I think the court can draw an inference that he was actually discussing the petition to correct the deathbed deeds with Mr. Bjorn.

[00:21:49] Speaker 06:
Mr. McCallum, as I read Judge Freeman's order,

[00:21:53] Speaker 06:
She references or she relies in part after she does her RICO elements analysis on the statute of limitations as it applies to the first RICO claim.

[00:22:06] Speaker 06:
It does not appear that she relied upon the statute of limitations as it relates to the second RICO claim.

[00:22:13] Speaker 06:
Does the statute of limitations also apply to the second RICO claim?

[00:22:18] Speaker 06:
In other words, are the damages the same?

[00:22:20] Speaker 06:
My colleague Judge Johnstone refers to the attorney's fees.

[00:22:24] Speaker 06:
I mean, are you with me?

[00:22:28] Speaker 01:
Sort of.

[00:22:29] Speaker 01:
So I think what I'm understanding is you're asking if the statute starts the same thing.

[00:22:34] Speaker 06:
If we were to find that the statute of limitations bars the first RICO claim, does it also bar the second RICO claim?

[00:22:41] Speaker 06:
uh... even though the court the lower court didn't rely upon doesn't seem to have referred to the statute limitations in dismissing the second claim i think it's fair to say that would apply because

[00:22:55] Speaker 01:
Appellant was then on inquiry notice that something was going on.

[00:22:58] Speaker 01:
He didn't exercise reasonable diligence there from to investigate this further.

[00:23:02] Speaker 01:
He knew that Sarah, the grandmother, had a caretaker.

[00:23:06] Speaker 01:
He could have went and spoken to her.

[00:23:08] Speaker 01:
He knew that Sarah's health condition before she died.

[00:23:12] Speaker 01:
He knew that she died.

[00:23:13] Speaker 01:
And he didn't go and investigate and talk with her to discover this alleged looting and the subsequent conservatorship, the petition to confirm the properties.

[00:23:22] Speaker 01:
He could have done this and gone and investigated and discussed with her, but he didn't.

[00:23:26] Speaker 01:
He sat and waited.

[00:23:28] Speaker 01:
So I think it would apply in that sense on the second conspiracy.

[00:23:32] Speaker 01:
And the courts have rejected the last predicate act rule under the Clair case, because that would allow a plaintiff to sit on his claims until that last predicate act creates a new four-year statute.

[00:23:50] Speaker 01:
And the mere continuance of the second conspiracy doesn't also toll his statute of limitations.

[00:23:56] Speaker 01:
Appellant did raise an argument in the reply brief that he should not be held to account for his attorney's knowledge, Mr. Bjorn's knowledge, about the statute of limitations or the claims he may have had because it was fraudulent and concealed.

[00:24:11] Speaker 01:
However, there is case law that

[00:24:16] Speaker 01:
third party innocent parties, such as the other alleged conspirators, they should not suffer as a result of an attorney's faulty advice to a client.

[00:24:28] Speaker 01:
I do want to get to the damages and standing issue.

[00:24:32] Speaker 01:
I think that's the clearest cut issue here in this case.

[00:24:36] Speaker 01:
We know from the trust documents and the testamentary documents that Paul Jr.

[00:24:40] Speaker 01:
was a contingent remainder

[00:24:42] Speaker 01:
beneficiary.

[00:24:43] Speaker 01:
That contingency is a conditioned precedent of Helene's death.

[00:24:46] Speaker 01:
She has not died.

[00:24:48] Speaker 01:
He's not entitled to inherit any assets from the trust until she dies.

[00:24:53] Speaker 01:
He's raised for the first time on appeal this issue of her discretion and abuse of the health, education, maintenance and support.

[00:25:01] Speaker 01:
That wasn't raised in the lower court.

[00:25:04] Speaker 01:
And further on that issue,

[00:25:08] Speaker 01:
The trust is very clear that she has absolute discretion in her health, education, maintenance, and support.

[00:25:14] Speaker 01:
Paul Jr., if he disagreed with that, he could have brought claims on that issue in the probate courts.

[00:25:21] Speaker 01:
He also refers to this issue of adjustum generis and interpreting the will and the general assignment.

[00:25:31] Speaker 01:
The federal cases have held that adjustum generis is a construction of statutory interpretation.

[00:25:38] Speaker 01:
or construction, excuse me.

[00:25:40] Speaker 01:
California cases have also held that, I'm sorry, Civil Code 33, California Civil Code 3534.

[00:25:46] Speaker 05:
All right, Council, unless my colleagues have any further questions, I'm gonna cut you off.

[00:25:50] Speaker 01:
Thank you.

[00:25:50] Speaker 05:
I think your argument was probably the most helpful, but this is another example of the fact you should not split up arguments like this.

[00:25:57] Speaker 01:
I understand.

[00:25:57] Speaker 01:
Sorry, Your Honors, thank you.

[00:26:05] Speaker 04:
I have my work.

[00:26:06] Speaker 04:
Got out for me in five minutes.

[00:26:08] Speaker 04:
Is that all I have left, five?

[00:26:09] Speaker 04:
Four minutes and 50 seconds.

[00:26:11] Speaker 04:
Four and 50.

[00:26:12] Speaker 04:
In reverse, I'll just hit the high points.

[00:26:15] Speaker 04:
He has the wrong trust.

[00:26:17] Speaker 04:
The last council was talking about the wrong trust.

[00:26:20] Speaker 04:
And the judge below was looking at the wrong trust and confused two different trusts.

[00:26:26] Speaker 04:
There's the grandmother's trust.

[00:26:29] Speaker 04:
Helene, the aunt, was not the settler of that trust.

[00:26:32] Speaker 04:
Her mother was.

[00:26:34] Speaker 04:
And then there was the aunt's separate trust.

[00:26:36] Speaker 04:
The Ant Separate Trust was formed in 1997, several years before her mother established her trust, the Odger Trust.

[00:26:45] Speaker 04:
That's the only trust at issue in this RICO case.

[00:26:51] Speaker 04:
It is certainly true that as to her own assets, which she placed in her own trust, Helene, the Ant, had unfettered discretion as the settler, not as a trustee, but as the settler of the trust, to use them as she wished.

[00:27:08] Speaker 04:
But she did not have unfettered discretion with respect to the assets of her mother's trust, as to which she was merely a trustee, a successor trustee.

[00:27:19] Speaker 04:
Well, let me be clear.

[00:27:20] Speaker 04:
She was a co-trustee and became the sole surviving trustee when her mother died.

[00:27:25] Speaker 04:
She had no unfettered discretion as to that.

[00:27:29] Speaker 04:
California law is crystal clear.

[00:27:31] Speaker 04:
You'll see it in our briefs.

[00:27:34] Speaker 04:
There is no such thing as absolute discretion.

[00:27:37] Speaker 04:
And if you are a trustee who also is a beneficiary, you're limited to the four specified needs that are in the California statutes.

[00:27:48] Speaker 04:
Didn't your clients settle a lot of these claims?

[00:27:53] Speaker 04:
Not as to the Otra Trust.

[00:27:55] Speaker 04:
There was a settlement with respect to the Ants Trust.

[00:28:00] Speaker 04:
It happened in litigation involving the Ants Trust.

[00:28:03] Speaker 04:
has absolutely nothing to do with the grandmother's trust.

[00:28:08] Speaker 04:
The trial court below, for some reason, thought that upon the grandmother's death, the aunt received assets and then put them in her trust, her pre-existing trust.

[00:28:24] Speaker 04:
That's not what happened.

[00:28:26] Speaker 04:
And it was precluded by the trust instrument, which said that it shall not be, the asset shall not be dispersed to the aunt, to Helene, but shall be put in a to-be-formed rollover trust that happened to have the same name as her own prior trust.

[00:28:45] Speaker 04:
And the trial court confused that completely.

[00:28:49] Speaker 04:
As a side note, last counsel's argument

[00:28:55] Speaker 04:
contains, really, arguments that were never made in their responsive brief.

[00:29:01] Speaker 04:
They're being made now for the first time responding here at the podium to what is in our reply brief.

[00:29:09] Speaker 04:
I think that's inappropriate.

[00:29:11] Speaker 04:
Going back now to the Wallace, that's the lawyer who did the motion to sanctify the deathbed deeds.

[00:29:25] Speaker 04:
There is a suggestion that there was no evidence, just conclusions, no factual allegations that weren't conclusory.

[00:29:46] Speaker 06:
That's not true.

[00:29:47] Speaker 06:
Isn't the claim, though, against the lawyer, and do you agree it's an aiding and abetting claim?

[00:29:56] Speaker 04:
Yes, but.

[00:29:58] Speaker 04:
What's the but?

[00:29:59] Speaker 04:
Well, there's two pieces to the but.

[00:30:02] Speaker 04:
The first piece to the but is this circuit has not decided whether there is or is not aiding and abetting liability under the RICO statute.

[00:30:13] Speaker 04:
Many district courts seem to think that because of the Central Bank of Denver case, there isn't.

[00:30:18] Speaker 04:
But that case involves aiding and abetting under 10B, not under RICO.

[00:30:27] Speaker 04:
Each time an implied cause of action issue arises, it becomes a question of congressional intent under that statute.

[00:30:37] Speaker 04:
And that's never been decided in this circuit.

[00:30:40] Speaker 04:
Number two, there are conspiracy allegations.

[00:30:44] Speaker 04:
And ever since 1997, with the Salinas decision in the Supreme Court, it's crystal clear that

[00:30:53] Speaker 04:
There is no need for actual operation or participation for conspiracy liability.

[00:31:03] Speaker 04:
What's required is that the defendant facilitated the conspiracy and there is no space between facilitation and aiding and abetting, just different words.

[00:31:15] Speaker 04:
It means the same thing.

[00:31:16] Speaker 05:
All right, Council, it looks like you're out of your rebuttal time.

[00:31:19] Speaker 05:
Did my colleagues have more questions?

[00:31:21] Speaker 05:
All right, well, thank you very much to both sides.

[00:31:24] Speaker 05:
This case will be submitted as of today.