Plaintiff'S/Cross-Defendants' Motion In Limine #3 To Exclude Declaration of Marilyn Leal From Evidence

Motion

Cal. Super. - 1st Dist.September 27, 2016

© 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Basil Plastiras, SBN 69283 Mihir Desai, SBN 315998 Plastiras & Terrizzi, a Prof. Corp. 24 Professional Center Parkway, Suite 150 San Rafael CA 94903 Telephone: (415) 472-8100 Facsimile: (415) 472-8110 Attorneys for Plaintiff and Cross-D efendant SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO PAUL L.THIBEAULT, as sole trustee of the Paul L. Thibeault and Ann Leal Thibeault Revocable Trust, Bypass Trust, Case No. CGC-16-554534 PLAINTIFF’S/CROSS- DEFENDANTS’ MOTION IN LIMINE #3TO EXCLUDE DECLARATION OF MARILYN LEAL FROM EVIDENCE Plaintiff VS. ) ) ) ) ) ) | PATRICIA A.DARK and MARY ) CONNOLLY, co-trustees of the Amended ) and Restated Marilyn Leal Family Trust; ) JOSEPH ANDREW HILDULA, ) individually; MORGAN GRACE ) HILDULA, individually ) ) ) ) ) ) ) ) Trial Date: August 13, 2018 Defendants. AND RELATED CROSS ACTION 1. INTRODUCTION/STATEMENT OF FACTS A declarant's statement of memory or belief is not admissible under § 1250 to prove an pre-existing fact remembered or believed. [Ev.C. § 1250(b)] D.Hearsay Exceptions, Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-D. §1250(b) states: This section does not make admissible 1 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o evidence of a statement of memory or belief to prove the fact remembered or believed.” If such evidence (the statement of memory) were admissible to show the fact remembered or believed actually occurred, any statement narrating a past event would, “by a process ofcircuitous reasoning,” be admissible to prove the event occurred. [See Ev.C. § 1250, Comment] D.Hearsay Exceptions, Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-D. A statement expressing the declarant's timely existing mental or physical state—including a statement of “intent, plan, motive, design, mental feeling, pain or bodily health”—is admissible where such mental or physical state is itself inissue. [Ev.C. § 1250(a)(1); Benwell v. Dean (1967) 249 CA 2d 345, 350-351, 57 CR 394, 399; Foss v. Anthony Industries (1983) 139 CA 3d 794, 800, 189 CR 31, 35 D.Hearsay Exceptions, Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-D. State of mind evidence is admissible under § 1250(a)(2) only to prove the declarant's conduct in conformity with the statement. All of Plaintiff’s statements that purportedly fall under the hearsay exception for state of mind,in actuality fall under exemptions from the state of mind exception that are excluded, as discussed below. I. THE STATE OF MIND EXCEPTION HEARSAY P CANNOT BE USED TO PROVE THAT PRIOR CONDUCT OCCURRED, OR THATANYALLEGEDCONDUCTPRIOR TO THE STATEMENTCAUSEDA STATE OF MIND TO EXIST In this case, the 2016 statements regarding Leal’s “state of mind”,e.g. lacking knowledge of numerous material facts in 2014,is a poor attemptto assert what caused the state of mind and the opportunity to construct “facts”(i.e. that Ann and/or Paul withheld material facts from Marilyn Leal in 2014). Itis undisputed that the state of mind hearsay exception cannot be used to prove that alleged misconduct occurred. (Kincaid v. Kincaid (2011) 197 CA 4th 75, 89-90, 127 CR 3d D.Hearsay Exceptions, Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-D) Equally undisputed is that 2 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o a statement expressing the declarant's then-existing mental or physical state—including a statement of “intent, plan, motive, design, mental feeling, pain or bodily health”—is admissible where such mental or physical state is itself in issue. [Ev.C. § 1250(a)(1); Benwell v. Dean (1967) 249 CA 2d 345, 350-351, 57 CR 394, 399; Foss v. Anthony Industries (1983) 139 CA 3d 794, 800, 189 CR 31,33). State of mind declarations cannot give the reason for the state of mind. “[T]he state-of- mind exception does not permit the witness to relate any of the declarant's statements as to why he held the particular state of mind, or what he might have believed (or concluded) that would have induced the state of mind.” (U nited States v. Cohen (5th Cir. 1980) 631 F2d 1223, 1225 (emphasis added); McInnis v. Fairfield Communities, Inc. (10th Cir. 2006) 458 F3d 1129, 1143. More importantly, as in E state of Anderson, 185 Cal. 700, 198 Pac. 407 (1921), a testatrix, where there is a lapse of time between the cause of the state of mind and the declaration of the state of mind, the statement is not admissible even to prove state of mind. In this case, after the execution of a will, the testatrix declared, in effect, that the will had been made at an aunt's (prior) request; this statement was held to be inadmissible hearsay “because it was merely a declaration as to a past event and was not indicative of the condition of mind of the testatrix at the time she made it (the statement)” 185 Cal. at 720, 198 Pac. at 415 (emphasis added). This exclusion is necessary to prevent untrustworthy evidence offered long after the events in question, perhaps under EC §1252. Untrustworthy after-the-fact state of mind declarations could be freely created to attribute whatever state of mind chosen to long ago events. (See FRE 803, Adv. Comm. Notes; United States v. Cardascia (2nd Cir. 1991) 951 F2d 474, 487; United States v. Samaniego (11th Cir. 2003) 345 F3d 1280, 1283 (discussed at 1 3 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o 8:2440)). Therefore, any instance describing her “intent, plan or motive” of why she signed the Deed of Trustin 2014, or what was said to herat that time, is inadmissible to show what her state of mind was 15 months later when she executed the lawyer-written Declaration. If retroactive state of mind declarations were allowed, any declaration made after the events and after the alleged state of mind developed would provide the declarant the opportunity to consider their state of mind in light of subsequent events or subsequently developed theories. The hearsay exemption from the state of mind exception allows exclusion of untrustworthy statements due to the passage of time and the opportunity to fabricate upon reflection. The Plaintiff objects to the specific sections sought to be submitted into evidence by D efendants\Cross-Complainants as follows: Paragraph 5: Defendants contend that the statement regarding M arilyn’s perception that Ann could be “very persistent”is a thinly-veiled, ruse to try and establish alleged behavior of Ann that would support an elder abuse claim, after months or years of opportunity to reflect and 99 <6reconstruct. Similarly, the statements regarding her “trusting and loving” “state of mind” with regards to Ann is nothing more than a belated attempt to construct a factual scenario to establish trust, vulnerability and to create a fiduciary duty. Paragraph 6: Defendants argument regarding the statements in this paragraph can only be described as a misstatement of fact. They attempt to use a state of mind exception to prove the existence of a written reaffirmation under the guise of Marilyn Leal’s state of mind, when in fact, the law ofreaffirmation requires the reaffirming document to be addressed to the party asserting the reaffirmation. 4 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Defendants correctly admit that the alleged $100,000 debt,if it even exists, is comprised of “various loans,” each unrelated to the other and with their own timeline for the 2- yearstatute of limitations. Defendants even purport that one of the statements in Paragraph 6 shows her “state of mind as a victim of undue influence an having been ‘taken financial 299advantage of.” Her conclusion that she was “taken advantage of” is patently inadmissible. It doesn’t describe a state of mind, but the formation of a conclusion absent the supporting evidence and depriving Plaintiff of any opportunity to depose and investigate the basis of this radical conclusion: “Ann ...(took)...financial advantage of me through undue influence, forgery and fraud”. Marilyn had an attorney in the family (Patricia Dark) readily carefully construct her law yer-written declaration to bolster claims they would subsequently bring in then-anticipated litigation. Paragraph 7: Defendants’ 1 sentence response to comprise of the “reasons discussed” to claim a state of mind exception for this entire paragraph, which simply attempts to construct facts of the existence of the $100,000 debt simply by Marilyn saying she was “aware” that the debt existed, that she “knowingly loaned Ann”certain amounts. This language could never be attributed to the Declarant, but was boldly and vaguely, written by an attorney. Oddly, Marilyn’s Declaration neverspecifically relates the language commonly used in declarations actually written by the Declarant, such as “on or around this date, Ann and I sat down, Ann asked for a loan, and we agreed that over the next few years, | would pay for her living expenses and she c¢would reimburse me when .... “. She never says “I remember that each and every of these expenses were Ann’s”, but cleverly and lawyerly, identifies the alleged specific items comprising this “loan” under the guise of “I demand...” rather than “Each and every one of these items was a loan made to Ann for her benefit...pursuant to our loan agreement. ..”. 5 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Paragraph 8: Similar to Paragraph 7, this paragraph attempts to construct the “fact” (i.e. a prohibited conclusion) that Ann took advantage of Marilyn’s trust in her. This construction is two-fold: 1) constructing that Ann engaged in conduct that took advantage of Marilyn; and 2) constructing facts of a trusting relationship to establish a purported fiduciary relationship. Paragraph 9: Similar to Paragraph 8, Defendants attempt to construct facts by framing them as state of mind. W hile she may or may not have recalled electronic transfers made years before, she doesn’t even specifically attribute those transfers to any specific daughter, or identify how it might have been Ann. She merely references them having been made. Paragraph 10: “Ann reaffirmed this debt to me at page 3, item 14 of her income and expense declaration signed by her under.....” is her opinion and conclusion (neither of which is state of mind) of a reaffirmation. She does even say that Ann delivered this to her, that she knew about it while Ann was alive, when she first saw it, how she acquired it, etc. etc. This is lawyer language cleverly written to circumvent the rules of law requiring such facts. Paragraph 14: The relevance of a 2001 loan to Ann and her then husband Scot Hildula deserves, at a minimum, some explanation. Paragraph 17: Marilyn claims that her motivation for agreementto the refinance was that “I could reduce my monthly payments by refinancing...” is blatantly written by someone other than Marilyn Leal, as Marilyn indisputably paid the exact same amount ($1550\month) for nearly 2 years after this refinance that she did before the refinance, without question or complaint. Even the Dark sisters, for at least three months after that, paid this amount each month, until they refused, claiming inequitably that the entire loan balance was Paul’s. At some point, one has to ask how incredulous the Court has to be before disallowing such patent, after-the-fact, falsehoods. 6 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Paragraph 19: The described state of mind in this paragraph is not only insufficiently contemporaneous with the statements declared, but also attempts to be offered to assert the truth of the actions causing the then-state of mind. There is written confirmation from M ary that Paul did not say this but that her motherinterpreted it that way. Witness Candy Williams, a lifetime friend of Patricia Dark and a cousin by marriage, confirms this. Paragraph 20: There is no reference to state of mind in this paragraph; itis simply a demand, written in a lawyerly fashion as if in the conclusion of a complaint. It attempts to construct facts regarding debts owed to Marilyn, while, it doesn’t go to her state of mind, noris her state of mind as to what she is entitled determinative or even relevant. Paragraph 23: Lack of knowledge is not a state of mind and this paragraph merely attempts to attribute “other payments with which I am not familiar...” to Ann. If, at this state of trial, they don’t have first-hand evidence that these are Ann’s expenses, or part of any loan,it should be excluded as more prejudicial than probative. Marilyn cannot use speculation of alleged fraudulent and deceitful actions in an effort to lay groundwork for the elder abuse claim. Paragraph 24: This is a repeat of Paragraph 17. It pertains more to Marilyn’s speculations as to Paul and Ann’s state of mind than her own. It is also argumentative, attempting to mind-read her daughter and son-in-law, claiming they “hid these facts from me” “concealed...or suppressed” facts, rather than “they did not disclose these facts”. Notonly is this section attempting to construct facts of Paul and Ann’s actions inducing Marilyn to sign the 2014 Refinance, but it is not contemporaneous with the time period discussed and thus cannot fail under the state of mind exception. 7 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o Paragraph 25: Similar to 24, the statements contained in attempts to divine motivations of others and to construct facts; itis not contemporaneous with the time period of when the declarant had that state of mind. Paragraph 33: This declaration, without any substantive facts, concludes that Ann’s conduct met the legal standard for “undue influence”, which declaration is written some 18 months after the events in question (the 2014 refinance). It is not contemporaneous with the time period in question. Furthermore,this statement pertains to Marilyn “suffering” financial damages and has nothing to due with herstate of mind. Paragraph 37: First, it proves her inability to even identify or calculate the “precise amounts” involved in this loan, and further just identifies the relief sought, rather than relate her state of mind. I11.FOR STATEMENTS TO FALL UNDER THE STATE OF MIND EXCEPTION THEY MUST BE MADE CONTEMPORANEOUSLY RATHER THAN WEEKS, MONTHS OR YEARS LATER T he statement must be contemporaneous with the mental state sought to be proven. I.e., the statement must indicate the speaker's then-existing, not prior, state of mind. (United States v. Barraza (8th Cir. 2009) 576 F3d 798, 805—victim's statements to friend and journal entry that she intended to take trip to M exico with D made one day before she left were admissible under “state of mind” exception; U nited States v. Carter (7th Cir. 1990) 910 F2d 1524, 1530— defendant's statement to his mother as to why he confessed one hour earlier not sufficiently contemporaneous; but see Wagner v. County of Maricopa (9th Cir. 2013) 747 F3d 1048, 1052- 1053—statements made days after event, including that declarant believed he had been raped, were admissible to prove declarant's current “mental feeling,” therefore satisfying any contemporaneity requirement). T he statements must be forward looking. ((Shepard v. United 8 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o States (1933) 290 US 96, 104-106, 54 S.Ct. 22, 26)(Statements not permitted under hearsay exception because “the testimony. ..faced backward and not forward ... What is even more important,it spoke to a past act, and even more than that, to an act by someone not the speaker.”). Here, the statements were made far after the time periods Marilyn Leal’s statements describe her purported state of mind for: Statements were made 8 months after Marilyn Leal discovered the alleged fraud and deceit regarding the refinance and 15 months after she signed the 2014 Loan Documents. This is precisely the type of statements regarding state of mind that are precluded from the exception to prevent fabrication of statements to benefit parties in litigation. Paragraph 10: The statements in this paragraph are not contemporaneous with the time period it refers to. Paragraph 12: Marilyn’s statements cannot be admitted as they are not contemporaneous with the time of the described state of mind (at least 2 years prior to the declaration). Paragraph 14: M arilyn’s purported state of mind statements regarding her motivation for the 2001 Grant Deed are 15 years apart from the grant deed itself not contemporaneous. They also attempt to construct the fact that A nn requested the grant deed, mostlikely in an attempt to support the alleged elder abuse claim. Furthermore, uncertainty is not a state of mind and the statements regarding her uncertainty are undoubtedly an attempt to construct underlying facts that Ann didn’t disclose material facts to Marilyn in support of the alleged elder abuse claim. Paragraph 17: All the statements pertaining to the 2014 Refinance and Marilyn’s motivations or feelings regarding that time period are not sufficiently contemporaneous with the statements and cannot be included. It further attempts to construct Paragraph 27: The statements in this paragraph barely have a tenuous argument for state of mind and nonetheless the entire paragraph discusses state of mind that is not contemporaneous 9 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o with when the statements were made. Paragraph 29: T he statements in this paragraph barely have a tenuous argument for state of mind and nonetheless the entire paragraph discusses state of mind that is not contemporaneous with when the statements were made. Paragraph 32: All statements refer to alleged state of mind in 2014 which is too far removed to be considered contemporaneous. Furthermore, lack of knowledge is not a state of mind but rather a subvert attempt to construct facts regarding the elder abuse and breach of fiduciary duties claims. a. INORDER TO BE CONSIDERED TRUSTWORTHY, THERE MUST BE LITTLE OR NO TIME FOR REFLECTION BETWEEN THE MENTAL STATE DESCRIBED AND THE DATE OF THE DECLARATION It must be shown that the declarant had no time to reflect—i.e., no time to fabricate and perhaps misrepresent his or her thoughts. (U nited States v. Harvey (7th Cir. 1992) 959 F2d 1371, 1375—defendant's exculpatory statements more than 2 years after alleged fraud held inadmissible). This is a corollary to the contemporaneity requirement; the more time that elapses between the declaration and the period about which the declarant is commenting, the greater the chance for reflection or memory lapses. (U nited States v. Ponticelli, supra, 622 F2d at 991). IV.THE STATEMENT REGARDING THE STATE OF MIND ARE ONLY ADMISSIBLE WHEN THE “STATE OF MIND” ISRELEVANT TO AN ISSUE IN THE CASE The statements sought to be included under the state of mind exception must describe a state of mind that is relevant to an issue in the case and not simply that the statement is regarding something relevant to an issue in the case. V. STATEMENTS OF MEMORY OR BELIED TO PROVE THE FACT REMEMBERED OR BELIEVED ARE NOT PERMITTED The state of mind exception does not permit “a statement of memory or belief to prove the fact remembered or believed” (unless it relates to the execution or terms of the declarant's 10 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL © 0 0 d N o o u r B A O w N D R N O N N N N N D N N N M N N F P F FP F FR , FP , F P R , P R E c o ~ N O o o u l B A W w W O N F P O O V U 0 0 N O U U B A W w W N H o O o will). (FRE 803(3) (emphasis added)). Paragraph 12, Paragraph 14, and Paragraph 37 are all based on facts believed and notfirst hand knowledge. In addition, Paragraph 37’s is not contemporaneous with the time period it refers to. VI.CONCLUSIONS ARE INADMISSIBLE UNDER THE HEARSAY EXCEPTION FOR STATE OF MIND A conclusion is neither an act, condition nor event; it may or may not be based upon acts, conditions or events and may or may not “be founded on sound reason”; and the person who formed the conclusion may or may not be qualified to form ortestify to it. “Whether the conclusion is based upon observation of an act, condition or event or upon sound reason or whether the person forming itis qualified to form it and testify to it can only be established by the examination ofthat party under oath ...” [People v. Reyes, supra, 12 C3d at 503, 116 CR at 227 (emphasis added; internal quotes D.Hearsay Exceptions, Cal. Prac. Guide Civ. Trials & Ev. Ch. 8D-D. Paragraph 34: These statements contain no state of mind declaration and solely assert conclusions that Ann committed all the claims in the causes of action in this action. VII. EVEN IF THE STATEMENTS WERE FACTUALLY SUBSTANTIVE ANDRELEVANT AND CONTEMPORANEOUS THISEVIDENCE FAILSTO MEET THE REQUIREMENTS OF EVIDENCE CODES 352 AND 1252 In the way that the declaration was carefully constructed to support and bolster all of the anticipated claims the Dark Sisters were going to bring in litigation, the prejudicial effect of admitting any one of the highly biased and suggestive greatly outweighs any ostensible probative value. PLASTIRAS & TERRIZZI, APC Basil Plastiras Attorneys for Plaintiffs/Cross-D efendants 11 PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL Pl as ti ra s & Te rr iz zi 2 4 Pr of es si on al Ce nt er P a r k w a y S u i t e 1 5 0 S a n Ra fa el , C A 9 4 9 0 3 (4 15 ) 4 7 2 - 8 1 0 0 O O ©O © 0 0 N N O O o a A h W N = N N N D N D N D N D D N N N D N 2 n d a m d a a a a a a a a a = Bo . D D O R n G a s S E D e S B T S Thibeault v. Dark San Francisco County Superior Court Case No. CGC-16-554534 PROOF OF SERVICE (CCP SECTION 1013a - 2015) I am over the age of eighteen years and not a party to the within action. I am employed in the City of San Rafael, County of Marin, California and my business address is 24 Professional Center Parkway, Suite 150, San Rafael, CA 94903 On August 20, 2018, I served a true copy of: PLAINTIFF’S/CROSS-DEFENDANTS’ MOTION IN LIMINE #3 TO EXCLUDE DECLARATION OF MARILYN LEAL FROM EVIDENCE on the interested parties in this action by placing a true copy thereof in a sealed envelope addressed as follows: Emilie M. Calhoun Fiduciary Law Attorneys 1109 Vicente Street, Suite 104 San Francisco, CA 94116 Fax No. (415) 779-8765 Email: Ecalhoun@fiduciary-law.com [Attorneysfor defendants and cross- complainants Patricia A. Dark and Mary Connolly, co-trustees ofthe Amended and Restated Marilyn Leal Family Trust] Edward Koplowitz 465 California Street, #222 San Francisco, CA 94104 Fax No. (415) 433-1917 Email: eakatt@aol.com Morgan Grace Hildula 1944 19" Avenue San Francisco, CA 94116 Email: morgan.hildula@gmail.com [Defendant in pro per] [Attorneysfor defendant Joseph Hildula] /XX / (OVERNIGHT DELIVERY) I deposited each such sealed envelope in a box or other facility regularly maintained by an express service carrier for overnight delivery, or delivered to a courier or driver authorized by said express service carrier to receive the above-designated documents, together with a signed copy of this declaration, in an envelope designated by the said express service carrier, with deliver fees paid or provided for, with instructions that it be delivered the next business day. I also caused a true and correct copy to be transmitted by facsimile to the following: J. Michael Phelps Law Offices of J. Michael Phelps P. O. Box 1457 Mill Valley, CA 94942-1457 Fax No. (855) 853-9921 Email: phelps@alumni.princeton.edu [Attorneys for defendants and cross- PROOF OF SERVICE Pl as ti ra s & Te rr iz zi 2 4 Pr of es si on al Ce nt er P a r k w a y Su it e 1 5 0 S a n Ra fa el , C A 9 4 9 0 3 (4 15 ) 47 2- 81 00 o O © 0 0 N N o O O o A W O N a B R N R R K R R D N N C E R e l e Ge l a i fe l ee l ml d el e C e OO : ax k C O d O R E CG D IN E EN E E Y O 0 0 , a a OD L A O a s E Y IN D = complainants Patricia A. Dark and Mary Connolly, co-trustees of the Amended and Restated Marilyn Leal Family Trust and Patricia A. Dark, etc. [Defendant Doe 1] and Mary Connolly, etc. [Defendant Doe 2]] /XX_/ (BY E-MAIL) T also caused the said document(s) to be transmitted by e-mail to each of the parties indicated above. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on August 18, 2018 in the City of San Rafael, California. Fel n REi ]¢anArr2 PROOF OF SERVICE