VALLI, MARRIAGE OF

Respondent, Randy Valli, Answer to Petition for Review

Cal.July 15, 2011

Supreme Court Case No. 8193990 IN THE SUPREME COURTOF THE STATE OF CALIFORNIA In re Marriage of FRANKIE and RANDY VALLI: FRANKIE VALLI, | SUPREME COURT Petitioner and Respondent, FI I f=D JUL 15 201 RANDY VALLI, Frederick «, Ohirich Cierk Respondent and Appellant. CRO 9.250) ANSWERTO PETITION FOR REVIEW After a Published Decision By the Court of Appeal, Second Appellate District, Division Five, Case No. B222435 Los Angeles Superior Court Case No. BD414038 The Honorable Mark Juhas Judge of the Superior Court JAFFE AND CLEMENS William S. Ryden (SBN 92895) Nancy Braden-Parker (SBN 207655) 433 North Camden Drive Suite 1000 Beverly Hills, California 90210 (310) 550-7477 Attorneys for Appellant RANDYVALLI Supreme Court Case No. $193990 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA In re Marriage of FRANKIE and RANDY VALLI: FRANKIE VALLI, Petitioner and Respondent, V. RANDY VALLI, Respondent and Appellant. ANSWER TO PETITION FOR REVIEW After a Published Decision By the Court of Appeal, Second Appellate District, Division Five, Case No. B222435 Los Angeles Superior Court Case No. BD414038 The Honorable Mark Juhas Judge of the Superior Court JAFFE AND CLEMENS William S. Ryden (SBN 92895) Nancy Braden-Parker (SBN 207655) 433 North Camden Drive Suite 1000 Beverly Hills, California 90210 (310) 550-7477 Attorneys for Appellant RANDY VALLI TABLE OF CONTENTS Page Number I. INTRODUCTION .........0.0 00.000 e cece eee eee, 1 Il. THERE ARE NO GROUNDSFOR SUPREME COURT REVIEW ... 00.20.00. 2 A. There is No Conflict among Lower Court Decisions ............00.0.000.0.0.000.00..... 2 B. No Important Unsettled Question of Law is Presented ...............0................. 4 IH. THE PETITION MISCHARACTERIZES THE COURT OF APPEAL OPINION, THE LAW, AND THE FACTS OF THIS CASE ...................... 10 IV. CONCLUSION ....0. 00.00.0000 cece eee, 13 CERTIFICATION |...00.ccece eee. 14 TABLE OF AUTHORITIES Page Number Cases In re Marriage ofBrooks & Robinson (2008) 169 Cal.App.4th 176, 186-187 Cal.Rptr.3d 624] ............0....0000. 4,5, 6, 13 In re Marriage ofHaines 33 Cal.App.4th at p. 296, 39 Cal.Rptr.2d at p. 786 [124 Cal.Rptr.3d 726] ...........0.000.. 9 In re Marriage ofHoltemann (2008) 166 Cal.App.4th 1166 [83 Cal.Rptr. 3d 385]...ccceens 3 In re Marriage ofLucas (1980) 27 Cal.3d 808 [166 Cal.Rptr. 853, 614 P.2d 285] ..........0.00..0.. 1, 4, 6, 7, 8 In re Marriage ofLund (2009) 174 Cal.App.4th 40 [90 Cal.Rptr.3d 84] 0.ccccece eee 3 In re Marriage ofRives (1982) 130 Cal.App. 3d 138, 162 [181 Cal.Rptr. 572] 2...cceee cence 13 In re Marriage ofSteinberger (2001) 91 Cal.App.4th 1449 [111 CalRptr.2d 521] 2...ceceeee 7 In re Marriage of Valli (2011) 195 Cal.App.4th 776, 784-787 [124 Cal.Rptr.3d 726] 2.02...2eeeee 5,9, 11, 12 Statutes Evidence Code § 662 ..... 0.0... ccc ccc cece eee nnes 1,6 Family Code § 721 00.0...occcece cence eee eeeaas 9 Family Code § 850) 0...e tce eee ee eeuaes 5 Family Code § 852) 6...ccceee ees 5, 11, 12 Family Code § 2581) 6...cccce cect eee eeeaaes 6 Probate Code § 5020 .. 0...cccect n cent eaes 3 26 U.S.C.A. § 2042 20cccece e ec ee eens 8 -ii- Page Number Rules California Rules of Court, Rule 8.204(c) ..........0.0. 0000. cee eee 14 California Rules of Court, Rule 8.500, subdivision (b) ............... 13 California Rules of Court, Rule 8.500, subdivision (c) .............. 10 Resources Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal. L. Revision CommonReports 205, 213-214 (1984) 2ccccee ete eeee 7 -ili- I. INTRODUCTION In rendering its decision, the Court ofAppealapplied the rulesetforth in Marriage ofLucas (1980) 27 Cal.3d 808 [166 Cal.Rptr. 853, 614 P.2d 285] (Lucas), that the affirmative act of specifying a form of ownership in the conveyance removes property acquired by a married person during marriage from the more general presumption of community property so that the more specific form of title presumption, now codified in Evidence Code §662, applies in characterizing the property. /d. at pp. 814-815. The Petition for Review misrepresents the state of the law. It does not cite Lucas and ignores the ruling. In applying the rule in Lucas, the Court of Appealcorrectly applied well-established law to a newset offacts and circumstancespresented by the Valli case. The Court of Appeal concludedthata life insurance policy on the life of petitioner and respondent, Frankie Valli (Frankie), naming respondent and appellant, Randy Valli (Randy) as both the policy owner and beneficiary is Randy’s separate property under the “form oftitle” presumption-a presumption which wasnot rebutted by Frankie. The Court of Appeal opinion was a specific application of the rule in Lucasto a narrow and very uniqueset of facts and circumstances. Frankie, who wasthe transacting spouse, unilaterally and with the assistanceofhis insurance agent and business manager, intentionally divested himselfofall indicia of ownership and made Randythe legal and beneficial ownerofthe policy from the inceptionoftitle. The claim in the Petition that “hundreds of thousandsofCalifornia spouseswill get a nasty surprise”is a fiction based on a false premise. This decision is not one of broad interest or effect. It is -|- unlikely to affect spouses other than possibly high net worth individuals who are trying to decreasethe valueoftheir taxableestate by deliberately divesting themselvesof all incidents of ownership in insurancepolicies to avoid taxes. As discussed below, Frankie seeks Supreme Court review by mischaracterizing the facts ofthis particular case, the decision of the Court of Appeal and the law. There is no conflict among the lower courts and no important unsettled question of law is at issue in this case. The case does not meetanyofthe othercriteria for granting reviewset forth in California Rules of Court, Rule 8.500 subdivision (b), and thus review should notbe granted. Frankie’s own disagreement with the Court of Appeal’s decision is not sufficient to warrant review. The well-reasoned unanimous opinion of the Court of Appeal, should stand. Il. THERE ARE NO GROUNDSFORSUPREMECOURTREVIEW A. There is No Conflict Among Lower Court Decisions The Petition for Review states incorrectly that the Court of Appeal decision “conflicts with virtually all published marital property casesin thelast 150 years of California history and is simply wrong.” ThePetition is simply wrong. The Court of Appeal opinionin this case is not in conflict with any of the decisionscited in the Petition or any other marital property cases. In fact this is the first published case to decide the narrow question presented. The Petition claims that the decision is in conflict with numerous California decisionsholding that where the premiumson a spouse’slife insurance policy are paid with community funds, the policy is community property. The Petition would have the Supreme Court review this case based on other cases with entirely different facts. In all of the purportedly conflicting cases, one -2- spouseis both the policyholderandthe insured. In the instant case, the insured spouseis also the transacting spouse who purposely divested himself ofall indicia of ownership and namedhis spouse as both owner and beneficiary. In addition,the cases cited in the Petition establish that when a policy is acquired with community funds, the uninsured spouse has a beneficial interest in half the proceeds of the policy that cannot be defeated by the insured spouse. This commonlawtuleis codified in Probate Code § 5020. The form oftitle presumptionprovides that the owneroflegaltitle to property is rebuttably presumed to be the owner of full beneficial title. The presumption would be rebutted where the insured holds legaltitle and the uninsured spouse holds some incidents of beneficial title, so the general presumption ofcommunity property would apply in those types of cases. That is not the situation here. In the instant case the insured spouse Frankie, purposely caused the uninsured spouse Randy,to be vested with both legal and equitabletitle to the policy whenthepolicy was taken out. The Court ofAppealdecision is entirely consistent with the cases cited in the Petition for Review. It is also consistent with California law as expressedin cases such as Jn re Marriage ofHoltemann (2008) 166 Cal.App.4th 1166 [83 Cal.Rptr.3d 385], and Jn re Marriage of Lund (2009) 174 Cal.App.4th 40 [94 Cal.Rptr.3d 84], which hold essentially that once the characterofproperty is deliberately established for one purpose, it is established for all purposes. The Court of Appeal reached the correct result in the Valli case based on the law andthefacts. Thereis no conflict between the challenged decision andthe decisions from other appellate districts regarding the applicability ofthe presumption of -3- title when married persons specify a form of ownership at the time of acquisition of property. See; Lucas, supra, 27 Cal.3d at pp. 814-815 [166 Cal.Rptr. 853, 614 P.2d 285]; In re Marriage ofBrooks & Robinson (2008) 169 Cal.App.4th 176, 186-187 [86 Cal.Rptr.3d 624] (Brooks). The Court of Appeal merely articulated the existing rule and then appliedit to the narrow and unique facts and circumstancesofthis case. B. No Important Unsettled Question of Law is Presented ThePetition does not present an important unsettled question oflaw. Frankie states that there are four issues for Supreme Court review, but none fairly characterizes the Court ofAppeal’s decision, the facts ofthe case or the law or warrants such review. Thefirst claimedissue is whetherthe recordtitle presumption applies to property acquired by spouses during marriage with community funds in the absence of any independent evidence that they intended that said property be characterized as the titled spouse’s separate property. That purported statement of an unsettled issue simply reveals a misunderstanding of settled law. The presumption oftitle is rebuttable by clear and convincing evidence ofacommon understandingto the contrary. As stated by this Court in Lucas: “The rule requiring an understanding or agreement comesinto play whenthe issue is whetherthe presumption arising from the form oftitle has been overcome.It is supported by sound policy considerations, and we decline to depart from it. Lucas, supra, 27 Cal.3d at p. 815 [166 Cal.Rptr. 853, 614 P.2d 285]. In this case, Frankie’s testimony supported the conclusion that the policy is Randy’s property. Furthermore, Frankie offered no evidenceto rebut -4- the title presumption, the alleged fiduciary duty issue or the alleged transmutation issue as noted in the opinion of the Court of Appeal. Jn re MarriageofValli (2011)195 Cal.App.4th 776, 784-787 [124 Cal.Rptr.3d 726] (Valli). The second purported issue is whether acquisition of property from a third party constitutes a transmutation triggering the writing requirements of Family Code §852. The Petition suggests that the Opinion will lead to perjured testimonyregardingoral agreementsor “pillow talk” to overcome the presumption of title because the opinion confines the definition of “transmutation”to transfers ofproperty between spousesandnotacquisitions from third parties. The Petition states: “Both Brooks and the Opinion recognizethat recordtitle can be overcome by clear and convincing evidence of an ‘oral agreement or understanding.’” This statement misrepresents both opinions. In fact, the word “oral” does not appear in either opinion except in a footnote in Valli quotinga statutory referenceto “oral stipulation ofthe parties in open court.” Valli, supra, 195 Cal.App.4th 776, 781, n.8 [124 Cal.Rptr.3d 726] (Valli). As set forth above, Valli is the first published opinion to apply the presumptionoftitle to the narrow and uniqueset of facts in this case. The melodramatic predictionsin the Petition are merely speculative. It is highly unlikely that a court wouldfind “pillow talk”to be the clear and convincing evidence needed to overcomethe presumptionoftitle. The Petition states correctly that Family Code §852 does not define “transmutation.” However, Family Code §850 gives married personsthe right to “transmute”property by agreement from separate property into community -5- property, from community property into separate property, or from separate property of one spouseto separate property of the other. This implies that, in order for a transmutation to occur, the property must already have been characterized as community or separate. In a transaction with a third party, property of a third party becomes property of one or both of the spouses. Characterization occursat the time ofacquisition. Wherethereis documentary evidenceofhowtitle is taken,eitherjointly or separately, presumptionsarise regardingthe characterofthe property. Wherethereis written evidencethat title is taken separately, the Evidence Code section 662 presumption applies to make the property presumptively separate. Lucas, supra, 27 Cal.3d at p. 818 [614 P.2d 285, 166 Cal.Rptr. 853]; Brooks, supra, 169 Cal.App.4th atp. 190 [86 Cal.Rptr.3d 624]. Whenthere is written evidencethattitle is taken jointly, the Family Code section 258 Ipresumption applies to makethe property presumptively community.’ In either case, the source of funds for the acquisition is irrelevantunless the presumption is rebutted. ' Family Code section 258 1provides: “For the purpose of division of property on dissolution of marriage or legal separation of the parties, property acquired by the parties during marriage in joint form, including property held in tenancy in common,joint tenancy,or tenancybythe entirety, or as community property, is presumed to be community property. This presumption is a presumption affecting the burden ofproof and may be rebutted by either of the following: (a) A clear statement in the deed or other documentary evidenceoftitle by which the property is acquired that the property is separate property and not community property. (b) Proof that the parties have madea written agreementthat the property is separate property.” The legislative history of section 852 as set forth Jn re Marriage of Steinberger (2001) 91 Cal-App.4th 1449 [111 Cal.Rptr.2d 521], and quoted in the Petition states that the section was enactedto require a writing to evidence “transfer of property between spouses.” “The convenienceandpractice of informality recognized by the rule permitting oral transmutations mustbe balancedagainst the dangeroffraud andincreased litigation causedbyit. The public expects there to be formality and written documentationofreal property transactions, just as it expects there to be formality in dealings with personalproperty involving documentary evidence oftitle, such as automobiles, bank accounts, and shares ofstock. Mostpeople would find an oral transfer of such property, even between spouses, to be suspect and probably fraudulent, either as to creditors or between each other. Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal. L. Revision Common Reports 205, 213-214 (1984).” Id. at p.1465. It is precisely becausethere is formality and written documentation of the form of ownership whentitle is conveyed by a third party that the presumption oftitle applies to transactions with third parties. As stated in Lucas, “where there is no written indication of ownershipinterests as between the spouses,the general presumption ofcommunityproperty maybe overcome simplybytracing the source of funds used to acquire the property to separate property.” Lucas, supra, 27 Cal.3d 808, 815 [166 Cal.Rptr. 853, 614 P.2d 285]. The importance ofthis question is further diminished by the fact that the decision is unlikely to affect spouses other than possibly high net worth individuals who deliberately divest themselves ofall indicia of ownership in insurancepolicies to prevent the proceeds from being included in valuingtheir estate.’ Thelast two proffered issues are related to Frankie’s contention that the fiduciary duties between spouses and the presumption of undue influence apply not only to transactions between spouses but also to transactions between a spouse anda third party. This case does not presentthat issue for review because the Court ofAppeal expressly declined to answerthe question stating: “We need not resolve this issue, however, because Randy prevails undereither theory. { If Randy's theory is correct, she prevails because the acquisition of the policy resulted from a third party transaction and not from a transaction between spouses. If Frankie's theory is correct, Randystill prevails * 26 U.S.C.A.§ 2042 providesthat the value ofthe grossestate shall include the value of all property receivable by the executor as insurance under policies on the life of the decedent receivable by the executor as insurance and receivable by beneficiaries “‘as insurance underpolicies on the life of the decedent with respect to which the decedentpossessedat his death any of the incidents of ownership, exercisable either alone or in conjunction with any other person.” becausethe third party transactionat issue was between Frankie and a third party and not between Randy and a third party. Randy could not have owed a fiduciary duty to Frankie in a transaction in which she did not participate. Underthe theory that the fiduciary duties in section 72] apply to transactions between a spouse anda third party, the fiduciary duty would apply only whenthe transacting spousegains an advantage over the spouse whois not a party to the transaction. (See In re Marriage of Haines, supra, 33 Cal.App.4th at p. 296, 39 Cal.Rptr.2d 673.) No such advantage wasobtained here.” Valli, supra, 195 Cal.App.4th at p. 786 [124 Cal.Rptr.3d 726]. ThePetition states that “the Opinion found that Randydid notbenefit andthusthe presumptionofundueinfluence was not triggered.” The Petition mischaracterizes the Court of Appeal decision. The Court of Appeal opinion actually states that the presumption of undue influence was not triggered becausethetransacting spouse,i.e. Frankie, did not gain an advantageoverthe spouse whois nota party to the transaction with the third party, i.e. Randy. Valli, supra, 195 Cal.App.4th at p. 786 [124 Cal.Rptr.3d 726]. ThePetition asserts that a fiduciary obligation applies to the spouse who had no dealings with the third party in the particular transaction in issue. That does not make any sense. However,in the Valli case, the Court ofAppeal held that “fevenif the fiduciary duties in [Family Code] section 721 applyto transactions between a spouse anda thirdparty, the presumption ofundue influence wasrebutted by the evidenceattrial.” Jbid. So the decision would remain the same under either theory. lil. THE PETITION MISCHARACTERIZES THE COURT OF APPEAL OPINION, THE LAW, AND THE FACTS OF THIS CASE. Frankie did not petition for rehearing in the Court of Appeal. Nevertheless, despite the limitations of California Rules of Court, Rule 8.500 subdivision (c), the Petition includes a lengthy “Statement of Facts.” The statement not only ranges far beyond the Court of Appeal opinion’s statement of facts and misstates the record in many instances. The Petition also mischaracterizes the Court ofAppeal opinion and reaches conclusionsthat are not supported by the record. Some examplesareas follows. On Page 2 ofthe Petition, the Petition states that “During marriage, Randy suggested to Frankie (the husband) thatthey obtain the policy when he wasin the hospital....” Also on Page 2, the Petition states: “The only evidence presented about the acquisition of the policy was that Frankie agreed with Randy’s suggestion to obtain life insurance. On Page 20,the Petition states: “She requested that he buy the policy.” On Page 28,the Petition states: “The policy was her idea andsheparticipated in the process of obtainingit.” All of these statements misrepresentthe record. The Appellate Court Opinion was clear that Randy and Frankie discussed acquiring life insurance, but there is no evidence that Randy participatedin the acquisition ofthe policy or suggestedthatit be placed in her -10- name.In fact, she was informedby Frankieand his business managerthat they were going to makeher the owner. The Appellate Court stated: “Dennis Gilbert, a life insurance agent, testified that his companysold the policy to the Vallis. According to Gilbert, Randy is the owner and beneficiary of the policy. Randy testified that Frankie and Barry Siegel, Frankie's business manager, told her that “they were going to make [her] the owner,” and that she understood that she would be the beneficiary. Frankietestified that he “put everything in Randy's name, figuring she would take care and give to the kids what they might have coming.” Jn re Marriage of Valli, supra, 195 Cal.App.4th 776, 780 [124 Cal.Rptr.3d 726, 729]. On Page4 of the Petition, the Petition states that the Court of Appeal held that “regardless ofany writing transmuting the property from community into Randy’s separate property, the mere act of taking title in her name removed it from the community property presumption and the protection of Family Code § 852 resulting in the unintended gift from Frankie to Randy of $365,032 in cash value plus $3.75 million in death benefits. On page 16, the Petition states: “Per the Opinion, she receives $365,032 in cash value plus $3.75 million in death benefits...” These statements mischaracterize the opinion of the Court of Appeal. The Court of Appeal recognizedthat to the extent the community paid premiumsafter the acquisition of the policy which increasedthe cash value, that would giverise to a possible reimbursementclaim. The Court ofAppeal -11- stated: “Upon remand,weleaveto the trial court any reallocation ofassets or award of reimbursement in light of our holding.” Valli, supra, 195 Cal.App.4th 776, 787 [124 Cal.Rptr.3d 726, 735). On Page 5, the Petition states: “If this case stands, hundreds of thousands of California spouses will get a nasty surprise whentheylearn that the policies on which community property has been paying the premiumsfor years are in fact the named owner’s separate property.” On Page 15, the Petition states: “This conflicts with virtually all published marital property casesin the last 150 years of California history and is simply wrong.” Asset forth above,this is a fiction based on a false premise andis not supported anywhere in either the trial record, the appellate record or the law. Thereis . nothingin the trial record, the appellate record or existing case law to support this claim. Randy’s Reply Briefdistinguished all ofthe cases which werefirst cited by Frankie in his Appellate Briefand are nowcited again in the Petition. On Page6, the Petition states: “By holding that Section 852's writing requirementdoes not applyto assets acquired from third parties, community funds used to acquire a new asset are suddenly transmuted into separate property...” The Court of Appeal did not hold that the premiums are Randy’s separate property. The case was remandedbackto thetrial court to determine whether or not the community is entitled to reimbursement. The inference from the argumentaboveisthattitle should be determined based on premium payments madeaftertitle has already beenestablished. That does not make sense. -12- OnPage6,the Petition states: “Pursuantto this Opinion,a self-serving spouse can create separate property by arranging for newly acquired property to betitled in his or her name.” Not true. “When the spouse whois not the recordtitle holder was unawarethat title was taken solely in the name of the other spouse, the form oftitle presumption does not apply.” In re Marriage ofBrooks, supra, 169 Cal.App.4th at p. 192 [86 Cal.Rptr.3d 624, 637],citing In re Marriage ofRives (1982) 130 Cal.App.3d 138, 162, {181 Cal.Rptr. 572]. IV. CONCLUSION The Petition exaggerates and misstates the facts in the record and mischaracterizes the Court of Appeal’s opinion to arguably convince the Supreme Court to review this matter. As set forth above, review is not necessary to secure the uniformity of the law or to decide an important question of law. The case does not meetanyofthe othercriteria for granting review set forth in California Rules of Court, Rule 8.500 subdivision (b) Accordingly, the Petition for review should be denied. Respectfully submitted, Dated: July 14, 2011 JAFFE AND CLEMENS By: WY ken. WILLIAM S. RYBEN 7 NANCY BRADEN-PARKER Attorneys for Appellant, Randy Valli -13- CERTIFICATION Pursuant to California Rules ofCourt, Rule 8.204(c), I, Nancy Braden- Parker, certify that WordPerfect X3, the computer program usedto preparethis Answerto Petition for Review,reflects that this Answer contains 3633 words. ‘aarey-Lradentoe Nancy Brgden-Parker -14- PROOF OF SERVICE STATE OF CALIFORNIA ) ) COUNTY OF LOS ANGELES _ ) [am employedin the County ofLos Angeles, State of California. Iam over the age of 18 and not a party to the within action. Mybusinessaddress is 433 North Camden Drive, Suite 1000, Beverly Hills, California 90210. OnJuly 14, 2011, I served the foregoing documentdescribedas: ANSWER TO PETITIONFOR REVIEW on the interestedparties in this action by placinga true copy thereof enclosed in a sealed envelopes addressed as follows: Clerk of the Court (Via Federal Express) California Supreme Court 350 McAllister Street San Francisco, California 94102-4797 (Original and 13 copies ofAnswerto Petition For Review) Clerk of the Court (Via Hand Delivery) Court of Appeal 300 So. Spring Street, 2° Floor North Tower Los Angeles, CA 90013-1230 Honorable Mark A. Juhas (Via U.S. Mail) Los Angeles County Superior Court 111 North Hill Street, Department 67 Los Angeles, California 90012 Christopher C. Melcher, Esq. (Via U.S. Mail) Walzer & Melcher, LLP 21700 Oxnard Street, Suite 2080 WoodlandHills, CA 91367 (Attorneysfor Petitioner/Respondent, Frankie Valli) Garrett C. Dailey, Esq. (Via U.S. Mail) 2915 McClure Street Oakland, California 94609 (Attorneysfor Petitioner/Respondent, Frankie Valli) ¥_ BY FEDERAL EXPRESS - OVERNIGHT DELIVERY I enclosed the documents in sealed envelopes provided by Federal Express, and addressed to the above-namedpersonsat the addresseslisted. I placed the envelopes for collection and overnight delivery. I am “readily familiar" with the firm's practice of collection and processing Federal Express envelopes. Underthat practice the envelopes would beplaced in the regularly utilized drop box of Federal Express on that same day, at Beverly Hills, California, in the ordinary course of business. ¥__ BY PERSONALSERVICE I caused such envelope(s) to be delivered by handto the office(s) ofthe addressee(s) noted above. v¥_BYU.S. MAIL I deposited such envelopein the mail at Beverly Hills, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar" with the firm's practice of collection and processing correspondence for mailing. Underthat practice it would be deposited with U.S. Postal service on that same day with postage thereon fully prepaid at Beverly Hills, California in the ordinary course ofbusiness. I am aware that on motionofthe party served, service is presumedinvalid ifpostal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on July 14, 2011, at Beverly Hills, California. Ofenecs . COLLEEN LEMOINE