DUKE, ESTATE OF

Appellants’ Reply to Answer to Petition for Review

Cal.February 14, 2012

No. 8199435 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN THE MATTER OF THE ESTATE OF DUKE ROBERTB. RADIN and SEYMOUR RADIN Plaintiffs and Respondents, VS. FE3 14 2012 JEWISH NATIONAL FUND and CITY OF HOPE, AT meh geile FF Me eee bse Pipe oy (tbare eee ee e a. Defendants and Appellants. ee} California Court of Appeal, Second District, Division Four 2nd Civil No. B227954 Appeal from the Los Angeles County Superior Court Hon. Mitchell Beckloff, Los Angeles County Superior Court Case No. BP108971 REPLY IN SUPPORT OF PETITION FOR REVIEW OLDMAN, COLLEY, SALLUS, GOLD, RODRIGUEZ, HORII, CHOI & | BIRNBERG , & COLEMAN,LLP CAFFERATA, LLP Susan Cooley, SBN 93664 Reynolds Cafferata, SBN 160484 16133 Ventura Boulevard, Penthouse A 777 South Figueroa Street, Suite 2150 Encino, California 91436-2408 Los Angeles, California 90017 (818) 986-8080 / Fax (213) 892-7700 / Fax (213) 892-7777 BENEDON & SERLIN GREINES, MARTIN, STEIN & Gerald Serlin, SBN 123421 RICHLAND LLP Douglas Benedon, SBN 110197 Robin Meadow, SBN 51126 21700 Oxnard Street, Suite 1290 Robert A. Olson, SBN 109374 Woodland Hills, California 91367 Jeffrey E. Raskin, SBN 223608 (818) 340-1950 / Fax (818) 340-1990 5900 Wilshire Boulevard, 12th Floor Los Angeles, California 90036 (310) 859-7811 / Fax (310) 276-5261 Attorneys for Claimants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE No. S199435 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA IN THE MATTER OF THE ESTATE OF DUKE ROBERT B. RADIN and SEYMOUR RADIN Plaintiffs and Respondents, VS. JEWISH NATIONAL FUND and CITY OF HOPE, Defendants and Appellants. California Court of Appeal, Second District, Division Four 2nd Civil No. B227954 Appeal from the Los Angeles County Superior Court Hon. Mitchell Beckloff, Los Angeles County Superior Court Case No. BP108971 REPLY IN SUPPORT OF PETITION FOR REVIEW OLDMAN, COLLEY, SALLUS, GOLD, RODRIGUEZ, HORII, CHOI & BIRNBERG, & COLEMAN, LLP CAFFERATA, LLP Susan Cooley, SBN 93664 Reynolds Cafferata, SBN 160484 16133 Ventura Boulevard, Penthouse A 777 South Figueroa Street, Suite 2150 Encino, California 91436-2408 Los Angeles, California 90017 (818) 986-8080 / Fax (213) 892-7700 / Fax (213) 892-7777 BENEDON & SERLIN GREINES, MARTIN, STEIN & Gerald Serlin, SBN 123421 RICHLAND LLP Douglas Benedon, SBN 110197 Robin Meadow, SBN 51126 21700 OxnardStreet, Suite 1290 Robert A. Olson, SBN 109374 Woodland Hills, California 91367 Jeffrey E. Raskin, SBN 223608 (818) 340-1950 / Fax (818) 340-1990 5900 Wilshire Boulevard, 12th Floor Los Angeles, California 90036 (310) 859-7811 / Fax (310) 276-5261 Attorneys for Claimants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE TABLE OF CONTENTS Page INTRODUCTION 1 ARGUMENT 3 I. THE DIFFICULTIES LOWER COURTS HAVE REPEATEDLY ENCOUNTEREDIN APPLYING AN OUTDATED RULE, COUPLED WITH ADVANCES IN THINKING ABOUT TESTAMENTARYINTENT, DEMAND RECONSIDERATION OF THE NEARLY 50-YEAR-OLD DECISION IN BARNES. 3 A. Contrary To The Radins’ Suggestion, Courts Have Repeatedly Had To Confront The Tension Between The Four Corners Rule And True Testamentary Intent. 4 B. Contrary To The Radins’ Suggestion, This Case Raises Important Policy Issues. 7 Il. AS THE COURT OF APPEAL SUGGESTED, THIS CASE PROVIDES AN IDEAL OPPORTUNITY TO REVISIT THE FOUR CORNERS RULE. 10 A, There Is No Basis For The Radins’ Claim That The Relief The Charities Seek Could Not Assist Them Because They Could Not Rely On Post-Will Extrinsic Evidence. 10 B. NoStatute Bars Review. 12 C. The Radins’ Other Supposed “Substantial Obstacles” To Review Pose No Obstacle At All. 13 1, This Court is fully capable of providing a reasoned opinion for any approachit might adopt. 13 2. The facts are as fully developed as they can everbe. 13 3. Any “floodgates” fears are groundless. 14 TABLE OF CONTENTS (Continued) Page CONCLUSION 15 CERTIFICATE OF COMPLIANCE 16 li TABLE OF AUTHORITIES Page CASES Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744 10 Estate ofAkeley (1950) 35 Cal.2d 26 5, 6, 14 Estate ofBarnes (1965) 63 Cal.2d 580 passim Estate ofCole (2006) 2d Civil No. B185707, 2006 WL 2666120 5 Estate ofDye (2001) 92 Cal.App.4th 966 6 Estate ofKarkeet (1961) 56 Cal.2d 277 14 Estate ofKingdon (1997) 2d Civil No. B096528 5 Estate ofRussell (1968) 69 Cal.2d 200 1, 10, 12, 13 Estate ofSalmonski (1951) 38 Cal.2d 199 7 Estate ofTaff (1976) 63 Cal.App.3d 319 14 Greenman v. Yuba Power Products, Inc. (1963) 59 Cal.2d 57 1 Liv. Yellow Cab Co. (1975) 13 Cal.3d 804 1 Pacific Gas & Elec. Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33 1,4 iil TABLE OF AUTHORITIES (Continued) CASES Siebel v. Mittlesteadt (2007) 41 Cal.4th 735 STATUTES Code of Civil Procedure, Section 1856 OTHER AUTHORITIES Dear & Jessen, ‘Followed Rates’ And Leading State Cases, 1940-2005 (2007) 41 U.C. Davis L.Rev. 683 Haskell, When Axioms Collide (1993) 15 Cardozo L.Rev. 817 Langbein & Waggoner, Reformation of Wills on the Grounds ofMistake: Change of Direction in American Law? (1982) 130 U.Pa.L.Rev. 521 Restatement Third Property (Wills & Donative Transfers), § 12.1 iv Page 14 1] 1, 13 4,8,9 5, 14 INTRODUCTION The Answer’s theme seemsto be that regardless of how outdated California law has become, the Court should leave well enough alone—Barnesdecided the issue, and that should be the end ofit. That kind of thinking has never been good enoughfor this Court, whichis why the casebooksat national law schools feature so many California cases: “[T]he California Supreme Court has been, and continues to be, the most ‘followed’ state high court in the nation.” (Dear & Jessen, ‘Followed Rates’ AndLeading State Cases, 1940-2005 (2007) 41 U.C. Davis L.Rev. 683, 693 (Followed Rates).) Addressing “difficult issues of broad application”(id. at pp. 707- 709), even when doing so bucks well-established law, has long been one of the hallmarks of this Court’s jurisprudence. It was well settled that manufacturers were notstrictly liable for product defects until Greenmanv. Yuba Power Products, Inc. (1963) 59 Cal.2d 57. It was well settled that there was no such thing as comparative fault until Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. Andthe role of extrinsic evidence in interpreting “stiff formalism’” until Estate ofRussell (1968) 69 Cal.2d 200, 210 and Pacific Gas & Elec. Co.v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33. ambiguity in wills and contracts was bound in The present case involves the same kind of anachronism as those landmark decisions. This isn’t, as the Radins imply, an idea that the charities have pulled out of thin air, or an unreal view of how California courts have been deciding will cases. It’s the view of multiple courts, legislatures and respected scholars, including the authors of the Restatement. And the needto revisit Barnes is the view of the Court of Appeal here, which felt itself bound to follow outdated precedent. Far from undermining that view, the Radins’ owndiscussion of the case law supports it. It would be hard to imagine a more compelling demonstration of the illogic and injustice of the four corners rule than our facts. The Court of Appeal found that even though Irving Duke’s true intent was“clear,” the four corners rule requires his estate to go to the very heirs that he expressly disinherited. The result makes no sense. When that happens,there is a problem with the law. The Court should grant review. ARGUMENT I THE DIFFICULTIES LOWER COURTS HAVE REPEATEDLY ENCOUNTERED IN APPLYING AN OUTDATED RULE, COUPLED WITH ADVANCESIN THINKING ABOUT TESTAMENTARYINTENT, DEMAND RECONSIDERATION OF THE NEARLY 50-YEAR-OLD DECISIONIN BARNES. The Court of Appeal’s reluctant affirmance urges this Court to reconsidertherules for interpreting wills, because existing rules makeit impossible to correct even obviouserrors. (Slip Opn., p. 12.) The Petition demonstrates that the Court of Appeal’s discomfort is consistent with modern thinking by scholars and the Restatement. They advocate the simple idea that courts should be able to do explicitly what they now do sub rosa: fix proven mistakes in wills by reforming the wills, just as courts have been doing with contracts for generations, rather than by pretending to find ambiguities where noneexist. The Radins’ responseis to ignore everything the Court of Appeal said about the need for this Court’s review and to derogate the critical thinking of courts and scholars about howto better effectuate testamentary intent. They hope that this Court will ignore recent progress in the law. The Court should not do so. A. Contrary To The Radins’ Suggestion, Courts Have Repeatedly Had To Confront The Tension Between The Four Corners Rule And True Testamentary Intent. The Court of Appeal recognized that “the ultimate disposition of Irving’s property, seemingly appropriate whenstrictly examining only the languageofhis will, does not appear to comport with his testamentary intent.” (Slip Opn., p. 12.) As the court observed,it was “clear” that Irving intended for the charities to take if his wife predeceased him. (/bid.) Butit felt constrained by the four cornersrule. The Radins argue that “this is a rare case” that does notcall for review because “no cases have been decided on this exact issue since Estate ofBarnes (1965) 63 Cal.2d 580.” (Answer, pp. 1-2, 4,italics added.) While the statement maybeliterally true, it ignores reality. As scholars have noted, both California and other courts have frequently faced the same difficulty the Court of Appeal faced here. (Langbein & Waggoner, Reformation of Wills on the Grounds ofMistake: Change ofDirection in American Law? (1982) 130 U.Pa. L.Rev. 521, 557- 558 (Reformation of Wills); Haskell, When Axioms Collide (1993) 15 Cardozo L.Rev. 817, 825.) The only difference is that most of those courts were more determined to effectuate testator intent and were willing to bypass the limitations of the four corners rule on the doctrine of implied gifts—what the Radinscall “the exact issue.” So, those courts phrased their holdings as the interpretation of supposed ambiguities. But as the Petition shows—andas Reformation of Wills confirms—that label was a proxy for the real issue: an error in an unambiguouswill that could not be corrected without considering extrinsic evidence, which in California would violate 4 the four comers rule. (Petition, pp. 19-25.) These cases demonstrate the recurring and important nature of the problem. That the Restatement Third of Property (Wills & Donative Transfers) took up the issue at all—muchless that it embraced reformation of wills—further showsthat this is not a rare issue that has escapedattention or debate. (Petition p. 31.) So does the fact that other courts and legislatures have considered allowing reformation, regardless ofthe result they reached. (Petition, p. 32, fn. 12.) The Radinsignoreall of this, with the exception oftheir failed attempt to argue that the strained California cases really did involve ambiguities. (Answer, pp. 16-19.) Of course that’s what the courts said. But the Radins’ parroting of the courts’ statements does not withstand the scrutiny of Justice Traynor’s dissent in Estate ofAkeley (1950) 35 Cal.2d 26 (Akeley) or the scholarly worksthat criticize those cases. In fact, the Radins’ discussion ofAkeley, supra, 35 Cal.2d 26 directly supports our position. In Akeley, a holographic will left the residue of the estate to three charities, but provided that each was to receive “25 percent”—leaving 25 percent unaccounted for. Despite the undeniable ' Thereis no practical way to determine how oftensimilarsituations have arisen in nonpublished cases before they becameavailable online in 2001. We know of two nonpublished cases in the Second District: Estate ofCole (2006) 2d Civil No. B185707, 2006 WL 2666120 [substantively identical facts to those here, except that the will was not holographic; court found ambiguity and allowed bequest instead of intestacy]); Estate ofKingdon (1997) 2d Civil No. B096528 [condition of spouses’ “joint death” held ambiguousand to include predecease of one].) We do notrely on these as any kind ofauthority, but only to demonstrate that our facts are notatall rare, as the Radins claim. precision of the term “25 percent,” this Court found it ambiguous, construing it to mean “one-third.” (/d. at pp. 29-30.) In dissent, Justice Traynor maintained that “25 percent” could not be an ambiguousterm that meant “one-third.” (Ud. at pp. 31-33 (dis. opn. of Traynor, J.).) Seeking to defend the majority opinion, the Radinssay that “it might be reasonable to conclude that the testator [sic] simply did not know her math in reaching the conclusion the court did.” (Answer, p. 17.) That’s exactly right—andit’s exactly our point. If the testatrix “did not know her math,” that was an error, not an ambiguity. Thetestatrix intended to bequeath one-third to each charity but expressedthat intent imperfectly with the unambiguous words“25 percent.” That error could easily have been corrected, either under the implied gift doctrine or by reformation, with the use of the extrinsic evidence that the Court considered, ifthe four corners rule did not exist. Instead, the Court avoided the problem by labeling as “ambiguous” languagethat plainly wasn’t. To look at Akeley another way: The Radinsrely heavily on Estate of Dye (2001) 92 Cal.App.4th 966, which they quote for the proposition that ““Ti]t is presumedcitizens know the law, including the intestacy laws, andit is up to any person who doesnot want those laws applied to his or her estate to opt out by preparing a will setting forth other dispositions.’” (Answer, p. 10, quoting Estate ofDye, supra, 92 Cal.App.4th at p. 973.) But by that logic, this Court surely should have charged Ms. Akeley with knowingthat 25 percent is one-quarter, not one-third. Likewise, the courts in the other cases cited in the Petition and Answer should have chargedthetestators with knowing whatthe terms “heirs” and “executor” meant. (Petition, pp. 19-25; Answer, pp. 16-19.) The courts didn’t do this, and for 6 good reason—butnot, in reality, because of ambiguities. The true but unacknowledgedreason wasthat the extrinsic evidence showedthat the testators’ unambiguouswills contained obvious mistakes, plain and simple, that were at odds with the testators’ otherwise easily-divined intent. But the mistakes couldn’t be fixed under the law as it then existed and still exists in California; all the courts could do wasinterpret ambiguities. So whileit is true that no other California cases “have been decided on [Barnes’] exact issue” (Answer, pp. 1-2), the central problem—how to fix a testator’s clear mistake so as to effectuate his or her intent—has recurred again and again. Thatis the issue this Court shouldrevisit. B. Contrary To The Radins’ Suggestion, This Case Raises ImportantPolicy Issues. The Petition and the Court of Appeal’s decision clearly delineate the harm caused by the four corners rule and importance ofrevisiting that rule. Yet the Radins claim that “Petitioners identify no significant harms caused by the current law”or important policies that are at stake. (Answer, pp.1, 20.) Not so. There is no room for debate about the proposition that “[i]n the interpretation of wills, ascertainmentofthe intention ofthe testator is the cardinal rule of construction, to which all other rules mustyield.” (Estate of Salmonski (1951) 38 Cal.2d 199, 209.) Underscoring the importanceofthat policy, the Legislature has repeatedly workedto liberalize probate law with the aim of effectuating testator intent, particularly in the context of holographic wills. (Petition, pp. 26-27.) The harm here—andin every similar case where extrinsic evidence cannot be usedto correct a testator’s mistake—isthe failure to effectuate the testator’s intent because of formalistic adherence to the outdated four comers rule. As the Court ofAppealputit, “the ultimate disposition of Irving’s property, seemingly appropriate whenstrictly examining only the language of his will, does not appear to comport with his testamentary intent.” (Slip Opn., p. 12.) Although it was “clear” to the court that Irving intendedfor the charities to take if his wife predeceased him, and although the court foundit “difficult to imagine”that he really intended to make specific gifts to charities in loving memory of family members only if he and his wife died “at the same moment,” the court was forcedto rule that his estate had to go to heirs he expressly did not want to receiveit. There is harm every time something like this happens. There is harm to the testator. There is harm to the intended beneficiaries. And even when a court does effectuate a testator’s intent by interpretational legerdemain, there is harm to the credibility of the legal system—the result comesat the expense of forthright decisionmaking, whichforcespartiestolitigate because they have no idea which doctrinetrial courts and reviewing courts mayapply. Andthere is still further harm when the reason the court cannot effectuate the testator’s intent is a lawyer’s drafting error: There may well be a follow-on malpractice suit against the lawyer. While that does provide the frustrated beneficiary with a remedy,it is hardly the best solution. AsReformation of Wills observes, “[t]he malpractice solution is also objectionable because it would channel mistake cases into the tort system. Whentranslated into tort claim and discounted for the litigation expenses and counsel fees, and for the unpredictability and delay incident to the Jury-dominated tort system, a devise frustrated by mistake would be worth but a fraction of the value in the testator’s estate. [{] More fundamentally, the changein theory from devise to tort raises a serious problem of unjust enrichment. Whereas most forms of malpractice inflict deadweight loss that can only be put right by compensation, in these testamentary mistake cases a benefit is being transferred from the intended beneficiary to a mistaken devisee. That devisee is a volunteer lacking any claim of entitlement or justified reliance. The malpractice solution would leave the benefit whereit fortuitously fell, thereby creating a needless loss to be charged against the draftsman (or his insurer).” (Reformation of Wills, supra, 130 U. Pa. L. Rev.at p. 589.) The “malpractice solution” also unavoidably puts lawyer-drafters in a conflict: They can seek to avoid a claim by asserting that their erroneous workactually doesreflect the testators’ intent, or they can risk malpractice liability by confessing their mistake in an effort to uphold the testators’ true intent, in hopes that the court will use their testimony to construe an “ambiguity” rather than reject it under the four cornersrule. IL. AS THE COURT OF APPEAL SUGGESTED,THIS CASE PROVIDES AN IDEAL OPPORTUNITY TO REVISIT THE FOUR CORNERSRULE. A. There Is No Basis For The Radins’ Claim That The Relief The Charities Seek Could Not Assist Them Because They Could Not Rely On Post-Will Extrinsic Evidence. The Court of Appealreluctantly affirmed while explaining thatit appeareda different result would be in orderif this Court revisited and overruled Barnes. (Slip Opn., p. 13.) The court did so because changing the law may well change the outcome of the case. Nonetheless, the Radins claim that reversing the Court ofAppeal will not aid the charities because they cannot rely on evidence of what happenedafter Irving wrote his will. (Answer, pp. 8-9.) This isn’t even close to right. The Radins correctly note that in Estate ofRussell, supra, 69 Cal.2d 200, the Court spoke in terms of evidence of “the circumstances under whicha written instrument was made.” (/d. at p. 211, cited at Answer, p. 9.) But the Court also made clear just a few sentenceslater that “whatis here involvedis a generalprinciple of interpretation of written instruments, applicable to wills as well as to deeds and contracts.” (/d. at p. 212.) Anothersuch principle, which the Court of Appeal itself invoked,is the rule of practical construction, which “is predicated on the common sense conceptthat ‘actions speak louder than words.’” (Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 754; see Slip Opn., p. 13 [‘‘Perhapsit is time for our Supreme Court to consider whetherthere are 10 cases where deeds speak louder than words when evaluating an individual’s testamentary intent,”italics added]; Code Civ. Proc., § 1856, Law Revision Commission Comment 1987 Amend.[“the course of actual performance by the parties is considered the best indication of what the parties intended the writing to mean”].) Applying this rule does not involve evidence of post- documentintent, as the Radins claim, but rather post-document evidence of intent at the time the document was created. Thisis an entirely conventional modeofproof. Here, Irving’s conduct, consisting in part of his statements to Sherrie Vamos, showed that he believed that the will he had already written bequeathedhis estate to the charities—i.e., that this was his intent at the time he wrote the will. (See Slip Opn., p. 12.) The Radinscorrectly note that in Barnes, the Court found certain extrinsic evidence irrelevant. (Answer, p. 8; Barnes, supra, 63 Cal.2d at pp. 582-583.) But there is no parallel here. In Barnes, the extrinsic evidence concernedthe relationship between the testatrix and her nephew, who would haveinherited if the testatrix had died at the same timeas her spouse. ([bid.) The Court observed that this evidence explained whythe will mentioned the nephew at all, but was not relevant to show anintent that he inherit under circumstancesthat did not occur. (Jbid.) Here, in contrast, the Court of Appeal believed that Irving’s intent at the time he made his will was that the charities would inherit even if he and his wife did not die at the same moment, based both on the language of the will and on Irving’s statements after his wife died. (Slip Opn., p. 12.) There is a clear record of what Irving intended, and becausethis appeal arose from a summary judgment, it must be accepted as true. The Radins’criticism of the charities’ evidence ultimately goes onlyto its 11 weightat trial, not its admissibility. It is no basis for claiming that the charities cannot eventry to establish their entitlementto Irving’s estate. B. No Statute Bars Review. The statutory landscapeis very different today from whatit was when this Court decided Barnes. Asthe Petition explains, today’s Probate Code does not contain the limits of former section 105 that appear to have been the basis for the four corners rule. (Petition, pp. 14-16.) The current statutes and theirlegislative histories indicate that the Legislature’s primary concern waspreserving the availability of extrinsic evidence as developed by this Court’s jurisprudence,particularly Estate ofRussell, supra, 69 Cal.2d 200. bid.) The legislative history does not suggest that the Legislature gave any consideration to the use of extrinsic evidence in other situations. The Radins’ reading of the relevant statutes underscores, rather than undermines, the need for review. The sea change in probate law in the 50 years since Barnes did not include any pronouncements explicitly addressing the law governing implied gifts, much less the four cornersrule. Webelieve the Legislature’s silence necessarily leaves further development in this area to the courts, but only this Court can make any definitive pronouncements on the subject. 12 C. The Radins’ Other Supposed “Substantial Obstacles” To Review Pose No Obstacle At All. The Radins pose a variety of what they claim are obstacles to review (Answer, pp. 5-8), but these kinds of obstacles have never deterred this Court from intervening in appropriate cases. 1. This Courtis fully capable of providing a reasoned opinion for any approachit might adopt. It is true that the Court would not simply overrule Barnes in a one-liner and be done with the case. (Answer, pp. 7-8.) Rather, the Court would need to shape the contours of any new law,principally “the evidentiary standards to be applied when considering extrinsic evidence”in the context of implied gifts or to reformation if the Court chooses that route. (/bid.) The need for such an effort is neither surprising nor unusual for a Court that has traditionally authored opinionsthat are “more extensive, explanatory, and analytical” than those of other state high courts. (Followed Rates, supra, at pp. 704-705.) 2. The facts are as fully developedas they can ever be. The Radins don’t explain why they think the supposedly “limited facts and procedural posture of this case” would prevent the Court from deciding the standard to be applied when considering whether to admit extrinsic evidence or to permit reformation. (Answer, p. 7.) The only possible explanation is their earlier, unexplained theory that this Court should not consider anything besides the will’s language and the fact that Irving died after his wife. (Answer, pp. 2-3.) But under that approach, no case could ever be sufficiently developed to permit review of the four 13 corners rule: The evidence would always have been excluded underthat rule and the case would always involve “limited facts.” 3. Any “floodgates” fears are groundless. Nor should the Court be deterred by the Radins’ sky-is-falling concems about opening the floodgatesto frivolous suits or claims of oral wills. (Answer, pp. 9, 13.) That is never a justification for refusing to reconsider anachronistic rules that have proven unworkable and unfair. The solution to any floodgates fear is an appropriate evidentiary standard, which the Radins agree will be an appropriate subject for discussion if the Court grants review. The Restatementurges that the standard be clear and convincing evidence,at least for reformation. (Rest. 3d Property, § 12.1.) This Court has recognizedthatstrict standards of proofare a sufficient bulwark against frivolouslitigation. (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 745 [approving malicious prosecution actions despite prior settlement; “A party filing a malicious prosecution actionstill faces strict requirements that should militate against an opening of the floodgates for this type oflitigation”].) Excludingall evidence of clear testamentary intent might seem to be a bullet-proof solution to any possible abuse, butit throws the baby out with the bath water—andin any event doesn’t avoid litigation in any case where a court is inclined to find an ambiguity. Besides, it’s not as though present law imposesbright-line rules that keep cases out of court. If that weretrue, cases like Akeley, supra, 35 Cal.2d 26, Estate ofKarkeet (1961) 56 Cal.2d 277 and Estate ofTaff(1976) 63 Cal.App.3d 319 would never have madeit out ofthe starting gate. 14 CONCLUSION The Petition demonstrates a compelling basis for review. Nothing in the Answer comeseven close to suggesting otherwise. If anything, it confirms the need. The Court should grant review. Dated: February 10, 2012 Respectfully submitted, OLDMAN,COOLEY, SALLUS, GOLD, BIRNBERG, & COLEMAN, LLP Susan Cooley RODRIGUEZ, HORII, CHOI & CAFFERATA, LLP Reynolds Cafferata BENEDON & SERLIN Gerald Serlin Douglas Benedon GREINES, MARTIN, STEIN & RICHLAND LLP Robin Meadow RobinMeadow Attorneys for Defendants and Appellants JEWISH NATIONAL FUND and CITY OF HOPE 15 CERTIFICATE OF COMPLIANCE Counselof Record herebycertifies that, pursuant to California Rules of Court, rule 8.204(c)(1) the REPLY IN SUPPORT OF PETITION FOR REVIEWis producedusing 13-point Roman type including footnotes and contains 3,506 words, whichis less than the total words permitted by the rules of court. Counsel relies on the word count of the computer program used to prepare this brief. Dated: February 10, 2012 Robin Meadow 16 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 5900 Wilshire Boulevard, 12th Floor, Los Angeles, California 90036. On February 10, 2012, I served the foregoing document describedas: REPLY IN SUPPORT OF PETITION FOR REVIEW ontheparties in this action by serving: Richard Caplan Wilfrid Roberge 8200 Wilshire Boulevard, Suite 200 Donahue Gallagher Woods Beverly Hills, California 90211 1999 Harrison Street, 25th Floor Counsel for Estate of Duke Administrator Oakland, California 94612 Counsel for Respondents Robert and Seymour Radin Margaret Lodise Clerk for Sacks, Glazier, Franklin & Lodise The Honorable Mitchell Beckloff 3500 South Grand Avenue, Suite 3500 Los Angeles Superior Court Los Angeles, California 90071 111 North Hill Street Counsel for Respondents Los Angeles, California 90012 Robert and Seymour Radin (LASC Case No. BP108971) Clerk of the Court California Court of Appeal Second Appellate District, Division Four 300 S. Spring Street, Floor 2 North Tower Los Angeles, California 90013-1213 (Court of Appeal Case No. B227954) (X) By Envelope: by placing a true copy thereof enclosed in sealed envelopes addressed as above and delivering such envelopes: (X) By Mail: Asfollows: I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with United States Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion ofparty served, service is presumedinvalid if postal cancellation date or postage meter date is more than | day after date of deposit for mailing in affidavit. Executed on February 10, 2012, at Los Angeles, California. (X) (State) I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Derivearr ~ Charice L. Mawrie