"The purpose of today's hearing was to set a date for hearing with regard to the 850 Petition.
When we last met regarding this same issue on September 28, 2011, Mr. McCaffrey agreed to set-up meetings with his client, Elizabeth Adler, with the goal of reducing the amount of questionable items in the Trust Accounting.
On November 8, 2011, I advised the Court that six weeks had passed and Mr. McCaffrey had not set-up any meetings with me and his client. Your Honor instructed Mr. Siracusa to contact Mr. McCaffrey with regard to the meetings.
Not until November 18, 2011, did I received an email from Mr. McCaffrey advising me that he was noticing my deposition...
"After some consideration I have decided that the most useful and efficient way to review your records with you would be in the context of a deposition." A subsequent email stated the following:
"We only want to go over this material once, and therefore we have concluded that it would be much more efficient to do it on the record the first time."
To be honest, your Honor, I was shocked by Mr. McCaffrey's emails based on your direction during the September 28, 2011 hearing and your instructions to Mr. Siracusa on November 8, 2011.
Mr. McCaffrey was brought into this case as a litigation attorney after my Uncle and I retained the services of Herman Franck. Now that Mr. Franck has been removed by Mr. McCaffrey and Ms. Adler, why is Mr. McCaffrey still involved. His continued participation is costing the Trust even more money in professional fees.
Your Honor, why would Mr. McCaffrey depose me? I have not even had an opportunity to meet with Ms. Adler. In addition, it was Mr. Siracusa who filed the 850 Petition to begin with. Mr. McCaffrey made several errors in his request for documents back in April and even though I pointed those errors out to him, he sent me the exact same request for documents along with the notice of deposition. It is clear that he does not understand or nor has he read the 1500 pages of documentation I have submitted. The documentation that without a doubt proves my innocence.
In addition, Mr. McCaffrey opened the discovery process in April of 2011...Why is he deposing me now? Why is he asking the questions rather than Ms. Adler, the Court appointed fiduciary?
Finally, Mr. McCaffrey states that as a party to the action I am not entitled to the statutory 10 days time when documents are requested.
Based on Mr. McCaffrey's notice of deposition, I began to do research regarding several issues regarding this case:
Regarding an 850 Petition, California Probate Code 850 3 (d) states that "the Petition shall set forth "facts" upon which the claim is based." In addition, I discovered 850 Petitions are used to transfer real property into a revocable trust after the death of the settlor.
This 85 Petition filed by Adler is based on allegations and hearsay. I believe the appropriate venue to bring a breach of trust is defined in California Probate Code 16400-16403. Also, a typical 850 Petition is resolved within 2 months of it's filing. It has been 2 years since Ms. Adler filed her claim.
In July of 2009 and again in August of 2009, I met with Ms. Adler on three separate occasions and provided her with hundreds of pages of documentation. My email records and copies of trust documents also show that I continued to cooperate with her after the mediation in October of 2009.
When I met with Ms. Adler, she thanked me for being so organized and assured me that I had not done anything wrong. Her exact words were:
"You aren't a trained professional. How would you know how to prepare a Trust Accounting?"
She also told me about her other victims who gave her boxes of receipts and then left it up to her to figure things out. She was so pleased that I was so organized!
I provided access to my bank accounts, produced over 1500 pages of receipts and documents, filed a 170 page response to Ms. Adler's spreadsheet and proof that the Trust owes me over $50,000 for my out of pocket expenses.
It has been almost two years since Adler filed her Petition, and I still have not had a hearing. I have not even been given an opportunity to meet with her. According to Brian McCaffrey, I will never have that opportunity despite the fact that Ms. Adler has met with Thomas DeMartini and Kristine Wright on many occasions and that Ms. Adler has totally ignored the fact that Thomas DeMartini received over $160,000 from the Trust.
Mr. McCaffrey told the Court that a hearing could be concluded in two afternoons, however, he now claims that my deposition will take more than one day.
I believe that the 850 Petition was an inappropriate means to bring an action against me and that Ms. Adler's attorney should have filed the case under California Probate Code 16400-16403 if indeed she had the right to file a claim at all.
Ms. Adler, her attorneys and Emilie Calhoun have time after time accused me of prolonging these proceedings. I believe that Mr. McCaffrey's notice of deposition is a delay tactic and that if Ms. Adler had met with me prior to bringing this action in December of 2009 (less than 8 weeks after the mediation that she was a party to), we would not be where we are today. Ms. Adler's 850 Petition is not based on facts. It is a fabrication based on allegations and hearsay. Ms. Adler's petition was filed under the very same case number as the dismissed case.
Because of Ms. Adler's outrageous behavior and total disregard for the beneficiaries of the Catherine DeMartini Trust, my Uncle and I do not have an attorney representing us. However, Ms. Adler has TWO attorneys representing her. Both attorneys are paid by the Trust.
I am requesting that Mr. McCaffrey's services be terminated.
I am also respectfully requesting that your Honor grant me a hearing so that I can prove my innocence to the Court and show that Ms. Adler brought this case inappropriately and without cause in the wrong venue.
I will also prove that based on the FACTS of the case that the Trust owes me in excess of $50,000 and that from the beginning Ms. Adler's claim was a total fabrication.
I will also prove to the Court that Ms. Adler did not treat the beneficiaries equally and that her actions in NO WAY benefited the Trust or its beneficiaries. Most of all, I will prove that Ms. Adler did NOTHING to protect my Grandmother, that she did not make the Trust productive and that she violated many, many probate codes, California laws and Rules of the Court.
Finally, I am requesting that the sale of 1462 11th Avenue be postponed until after I have had the opportunity to prove my innocence.
When that happens, it is my understanding that Ms. Adler will be liable to the Trust for double damages and both mine and my Uncle's inheritances will increase significantly. It is my Uncle's wish to purchase his childhood home. The home my Grandmother lived in for over 80 years. The home my Uncle, my Father, my children and I grew up in. The home that Ms. Adler is so anxious to sell with total disregard for 75% of the beneficiaries of the Trust. The home that my Grandmother wanted my Uncle to live in!!!!"
