Critchlow v. Critchlow et al

Filing 13

ORDER RESETTING CASE MANAGEMENT CONFERENCE: A Joint Case Management Statement due by 9/27/2012. Case Management Conference set for 10/4/2012 at 10:30 AM in Courtroom C, 15th Floor, San Francisco. Signed by Magistrate Judge Laurel Beeler on 7/17/2012. (ls, COURT STAFF) (Filed on 7/18/2012)

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ROBERT M. VANTRESS (SBN 106442)

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VANTRESS LAW GROUP

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900 E. Hamilton Ave., Suite 100

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Campbell, CA 95008

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Telephone: [phone]

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Facsimile: [phone]

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Email: [e-mail]

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Attorneys for Plaintiff Robert Critchlow

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ROBERT W. CRITCHLOW., an individual, )
) Case No.: C-12-1198-LB
)
Plaintiff, )
) Plaintiff’s Case Management Report and
vs.
) Request For Continuance : AND ORDER
)
KATE E. CRITCHLOW, an individual,
)
and JOHN A. WANER, an individual,
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and John Does 1-15 inclusive,
)
)
Defendants. )
)

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The plaintiff submits this CASE MANAGEMENT STATEMENT & PROPOSED ORDER

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pursuant to the Standing Order for All Judges of the Northern District of California dated July 1,

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2011 and Civil Local Rule 16-9.

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1. Jurisdiction & Service

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This is a diversity action for damages arising out of the wrongful acts of the defendants, and

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each of them, in connection with Plaintiff’s father’s estate. Plaintiff, a resident of the state of Wash-

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ington, was the owner of some or all of the property belonging to his father, Warren A. Critchlow,
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deceased, who resided within this District in Santa Rosa, California, and who died on February 23,

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2003. He is suing residents of this state residing in this District arising out of that estate. Plaintiff’s

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standing and/or ownership interest in the assets of the estate are by virtue of his status, either di-

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rectly as his heir, either by intestate succession, or by last will and testament, or as beneficiary of one

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or more trust agreements or instruments executed by Warren Critchlow. Plaintiff brings this action

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seeking equitable and monetary relief caused by Defendants’ willful and/or negligent acts arising

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out of Warren Critchlow’s estate and which rights Plaintiff has by virtue of California statutory

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and/or common law rights.

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The basis for the court’s subject matter jurisdiction over plaintiff’s claims is “diversity.” Plaintiff

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Robert W. Critchlow is and has been at all times relevant to this cause of action a resident of Spo-

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kane, WA. Defendants John Waner and Kate Critchlow, at all times relevant to this cause of action

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were residents of Sonoma County, CA, in this District. Subject matter jurisdiction exists pursuant to

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28 U.S.C. § 1332 because there is complete diversity of citizenship between the parties. This Court

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has personal jurisdiction over the Defendants and venue is proper in the Northern District of Cali-

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fornia pursuant to 28 U.S.C. § 1391 because this is the judicial district in which defendants reside,

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where a substantial part of the events or omissions giving rise to the claim occurred or a substantial

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part of property that is the subject of the action is situated. The San Francisco Division of the

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Northern District of California is the appropriate division because a substantial part of the events

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giving rise to Plaintiff's claims occurred in Sonoma County.

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2. Statement of Facts.

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This is an action alleging common law fraud, conversion and breach of fiduciary duties arising

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out of Warren A. Critchlow’s estate assets, misrepresentations, and failures to disclose. Defendant

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Kate Critchlow, the surviving spouse, claims that he allegedly executed a Last Will and Testament

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dated September 26, 1989 but there is no actual proof that such will was actually executed. Warren

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A. Critchlow also allegedly executed, on September 26, 1989, the Critchlow Family Trust a/k/a the

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Warren and Kate Critchlow Trust. Defendant Kate Critchlow claims she was named as the first

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proposed Personal Representative. Plaintiff Robert W. Critchlow is an heir of the estate of Warren

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Critchlow, as his natural son, and was named as a legal heir in the alleged decedent's will and is
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named as the second proposed Personal Representative for the probate of this alleged Last Will and

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Testament of Warren A. Critchlow. Plaintiff Robert W. Critchlow is also named as an alleged bene-

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ficiary of the alleged Critchlow Family Trust a/k/a the Warren and Kate Critchlow Trust. To Plain-

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tiff's knowledge the following other persons are also beneficiaries of the Critchlow Family Trust:

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Edward R. Critchlow, Peter Wenzel, Hans Joachim Patzold and Isolde Payne.

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knowledge, he is still a beneficiary of the Critchlow Family Trust and said trust has not been repudi-

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ated. Whether he is an heir by intestate succession, or by virtue of any last wills, Plaintiff has and

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had an interest in the estate of Warren Critchlow and has standing to pursue this claim.

To Plaintiff’s

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Part of the Warren A. Critchlow estate consisted of Warren Critchlow's own separate property

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that he inherited as the surviving joint tenant from his mother, and Plaintiff's grandmother, Kathryn

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L. Rodgers, who also resided in and owned real estate in Santa Rosa, California. Defendant Kate

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Critchlow acknowledged that this real estate was in fact Warren Critchlow's own separate property

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via an Interspousal Grant Deed signed on March 18, 1994.

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Decedent Warren A. Critchlow's alleged Last Will and Testament was never probated and nei-

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ther defendant Kate Critchlow nor defendant John A. Waner ever filed a petition to probate a “lost

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or destroyed will.” Instead of filing a petition to probate decedent's “lost or destroyed will,” on

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January 8, 2004 defendant Kate E. Critchlow and defendant John A. Waner, willfully, intentionally

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and fraudulently filed in Sonoma County Probate Court a Surviving Spousal Property Petition pur-

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suant to California Probate Code Sections 100, 101 and 13500 to confirm and transfer all right title

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and interest in the estate property of Warren A. Critchlow to Kate E. Critchlow. By virtue of said

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transfer, Plaintiff was deprived of his statutory and common law rights to his lawful inheritance, and

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to the due process the law required so that he be assured that he was notified of all events concern-

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ing the estate, and his opportunity to participate in the determination of any rights of Plaintiff in

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and to any of the assets, proceeds, income, gains, or distributions of the estate, and to inquire into

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and object to the handling of said property by others, including Defendant Kate E. Critchlow.

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Attached to her Surviving Spousal Property Petition, defendants Kate Critchlow and John

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Waner filed and intentionally misrepresented under penalty of perjury to the Sonoma County Pro-

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bate Court and to the beneficiaries of the Critchlow Family Trust that there was an original Last
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Will and Testament of Warren A. Critchlow. Plaintiff Robert W. Critchlow never received any ac-

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tual notice from defendant Kate Critchlow or defendant John Waner concerning this first Surviving

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Spousal Property Petition filed January 8, 2004. Plaintiff Robert W. Critchlow did receive notice by

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regular mail of Kate Critchlow's second/amended Surviving Spousal Property Petition filed Sep-

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tember 26, 2005. This second/amended Surviving Spousal Property Petition and attachments that

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Plaintiff received by regular mail did not include a copy of Warren Critchlow's alleged Last Will and

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Testament and simply bore the notation “copy of will previously filed.” As Defendants Kate E.

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Critchlow and Defendant Waner were his fiduciaries, Plaintiff relied on the representations made by

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defendants and believed them to be accurate. Plaintiff has repeatedly made inquiry of the affairs of

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the estate to Defendant Kate E. Critchlow, and has attempted to discover and receive information

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from Kate E. Critchlow, which she is by virtue of her own fiduciary duties, obligation to fully dis-

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close to Plaintiff, but she has not been forthcoming answering such inquiries.

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Defendant Kate E. Critchlow and Defendant John A. Waner knew at the time of the estate

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administration that Warren A. Critchlow's will had been lost and/or destroyed. Defendants know-

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ingly and intentionally, with the intent to injure the assets of the estate and the beneficiaries, includ-

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ing Plaintiff, did not file a petition for the probate of a lost or destroyed will. Instead, defendants

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filed a Surviving Spousal Property Petition in February 2004 with the Sonoma County Probate

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Court requesting that all assets of the Warren A. Critchlow estate be transferred to confirmed as the

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property of Defendant/Trustee Kate E. Critchlow. This was done to conceal Plaintiff’s rights in

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the estate and to deprive Plaintiff of his rightful assets and proceeds of the estate.

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Defendants’ misconduct, including the multiple breaches of their fiduciary duties, harmed

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Plaintiff, the estate, the property of Plaintiff, the Trusts and its Beneficiaries, damaging the Plaintiff

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personally in an amount unknown but to be ascertained. Plaintiff’s damages include loss of proper-

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ty, lost distributions, distributions not made, property damages, legal expenses, lost income, and

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other damages.

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3. Legal Issues

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There were issues trying to get the summons issued which caused the summons and complaint

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to be served only recently. Accordingly, the defendants have requested an extension of time, and
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the parties have thus not been able to conduct the pre-conference meeting to discuss these issues.

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It is premature to identify the legal issues at this time. Plaintiff is unable to determine which legal

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issues defendants intend to dispute. Plaintiff would be engaging in speculation at this point to state

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which legal issues will be disputed by defendants. For this reason, Plaintiff requests a 60 day post-

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ponement and extension of the Case Management Conference deadlines.

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4. Motions

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the anticipated motions at this time.

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Plaintiff is unable to determine which motions defendants intend to dispute. Plaintiff would be en-

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gaging in speculation at this point on that subject. For this reason, Plaintiff requests a 60 day post-

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ponement and extension of the Case Management Conference deadlines. There are no pending mo-

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tions by plaintiff or defendants.

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5. Amendment of Pleadings

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the anticipated amendments of pleadings

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at this time. Plaintiff would be engaging in speculation at this point on that subject. For this reason,

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Plaintiff requests a 60 day postponement and extension of the Case Management Conference dead-

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lines.

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6. Evidence Preservation

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Plaintiff’s counsel has advised Plaintiff to preserve evidence relevant to the issues reasonably

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evident in this action. Plaintiff cannot speak to the evidence in the possession of defendants or their

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attorneys and/or whether steps have been taken to preserve their evidence.

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7. Disclosures

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify conduct the required pre-Conference dis-

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closures at this time. Plaintiff would be engaging in speculation at this point on that subject. For this

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reason, Plaintiff requests a 60 day postponement and extension of the Case Management Confer-

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ence deadlines. There has not been full and timely compliance with the initial disclosure require5

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ments of Fed. R. Civ. P. 26. Plaintiff has not made any initial disclosures due to the late service of

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both defendants. Plaintiff assumes that both defendants will retain counsel and file notices of ap-

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pearance. At that time plaintiff will who the defense lawyers are, have their mailing addresses

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and/or email addresses and will then be able to comply with the initial discovery disclosure re-

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quirement.

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8. Discovery

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There has been no discovery taken to date. For the same reasons cited above, the parties have

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not been able to conduct the pre-conference meeting to discuss these issues. It is premature to iden-

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tify the discovery plan at this time. Plaintiff would be engaging in speculation at this point on that

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subject. Thus, there cannot be a proposed discovery plan pursuant to Fed. R. Civ. P. 26(f).

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9. Class Actions

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Plaintiff does not intend to turn this case into a class action.

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10. Related Cases

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As disclosed at the time the complaint was filed, there is no related cases or proceedings pend-

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ing before another judge of this court, or before another court or administrative body, but Plaintiff

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has disclosed a prior “Safe Harbor Proceeding” in Sonoma County Case # SPR 75705 which is no

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longer pending, and which Plaintiff does not belief falls within the definition of a “related case.”

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11. Relief

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Plaintiff will be seeking damages for loss of his property, and the use thereof, including the

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amount of his time (plaintiff is an attorney in Washington) and costs he has had to expend to de-

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termine the facts surrounding the administration of his father’s estate and to discover the fraud in

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this case and the violations of fiduciary duties. Plaintiff will also be seeking punitive damages and

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plaintiff cannot state an amount at this time since this amount will depend on discovery of the full

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nature and extent of defendants’ willfulness in their actions and the presence of any potentially mit-

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igating factors.

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12. Settlement and ADR

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the prospects for settlement or mediation
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at this time. Plaintiff would be engaging in speculation at this point on that subject. For this reason,

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Plaintiff requests a 60 day postponement and extension of the Case Management Conference dead-

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lines. There are no prospects for settlement. Plaintiff does not oppose a negotiated settlement of

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this case via mediation, arbitration or some other court sanctioned process.

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13. Consent to Magistrate Judge For All Purposes

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Plaintiff has already filed his consent to have a magistrate judge conduct all further proceedings

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including trial and entry of judgment. For the same reasons cited above, the parties have not been

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able to conduct the pre-conference meeting to discuss these issues. It is premature to identify the

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anticipated amendments of pleadings at this time. Plaintiff would be engaging in speculation at this

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point on that subject. For this reason, Plaintiff requests a 60 day postponement and extension of

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the Case Management Conference deadlines.

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14. Other References

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It is premature at this time to determine whether the case is suitable for reference to binding

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arbitration, but it is not suitable for a special master, or the Judicial Panel on Multidistrict Litigation.

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the anticipated alternative procedures

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such as a reference or arbitration, at this time. Plaintiff would be engaging in speculation at this

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point on that subject. For this reason, Plaintiff requests a 60 day postponement and extension of

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the Case Management Conference deadlines.

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15. Narrowing of Issues

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the anticipated narrowing of the issues at

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this time. Plaintiff would be engaging in speculation at this point on that subject.

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16. Expedited Trial Procedure

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss the issue of an expedited trial at this time. Plaintiff would be engaging in specula-

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tion at this point on that subject. Plaintiff believes that this question depends on how much discov-

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ery will be necessary and how many additional defendants (via amended complaint) will need to be
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added as parties.

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17. Scheduling

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify a schedule to be proposed at this time.

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Plaintiff would be engaging in speculation at this point on that subject.

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18. Trial

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For the same reasons cited above, the parties have not been able to conduct the pre-conference

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meeting to discuss these issues. It is premature to identify the anticipated trial time. Plaintiff has re-

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quested a jury trial though.

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19. Disclosure of Non-party Interested Entities or Persons

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Plaintiff has filed his “Certification of Interested Entities or Persons” required by Civil Local

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Rule 3-16. The non-party interested entities have been disclosed already in plaintiff’s complaint.

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Those non-parties are as follows: Edward R. Critchlow, Peter Wenzel, Hans Jochim Patzold, Isolde

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Payne.

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Dated: July 17, 2012

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Respectfully submitted,
VANTRESS LAW GROUP

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Robert M. Vantress, Attorneys for Plaintiff
Robert W. Critchlow
The Case Management Conference is reset to October 4, 2012 at 10:30 a.m. A Joint Case
Management Conference Statement due September 27, 2012. The case management conference
on July 19, 2012 at 10:30 a.m. is VACATED.
Dated: July 17, 2012

LAUREL BEELER
U.S. MAGISTRATE JUDGE

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