B293565

IMMEDIATE STAY REQUESTED

IN THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION p

GEORGE I. COHN, Court of Appeal Case No.

Petitioner and Respondent, B293565
v. (Superior Court Case No.
DAVID COHN, BP170176)
Appellant, Respondent,
Petitioner,

PETITION FOR WRIT OF SUPERSEDEAS OR OTHER

APPROPRIATE RELIEF; MEMORANDUM OF POINTS
AND AUTHORITIES; AND REQUEST FOR IMMEDIATE
STAY ON ALL TRIAL COURT PROCEEDINGS PENDING
DECISION ON REVIEW

David A. Cohn
20294 Lorenzana Drive
Woodland Hills, CA 91364
Telephone: (818) 713-1268
davidesq58@yahoo.com
Appellant in Pro Per

1
 TABLE OF CONTENTS
I. INTRODUCTION...................................................... 7

A. Why Writ Relief Should Be Granted……………..7

B. Why an Immediate Stay Should Issue………….. 9

C. Relief Requested………….....................................10

II. PETITION FOR A WRIT OF SUPERSEDEAS…….11

A. Parties................................................................... 11

B. Authenticity of Exhibits...................................... 11

C. Timeliness of Petition........................................... 12

D. Basis for Relief...................................................... 13

E. Absence of Other Remedies.................................. 17

III. VERIFICATION........................................................ 18

IV. MEMORANDUM OF POINTS AND

AUTHORITIES.......................................................... 19

A. The Underlying Dispute....................................... 19

1. Introduction..................................... 17

2. The Adverse Nature of Trusts

A and B.............................................. 21

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 a. Starting in 2014, Acting as
Trustee’s Ostensible Agent,
Jonathan Initiated Efforts to
Eliminate the Irrevocable B
Trust in its
Entirety............................................ 21

b. Trust A was Modified to Exclude

Petitioner as a Beneficiary............... 25

c. In 2016, Trustee Filed a Petition in a

Failed Attempt to Modify Trust B to
Petitioner’s Detriment...................... 26

d. Trustee Petition for Approval of Trust B

Accounting, Which Petitioner is
Appealing, Sought Approval of
Illegitimate Expenditures................ 27

i. Litigation Costs....................... 27

ii. Discretionary Mortgage

Payments................................ 27

iii. Monarch Maintenance

Costs........................................ 31

B. THE APPEAL HAS MERIT BECAUSE THE

UNDISPUTED FACTS DEMONSTRATE THAT THE
ACCOUNTING SHOULD NOT HAVE BEEN
APPROVED BECAUSE TRUSTEE BREACHED HIS
DUTY UNDER PROB CODE § 16005 NOT TO
UNDERTAKE ADVERSE TRUSTS.................... 32

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 C. THE APPEAL HAS MERIT BECAUSE THE
UNDISPUTED FACTS DEMONSTRATE THAT THE
ACCOUNTING COULD NOT HAVE BEEN
APPROVED BECAUSE TRUSTEE BREACHED HIS
DUTY OF LOYALTY UNDER PROB CODE § 16002
BY FAILING TO GIVE NOTICE OF
TRANSACTIONS BETWEEN THE TWO
TRUSTS................................................................ 34

D. THE COURT SHOULD ISSUE AN IMMEDIATE

STAY OF PROCEEDINGS UNDER CALIFORNIA
CODE OF CIVIL PROCEDURE § 916 TO PREVENT
SIGNIFICANT UNDUE CONSUMPTION OF
JUDICIAL, TRUST AND PARTY
RESOURCES...................................................... 37

CERTIFIED WORD COUNT………………………………….. 43

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 TABLE OF AUTHORITIES
CASES
Chapala Managment Corp. v. Stanton (2010) 186 Cal.App.4th
1532, 1542 [113 Cal.Rptr.3d 617............................................. 37

Deepwell Homeowners’ Prot. Ass’n. v. City Council of Palm

Springs (1965) 239 CA2d 63, 65–66, 48 CR 321..................... 10

Elsea v. Saberi (1992) 4 CA4th 625, 629, 5 CR2d 742]...........40

Hollaway v. Scripps Memorial Hosp. (1980) 111 CA3d 719, 723,

168 CR 782................................................................................ 37

Jones v. Stubbs (1955) 136 Cal.App.2d 490, 499-500 [288 P.2d

939]. .......................................................................................... 23

Mills v. County of Trinity (1979) 98 Cal.App.3d 859, 861 ..... 13

People ex rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69

C2d 533, 537, 72 CR 790, 446 P2d 790...................................10, 13

Purdy v. Johnson (1917) 174 C 521, 527, 163 P 893............... 8, 30

Reed v. Superior Court (2001) 92 Cal.App.4th 448, 455 [111 Cal.

Rptr. 2d 842] ............................................................................ 37

Smith v. Zak (1971) 20 Cal.App.3d 785, 793 [98 Cal.Rptr. 242]

................................................................................................... 32

Van de Kamp v. Bank of America (1988) 204 CA3d 819; 251 CR

530…………………………............................................... 8, 30, 32

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Varian Med. Sys., Inc. v. Delfino (2005) 35 C4th 180, 190, 25
CR3d 298, 106 P3d 958.................................................. 9, 40-41

STATUTES
CCP § 916(a). ................................................................. Passim
California Code of Civil Procedure §2025.010.........................14
Probate Code § 62........................................................... 16, 36
Prob Code § 15409 ...................................................................26
Prob Code § 16002 ..................................... 16, 30, 34, 36-37, 41
Prob Code § 16005........................................................... 32, 41
Prob Code § 16007.....................................................................31-32

MISCELLANEOUS
California Rules of Court 8.124(b)(3)(a) and (d) .................... 11
Jurisdiction Over Debts for the Purpose of Administration,
Garnishment and Taxation, Harvard Law Review,
Volume XXXI, 1917-1918 at page 912. ................................... 36

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 I.
INTRODUCTION.
A. Why Writ Relief Should Be Granted.
The underlying appeal is from the approval of an
accounting by the Probate Depart of the Superior Court of the
County of Los Angeles Judgment for which was entered on
August 27, 2018 (hereinafter “the Judgment”). (3 WA TAB 24,
page 641 – August 27, 2018 Judgement 1; 3 WA TAB 23, page 631
– July 31, 2018 Statement of Decision).

This writ is brought in an effort to eliminate needless

expenditure of judicial, trust and party resources.

In approving the accounting, the trial court overruled

Petitioner David Cohn’s (“Petitioner”) objections that the
accounting could not be approved because, among other reasons,
the trustee, George Cohn (“Trustee”) had committed numerous
breaches of trust (1 WA TAB 4, pages 125-126 - Objection to
Trustee’s petition for First Account Current and Report of
Trustee; 1 WA TAB 5, pages 139 ff. – Petitioner’s Trial
Statement; 3 WA TAB 21 – Amended Closing Argument, page
611 ff.; 3 WA TAB 22, page 623 ff. - Objector’s Objection to

1Citations in this form refer to [Volume number] WA (Writ

Appendix) TAB [Tab number], page [writ appendix page
number]) – [description/title of document].

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Proposed Statement of Decision). Purdy v. Johnson (1917) 174 C
521, 527–528, 163 P 893; Van de Kamp v. Bank of America (1988)
204 CA3d 819, 836–837, 251 CR 530.

On September 6, 2018, Petitioner filed a Petition in the

trial court 2 (3 WA TAB 25, page 651 ff. – September 6, 2018
Pending Trial Court Petition) seeking, among other things, the
removal of Trustee for the same breaches of trust which the trial
court overruled in approving the accounting. Trustee apparently
concurs as he pleads in his November 13, 2018 Response and
Objection (3 WA TAB 27, page 660 - Response and Objection) at
paragraph 2: “David Cohn has now filed this current petition
which in essence seeks to again litigate many of the same issues
previously raised in the trial on the accounting.”

Thus, there appears to be substantial agreement between

the parties that Petitioner’s Appeal (3 WA TAB 26, page 658 –
Petitioner’s Notice of Appeal filed October 9, 2018) of the
Judgment (3 WA TAB 24, page 641), presents “matters embraced
therein or affected” by the pending Trial Court Petition. (3 WA
TAB 25, page 644 – Pending trial court petition). CCP § 916(a).

2 Petitioner could not wait any longer to file his petition in the
trial court due to potential issues of certain claims otherwise
being time barred.

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 On November 19, 2018 the trial court set trial on
Petitioner’s September 6, 2018 petition for February 19, 2019
over Petitioner’s objection that the proceeding is inherently
inconsistent with a possible outcome on appeal and must
therefore be stayed under CCP 916(a), Varian Med. Sys., Inc. v.
Delfino (2005) 35 C4th 180, 190, 25 CR3d 298, 106 P3d 958 (A
trial court proceeding affects the effectiveness of an appeal if the
possible outcomes on appeal and the actual or possible results of
the proceeding are irreconcilable). The trial court made it clear
that it would not entertain a written motion on the issue and that
Petitioner should take the matter up with the Court of Appeal.
No transcript was available of the proceeding at the time of the
filing of this petition.

B. Why an Immediate Stay Should Issue

Unless a stay is issued, it is extremely likely that the result

will be an excessive and unnecessary consumption of judicial,
trust and personnel resources on potentially needless litigation.

With trial only weeks away on February 19, 2019, the

parties must now expend considerable resources to prepare.
Then, following the virtual certainty that the trial court will
repeat the legal errors it made in overruling Petitioner’s
objections that the accounting (now under appeal in this Court)
could not be approved because of Trustee’s numerous breaches of

9
trust, Petitioner will be faced with making a further appeal to
this Court and, if successful, a likely new trial.

C. Relief Requested.

To prevent that harm, Petitioner respectfully requests this

Court issue a stay of trial court proceedings (on Petitioner’s
pending trial court Petition) pending resolution of the appeal of
the accounting matter which “embraces” and “affects” common
issues of breach of trust. CCP § 916(a), Deepwell Homeowners’
Prot. Ass’n. v. City Council of Palm Springs (1965) 239 CA2d 63,
65–66, 48 CR 321 (quoted with approval in People ex rel. S. F.
Bay etc. Com. v. Town of Emeryville (1968) 69 C2d 533, 537, 72
CR 790, 446 P2d 790) (An appellate court may grant a writ of
supersedeas when a denial of a stay of enforcement would
deprive the appellant of the benefit of a reversal of the judgment
against him or her, provided, of course, that a proper showing is
made).

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 II.
PETITION FOR A WRIT OF SUPERSEDEAS

Petitioner David Cohn alleges:

A. Parties

1) Trustee, George Cohn, was the Petitioner in the

underlying action, In Re the Matter of: The George I. Cohn and
Rose A. Cohn Family Trust Dated September 16, 1991, Marital
Trust B, Los Angeles Superior Court number BP170176 filed on
April 24, 2017 for First Account Current and Report of Trustee of
Marital Trust B (1 WA TAB 3, page 18 - First Account Current
and Report of Trustee).
2) On May 18, 2017, Petitioner, David Cohn, filed his
Objection to Trustee’s petition for First Account Current and
Report of Trustee of Marital Trust B alleging numerous breaches
of trust. (1 WA TAB 4, page 123 - Objection to Trustee’s petition
for First Account Current and Report of Trustee).
B. Authenticity of Exhibits
3) All exhibits accompanying this Petition are true and
correct copies of original documents on file with respondent
court. 3 The exhibits are incorporated herein by this reference as

3Unreferenced subdocuments have omitted pursuant to

California Rules of Court 8.124(b)(3)(a) and (d). In some cases,
highlighting has been added to assist the Court in identifying the

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though fully set forth in this petition. The exhibits are paginated
consecutively, and page references in this petition are to the
consecutive pagination.
C. Timeliness of Petition
4) On August 27, 2018, the Probate Depart of the
Superior Court of the County of Los Angeles entered Judgment in
the underlying case, a trust accounting, approving the accounting
and overruling Petitioners objections based on Trustee’s
numerous breeches of trust. (3 WA TAB 24 - Judgment)
5) On September 6, 2018, Petitioner filed a new Petition
in the trial court requesting, among other things, the removal of
the Trustee for breach of trust including those alleged in
Petitioner’s objection to the accounting. (3 WA TAB 25, page 641
– September 6, 2018 trial court Petition). As noted previously,
Petitioner could not wait any longer to file the petition due to
potential issues of some claims being otherwise time barred.
6) On October 9, 2018, Petitioner filed his Notice of
Appeal of the Judgment (3 WA TAB 24, page 641- Judgment; 3
WA TAB 26, page 656 – Notice of Appeal).
7) On November 19, 2018, the trial court set trial on
Petitioner’s September 6, 2018 petition (3 WA TAB 25, page 644
– Pending trial court petition) for February 19, 2019 over

referenced portion of the record. PLEASE NOTE: Some pages

have more than one highlighted section.

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Petitioner’s objection the proceeding is inherently inconsistent
with a possible outcome on appeal and must therefore be stayed
under CCP 916(a). In doing so, the trial court made it clear that
it would not entertain a motion on the issue and that Petitioner
should take the matter up with the Court of Appeal. As
previously noted, no transcript was available of the proceeding at
the time of the filing of this petition.

D. Basis for Relief

8) A writ of supersedeas is appropriate where “to deny a

stay would deprive the appellant of the benefit of a reversal of the
judgment against him, provided, of course, that a proper showing
is made. People ex rel. San Francisco Bay Conservation & Dev.
Co. v. Emeryville (1968) 69 C2d 533, 537, 72 CR 790, 446 P2d 790
9) A proper showing is made where an appellant who
will suffer such irreparable harm can show a relative lack of
harm to respondent and that appellant’s appeal has merit. See
Mills v. County of Trinity (1979) 98 Cal.App.3d 859, 861.
10) Petitioner will be irreparably harmed if this stay is
not granted because of the virtual certainty that this would result
in the considerable and needless expenditure of judicial, trust
and personal resources. Petitioner would then be faced with
having to make a further appeal to this Court and, if successful, a
new trial, a prospect representing a considerable, yet avoidable,
expenditure of judicial, trust and personal resources.

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 11) Trustee will not be harmed by the stay even given his
advanced age because:
a) Petitioner stipulates to expedited proceedings before
this Court;
b) Trustee has already given testimony about most, if
not all, of the issues in the Petitioner’s pending trial court
Petition which Petitioner stipulates would be admissible in
the event Trustee is unable to testify. (See 3 WA TAB 25,
page 644 – Pending trial court petition, 2 WA TAB 6, page
165 ff. – Transcript of the accounting trial); and
c) If necessary, Trustee’s testimony can also be
preserved by a statement before a court reporter.
California Code of Civil Procedure §2025.010 (Oral
deposition in of any person by any party).
12) Petitioner’s appeal has merit. In the accounting
matter which is the subject of the instant appeal, Petitioner
objected that the accounting could not be confirmed because the
undisputed facts establish that Trustee had committed numerous
breaches of trust by, among other things:
a) Maintaining the trusteeship of two different trusts
with interests “adverse in its nature” in violation of Prob
Code § 16005. The sole reason cited by the trial court for
overruling this objection is: “Courts rarely remove a trustee
named by the settlor based on facts known at the time the

14
trustee was appointed, in this case the surviving spouse.”
(3 WA TAB 23, page 637 – Statement of Decision).
However, as Petitioner explained to the trial court: “This
ignores the undisputed fact that the conflict arose more
than two years after the death of the first settlor Rose,
when Trustee removed Objector as a Trust A beneficiary
causing Trusts A and B to have different beneficiaries.” (3
WA TAB 22, page 627 – Objection to Statement of
Decision).
b) As will be explained in detail below, the trusts were
adverse in that:
i) They had different beneficiaries with different
interests in that Petitioner had been eliminated as a
Trust A beneficiary;
ii) Trustee had made clear his intention to
eliminate Trust B in its entirety if possible, and, if not to
deplete its assets as much possible by:
(1) Pressuring the beneficiaries to sign an
agreement to eliminate (irrevocable) Trust B in its
entirety.
(2) Instigating failed litigation to make
changes adverse to Trust B beneficiaries which the
trial court described as “needless litigation” and
“obvious before the expense of drafting, filing, and

15
 litigating a petition that it would not succeed under
the applicable law.” (3 WA TAB 23, page 634 -
Statement of Decision);
iii) Attempting to deplete Trust B though
illegitimate expenses including legal fees and costs in
the above referenced failed litigation which was
dismissed by Trustee on the eve of trial.
c) Making advances from trust A to trust B of
approximately $126,297.68 without providing notice or
disclosing the terms on which these advances were made as
required by Prob Code § 16002(b). The sole reason the trial
court gave for overruling this objection was that the notice
requirements of Prob Code § 16002(b) were not triggered
because: “No property was exchanged between the two
trusts.” (3 WA TAB 23, page 633 – Statement of Decision).
The trial court ignored the terms of Probate Code § 62
which provides: “‘Property’ means anything that may be the
subject of ownership and includes both real and personal
property and any interest therein.” As petitioner explained
to the trial court, “Obviously, both money (advanced sums)
and a debt/loan may be ‘the subject of ownership.’” (1 WA
TAB 5, page 139 – Petitioner’s Trial Statement; 3 WA TAB
22, page 623 – Petitioner’s Objection to Proposed
Statement of Decision).

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 d) Using the advances for illegitimate purposes
including, but not limited to, litigation costs of $27,910.66
for the above-mentioned failed litigation and $50,000 in
discretionary payments on the Monarch mortgage which
was not in the interest of Trust B beneficiaries in that,
among other things, the terms of the mortgage loan were
well known, but the terms of the advance from Trust A
were never disclosed.

E. Absence of Other Remedies

13) Petitioner has exhausted his remedies before the trial

court, and has timely filed his notice of appeal. Petitioner has no
other adequate remedy at law.
PRAYER
Wherefore, Petitioner, David Cohn, prays that this Court:

1. Issue an order staying proceedings in the trial court

on Petitioner’s pending petition pending resolution of the
instant appeal on its merits;

2. Grant such other and further relief as may be just or

proper.

Dated: December 23, 2018

_________________________________
David Cohn
Petitioner in Pro Per

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 VERIFICATION
I, David Cohn, am the Petitioner/Appellant in the above-
entitled appeal. I have read the foregoing petition and know the
contents thereof. The same is true of my own knowledge, except
as to those matters which are therein stated on information and
belief, and, as to those matters, I believe it to be true.

I declare under penalty of perjury under the laws of the

State of California that the foregoing is true and correct.

Dated: December 23, 2018

_________________________________
David Cohn
Petitioner in Pro Per

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 MEMORANDUM OF POINTS AND AUTHORITIES
A. The Underlying Dispute
1. Introduction
The fist settlor, Rose Cohn, the mother of Appellant/
Petitioner David Cohn (“Petitioner”) passed away on June 27,
2013. The B portion of the trust became irrevocable at that time.
(1 WA TAB 3, page 25 – First Account Current [Trust instrument
which is Exhibit A thereto]).

The surviving settlor George Cohn (“Trustee”), Petitioner’s

father, who is now 97-years-old, became the trustee of both the A
and B trusts. (1 WA TAB 3, page 18 - First Account Current and
Report of Trustee).

Jonathan Cohn (“Jonathan”), Petitioner’s brother and Trust

beneficiary, is a CPA who performed the trust accounting and is
Trustee’s caregiver (2 WA TAB 6, pages 187, 227, 289-290, 320 –
Trial Transcript).

The family residence (“Monarch”) is the main asset of the

Trust and the only remaining asset of the B trust (2 WA TAB 6,
page 200 - Trial Transcript). Under the terms of the Trust,
Jonathan has a right to live in Monarch as long as he wishes and
is able. (1 WA TAB 3, pages 56-57 - First Account Current and
Report of Trustee [Exhibit A thereto – Trust instrument]).

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 In a June 9, 2014 email (3 WA TAB 9, page 481 – Trial
Exhibit 18), Trustee wrote: “Jon's income is not adequate to
provide for the maintenance of the [Monarch] house [and
therefore proposed] immediate total disbursement of [trust]
resources” upon Trustee’s passing. (2 WA TAB 6, page 333 ff. -
trial transcript). However, by December 25, 2014, as documented
in Petitioner’s February 10, 2015 letter to Trustee (3 WA TAB 12,
pages 558-559 – Trial Exhibit 32 - February 10, 2015 letter, 2 WA
TAB 6, page 334 – Trial Transcript, 3 WA 21, page 610 –
Amended Closing Argument) and Trustee’s July 23, 2015 letter to
Petitioner (3 WA TAB 18, page 587 – Trial Exhibit 39 - July 23,
2015 letter), Trustee had, for reasons that have never been
explained, changed his mind completely and was committed,
seemingly at all costs, to keeping Monarch in perpetuity even
though, in an August 26, 2016 judicial admission, Trustee
admitted that nothing had changed financially. (3 WA TAB 19,
page 597 – Trial Exhibit 40 - RFA #’s 2 and 3; 3 WA TAB 20,
pages 603-604 – Trial Exhibit 41 - Responses to FRA #’s 2 and 3).

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 2. The Adverse Nature of Trusts A and B

a. Starting in 2014, Acting as Trustee’s

Ostensible Agent, Jonathan Initiated
Efforts to Eliminate the Irrevocable B
Trust in its Entirety.
In 2014 and 2015, Jonathan worked with trust attorney
Karen Mateer to prepare an agreement to eliminate Trust B, the
portion of the trust that had become irrevocable. (2 WA TAB 6,
229-233 - Trial Transcript, 3 WA TAB 7, pages 454-455, 458 –
Trial Exhibit 7, Discovery responses including Mateer billing
records; 3 WA TAB 9, pages 476-479 – Trial Exhibit 18 –
Discovery response [Email exchange with Mateer]).

In a letter dated January 4, 2015, Jonathan demanded

that Petitioner sign the enclosed agreement which would have
divested Petitioner of all trust rights through the wholesale
elimination of Trust B. (2 WA TAB 6, pages 329-330 - Trial
Transcript; 3 WA TAB 9, pages 484-486 - Trial Exhibit 18 –
Discovery response including January 4, 2015 Letter from
Jonathan and attached Agreement to Modify Trust).

In subsequent letters from Trustee (which to one degree or

another were all edited, approved and/or in whole or in part
authored by Jonathan [2 WA TAB 6, pages 296-298 - Trial
Transcript]), Trustee made repeated threats that if Petitioner did

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not sign the agreement and compel his adult daughter Michelle
to do so as well, he would be disinherited.

Trustee’s letter dated February 8, 2015 states: “This is the

version [of the Agreement to Modify Trust] that you are expected
to sign, and I will hold you accountable for both yours and
Michelle's notarized signatures.” (2 WA TAB 6 - Trial Transcript
page 349; 3 WA TAB 15, pages 572-574 – Trial Exhibit 36 -
February 8, 2015 letter and attached Agreement to Modify
Trust).

Objector responded in a letter dated February 12, 2015 (3

WA TAB 16, page 579 – Trial Exhibit 37 - February 12, 2015
letter) pointing out that “Michelle is an adult. I do not control
her. As such I cannot be ‘accountable’ for her signature.”
Objector also pointed out that, because Trustee had called
Michelle a liar in a recent email exchange [(3 WA TAB 14, page
565 – Trial Exhibit 34 - January 13, 2015 email)], she was
unlikely to cooperate. Objector wrote, “I can only suggest that
you work on repairing [your relationship with her] if you expect
her cooperation.” (2 WA TAB 6, page 350 - Trial Transcript).

On or about February 17, 2015, at Petitioner’s request,

Jonathan, acting as Trustee’s ostensible agent, sent Petitioner a
list of purported assets of each Trust, A and B. The list falsely
showed that trust B had essentially no assets. In particular, the

22
list falsely indicated that Monarch was entirely a Trust A asset. 4
(2 WA TAB 6 - Trial Transcript, pages 286-287; 3 WA TAB 10,
page 497 – Trial Exhibit 19 – Discovery request including a
February 17, 2015 List of Purported Trust Assets).

In Trustee’s February 19, 2015 letter, Trustee wrote: “Since

Michelle's share is contingent on yours it is in her interest to
sign. If you both do not sign this will be taken as a statement
that you have rejected your part of the trust.” (2 WA TAB 6, page
350 - Trial Transcript; 3 WA TAB 13, page 563 – Trial Exhibit 33
- February 19, 2015 letter).

During a phone call with Trustee on March 8, 2015,

Jonathan, again apparently acting as Trustee’s ostensible agent,
in a rude and condescending manner, told Petitioner, “I hope you
don’t sign [the agreement], then we can be rid of you…That is
what I want…Everyone wants you to be kicked out.” Petitioner
documented this conversation in letters to Trustee of March 9,
2015, August 31, 2015 and an email of November 9, 2015. During
his trial testimony, Jonathan admitted animus towards

4 Such deception may be a breach of trust in and of itself as a

trustee may not obtain any advantage over a beneficiary by the
slightest misrepresentation, concealment, threat, or adverse
pressure of any kind. Jones v. Stubbs (1955) 136 Cal.App.2d 490,
499-500 [288 P.2d 939].

23
Petitioner. 5 (2 WA TAB 6, pages 329-332 - Trial Transcript; 3 WA
TAB 10 – Trial Exhibit 19, pages 503, 519, 533 - March 9, 2015
letter, August 31, 2015 letter, November 9, 2015 email).

In a letter dated March 29, 2015, Trustee wrote, “If you and
Michelle sign the agreement to modify the trust, I will have a
new single trust document prepared that preserves your and

5 Petitioner acknowledges that between 2007 and 2010, Trustee

paid for Petitioner’s defense when Petitioner was criminally
charged in an internet sting. Based on the trial court’s own
leading question to Jonathan, it wrote in the Statement of
Decision (3 WA TAB 23, page 631 – Statement of Decision; 2 WA
TAB 6, page 316 - Trial Transcript) that the hostility between the
parties is “most likely the result of David's criminal conviction for
a sexual offense involving children and his disbarment, after his
father George spent two hundred seventy thousand dollars on his
unsuccessful defense.” Objector explained to the trial court that,
while Objector does not defend his actions, which he admits were
absolutely wrong and never to be repeated, the offense did not
involve contact with any actual children. Rather, it was a sting
operation conducted in an adults only chatroom of America
Online verified by credit card as the investigating agent testified.
Further, the offense involved no physical actions (such as travel,
gift buying or making reservations) other than those performed
at the keyboard. Trustee believed in Objectors innocence so
much that he insisted that Objector reject a misdemeanor plea
offer during trial of the criminal matter. (3 WA 22, pages 622-623
– Petitioner’s Objection to Proposed Statement of Decision). In a
letter dated July 23, 2015, Trustee, who attended Petitioner’s
entire criminal trial, wrote to Objector, “I could not imagine how
they could possibly convict you! I truly regret advising you not to
take the plea deal.” (3 WA TAB 18, page 592 – July 23, 2015
letter – Trial Exhibit 39; 2 WA 6, page 213 – Trial Transcript).

24
Michelle's quarter share, albeit delayed. If you and Michelle do
not sign the agreement to modify the trust, I will change that
portion of the trust document that needs no other signature for
its change, in which case you and Michelle will be temporarily
left with a quarter share in half of the estate until such time as
that can be modified.” (WA TAB 6, page 351 - Trial Transcript; 3
WA TAB 17, page 582 – Trial Exhibit 38 - March 29, 2015 letter).

b. Trust A was Modified to Exclude

Petitioner as a Beneficiary
In 2014 through 2015, Jonathan worked with trust
Attorney Karen Mateer to Modify the revocable A Trust to
eliminate Petitioner as a beneficiary thereof. (2 WA TAB 6, 229-
233 - Trial Transcript, 3 WA TAB 7, pages 454-455, 458 – Trial
Exhibit 7, Discovery responses including Mateer billing records; 3
WA TAB 9, pages 476-479 – Trial Exhibit 18 – Discovery
response [Email exchange with Mateer]).

Trustee testified that the change was made after Petitioner

refused to sign the agreement to modify the trust. (2 WA TAB 6,
page 241; 3 WA TAB 15, page 573 - Agreement to Modify Trust).
On information and belief, this modification was executed on or
about November 4, 2015 resulting in the two trusts having
different beneficiaries. Jonathan, Debra and Terri are
beneficiaries of Trust A. All the children including Objector are
beneficiaries of trust B. (2 WA TAB 6, page 246-247 – Trial

25
Transcript, 3 WA TAB 25, page 646 – Pending Trial Court
Petition).

c. In 2016, Trustee Filed a Petition in a Failed

Attempt to Modify Trust B to Petitioner’s Detriment
On January 25, 2016 Trustee Filed a petition to modify
irrevocable Trust B pursuant to Prob Code § 15409 to, among
other things, reduce Petitioner’s $100,000 cash bequest, eliminate
Petitioner as a successor trustee and create a life estate in
Monarch for Petitioner’s sister, Debra. That Petition was
dismissed on September 27, 2016 shortly before trial. (1 WA TAB
1, pages 8, 11-12, - January 25, 2016 Petition to modify
irrevocable Trust B pursuant to Prob Code § 15409; 1 WA TAB 2,
page 16 - October 17, 2016 Request for Dismissal).

In denying approval of litigation costs for this petition as a

Trust B expenditure, the trial court’s Statement of Decision
characterized it as “needless litigation” and “obvious before the
expense of drafting, filing, and litigating a petition that it would
not succeed under the applicable law.” (3 WA TAB 23, page 634 -
Statement of Decision).

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 d. Trustee Petition for Approval of Trust B
Accounting, Which Petitioner is Appealing, Sought
Approval of Illegitimate Expenditures.
i. Litigation Costs

As mentioned, on April 24, 2017, Trustee filed a Petition for

approval of the accounting for B Trust from 2013 through 2016 (1
WA TAB 3, Page 18 - April 24, 2017 for First Account Current
and Report of Trustee of Marital Trust B).

The petition sought approval for approximately

expenditure of $27,910.66 in legal fees and costs for the above
mentioned failed 15409 petition. As noted above, the trial court
correctly rejected this expenditure as “needless litigation” and
“obvious before the expense of drafting, filing, and litigating a
petition that it would not succeed under the applicable law.” (3
WA TAB 23, page 634 - Statement of Decision);

ii. Discretionary Mortgage Payments

Jonathan, who performed the accounting, testified, “Trust

A advanced funds to pay down a mortgage that was part of Trust
B's assets” (2 WA TAB 6, pages 275, 277). In response to
discovery, Trustee stated, that he “estimates that the additional
[discretionary] principal paid was in excess of $60,000.00 [on the
Monarch mortgage].” (3 WA TAB 8, page 465 – Trial Exhibit ‘11’
– Response to Interrogatories; 2 WA TAB 6, page 364 – Trial
Transcript).

27
 Since Trust B’s share was about 80%, Petitioner estimated
that the amount being charged to Trust B at approximately
$50,000. (2 WA 6 - Trial Transcript, page 364, 1 WA TAB 3, pages
86-87,109-111 – Petition for First Account Current, Exhibits B
and C thereto [Accounting entries for Monarch mortgage
payments including discretionary payments]).

Jonathan characterized the transfer as a “changing [of] who

the debt was owed to…The difference is instead of owing the
bank, it [Trust B] owes Trust A.” (2 WA 6, Pages 277-278 - Trial
Transcript).

Testimony regarding the terms of this advance/loan from

Trust A to Trust B is both vague and contradictory.

Trustee Testified:

Q. So the only way for Trust B to repay

trust a for the advance of $126,000 is to
transfer some portion of the property
from Trust B to Trust A to pay that debt?
***
A: There would be debt, a fraction of the
value of the house then that would…pay
for that. [Counsel and Court ask for
clarification and the witness confirms] “It
would be a fraction.” [Court and counsel
ask for further clarification and the
witness confirms that the fraction would
be] “based on an appraisal made at that
time [of the first settlor’s death].”

28
(2 WA 6, pages 201-203 - Trial Transcript).

On the other hand, Jonathan, who performed the

accounting, testified:

The witness: We don't know what that

portion will be yet, because we don't
know what the fair value of the house
will be when the debts will be settled.”
* * *
The Court: There is going to be some
interest, Wouldn't there?
The witness: um, at this point the trustee
has Not required the interest payment --
interest accrual Yet. (97:21-25).
(2 WA 6, pages 260-261 - Trial Transcript).

Then, there is asterisked footnote in the accounting itself

which states: “all principal payments on the mortgage are
recorded as ‘Advances from Trust A’ to Trust B. As Trust B's
mortgage obligation decreases due to payments on the mortgage
by Trust A, the amount owed by Trust B to Trust A will increase
by an equivalent amount.” (2 WA 6 - Trial Transcript 205-206,
359; 1 WA TAB 3, Pages 119-120 – Petition for First Account
Current, Exhibits B and C thereto [Accounting]).

As Petitioner explained to the trial court, “the terms of the

debt owed by Trust B to the bank for the Monarch mortgage are
precisely defined in the mortgage paperwork. The terms of the

29
loan/debt now supposedly owed by Trust B to Trust A for the
discretionary payments (and indeed all of the advanced sums)
have never been disclosed by the Trustee.” (3 WA TAB 21, page
614; 3 WA TAB 22, page 624 – Objection to Proposed Statement
of Decision). “Because there was no notice of ‘all material facts
related,’ it is unknown what the terms of these advances were
such as interest rate, fees or how they are to be repaid as
required by Probate Code §16002(b). This exact kind of harm and
unfairness the notice provisions of Probate Code §16002(b) are
intended to prevent.” 1 WA TAB 5, page 140 – Trial Statement).

Although Trustee claimed that Objector gained a benefit by

his management of the trust and denied having a purpose of
hurting or minimizing Petitioner’s interest, he did not back these
claims up with even a single fact or a scintilla of evidence.
Accordingly, such an unsupported statement could not meet
Trustee’s burden that the expenditure and/or advances were in
the interest of the Trust B. Beneficiaries. (2 WA 6, page 178 -
Trial Transcript). Purdy v. Johnson (1917) 174 C 521, 527–528,
163 P 893; Van de Kamp v. Bank of America (1988) 204 CA3d
819, 836–837, 251 CR 530.

30
 iii. Monarch Maintenance Costs

In response to discovery, Trustee agreed that “ordinary

maintenance” is Trust A’s responsibility (“ordinary maintenance
and repairs on the Monarch property are not being charged to
Trust B. Trust A pays all of the…ordinary maintenance and
repairs on the Monarch [property]…none of which is charged to
Trust B.”). (2 WA TAB 6, page 184-185, 371 - Trial Transcript; 3
WA TAB 11, page 549 – Trial Exhibit ‘28’ – Response to
Interrogatories).

Nevertheless, the accounting charges Trust B with

$22,073.89 for maintenance of water heater, roofing, landscaping
and painting in 2013 through 2015 and $1,107.92 for plumbing in
2016 (for a total of $23,181.81) even though Trust B has no
income to pay these expenses which are a result of Trustee,
Jonathan and Debra living there. (2 WA 6, page 372 - Trial
Transcript; 1 WA TAB 3, pages 80 and 109 - Petition for First
Account Current, Exhibits B and C thereto [Accounting]).

The trial court approved the Monarch maintenance

expenditures over Petitioner’s objections that: Maintenance
expenditures for Monarch should not be approved because
Trustee admitted Trust A is responsible for them and, as the
family residence, Monarch was otherwise not productive and,
therefore, Trust B had no way of meeting those expenses. Prob

31
Code § 16007 (duty to make trust property productive). (1 WA
TAB 5, pages 146-147 – Trial Statement; 3 WA TAB 21, page 615
– Amended Closing Argument; 3 WA TAB 23, page 636 –
Statement of decision).

B. THE APPEAL HAS MERIT BECAUSE THE

UNDISPUTED FACTS DEMONSTRATE THAT THE
ACCOUNTING SHOULD NOT HAVE BEEN APPROVED
BECAUSE TRUSTEE BREACHED HIS DUTY UNDER
PROBATE CODE § 16005 NOT TO UNDERTAKE ADVERSE
TRUSTS
As Petitioner argued in the trial court, the undisputed facts
demonstrate that Trustee has not met his burden as set forth in
Van de Kamp v. Bank of America (1988) 204 CA3d 819, 836–837,
251 CR 530: “The trustee must show the use of due care,
diligence and skill with respect to trust investments. (76
Am.Jur.2d, Trusts, § 619, p. 831.) In short, [*854] the trustee
must prove it acted with the utmost good faith toward the
beneficiary and made full disclosure of all facts related to the
transactions at issue. (See Smith v. Zak (1971) 20 Cal.App.3d
785, 793 [98 Cal.Rptr. 242].)” (1 WA TAB 5, page 136 – Trial
Statement; 3 WA TAB 21, page 609 – Amended Closing
Argument).

Prob Code § 16005 entitled, “Duty not to undertake adverse

trust” provides: “The trustee of one trust has a duty not to
knowingly become a trustee of another trust adverse in its nature

32
to the interest of the beneficiary of the first trust, and a duty to
eliminate the conflict or resign as trustee when the conflict is
discovered.”

As extensively set forth above, the undisputed facts

demonstrate that Trust A and B are adverse in nature because:
1) They have different beneficiaries; 2) Trustee sought the
elimination of Trust B in its entirety though coercion and
misleading statements; 3) Trustee sought (but failed) to amend
Trust B to the detriment of Trust B beneficiaries with a petition
the trial court characterized as “needless litigation” and “obvious
before the expense of drafting, filing, and litigating a petition
that it would not succeed under the applicable law;” and 4)
Trustee sought to deplete Trust B assets through improper
expenditures including a) $27,910.66 for the above-mentioned
failed litigation; b) $50,000 in discretionary payments on the
principal of the Monarch mortgage and c) $23,181.81 in Monarch
maintenance which Trustee had agreed Trust A was responsible
for.

The sole reason cited by the trial court for overruling this
objection is: “Courts rarely remove a trustee named by the settlor
based on facts known at the time the trustee was appointed, in
this case the surviving spouse.” (3 WA TAB 23, page 637 –
Statement of Decision). However, as Petitioner explained to the
trial court: “This ignores the undisputed fact that the conflict

33
arose more than two years after the death of the first settlor
Rose, when Trustee removed Objector as a Trust A beneficiary
causing Trusts A and B to have different beneficiaries.” (3 WA
TAB 22, page 627 – Objection to Statement of Decision).

The undisputed facts are that the first settlor Rose Cohn
died on June 27, 2013. (1 WA TAB 3, page 8 – First Account
Current). Trustee testified that the change was made after
Petitioner refused to sign the agreement to modify the trust. (2
WA 6, page 241 - Trial Transcript). The agreement was first sent
to Petitioner in a letter dated January 4, 2015, more than
seventeen months after the first settlor’s death. (3 WA TAB 9 –
Trail Exhibit 18, pages 484-486 – Letter of January 4, 2015
contained; 2 WA 6, pages 329-330 - Trial Transcript).

C. THE APPEAL HAS MERIT BECAUSE THE

UNDISPUTED FACTS DEMONSTRATE THAT THE
ACCOUNTING COULD NOT HAVE BEEN APPROVED
BECAUSE TRUSTEE BREACHED HIS DUTY OF
LOYALTY UNDER PROB CODE § 16002 BY FAILING TO
GIVE NOTICE OF TRANSACTIONS BETWEEN THE TWO
TRUSTS.
Prob Code § 16002 entitled, “Duty of loyalty,”
provides:
(a) The trustee has a duty to
administer the trust solely in the interest
of the beneficiaries.
(b) It is not a violation of the duty
provided in subdivision (a) for a trustee

34
 who administers two trusts to sell,
exchange, or participate in the sale or
exchange of trust property between the
trusts, if both of the following
requirements are met:
(1) The sale or exchange is fair and
reasonable with respect to the
beneficiaries of both trusts.
(2) The trustee gives to the
beneficiaries of both trusts notice of all
material facts related to the sale or
exchange that the trustee knows or
should know.
Trustee testified that Trust A advanced to Trust B the sum
of $126,297.60 during the accounting period. (2 WA 6, page 174 -
Trial Transcript, 1 WA TAB 3, page 120 – Petition for First
Account Current, Exhibits B and C thereto [Accounting]).

Trustee testified that he did not give notice of these

advances because he did not feel he had any duty to do so. (2 WA
6, page 209 - Transcript).

Jonathan, who performed the Trust accounting, testified:

“Combining the 2015/2016 expenses, that is how we arrive at the
126,000… This is a debt in dollars. It will be paid for by
transferring a portion of the house [from Trust B] to Trust A. We
don't know what that portion will be yet, because we don't know
what the fair value of the house will be when the debts will be
settled.” (2 WA 6, page 260 - Trial Transcript).

35
 The Statement of Decision acknowledges that “the payment
of expenses of trust B [were made] with a loan from Trust A,” yet
concludes that: “No property was exchanged between the two
trusts” and therefore “Prob Code § 16002 does not apply.” (3 WA
TAB 23, page 633 – Statement of Decision).

Petitioner argued that this conclusion is inconsistent with

Probate Code § 62 which provides: “‘Property’ means anything
that may be the subject of ownership and includes both real and
personal property and any interest therein.” It is well settled
that “debt is an asset of the creditor, in the same way in which
any tangible property he owns is an asset.” Jurisdiction Over
Debts for the Purpose of Administration, Garnishment and
Taxation, Harvard Law Review, Volume XXXI, 1917-1918 at page
912. Obviously, debts are regularly bought and sold. Thus, just
as obviously, debts may be the “subject of ownership” within the
meaning of Probate Code § 62. Therefore, the conclusion is
inescapable that the advances made by Trust A in exchange for a
debt owed by Trust B is an “exchange of trust property between
the trusts” within the meaning of Prob Code § 16002(b). (2 WA 6,
pages 363-364 - Trial Transcript; 3 WA TAB 21, pages 611-612 –
Petitioner’s Amended Closing; 3 WA 22, page 623 – Petitioner’s
Objection to Proposed Statement of Decision).

36
 Nevertheless, the trial court overruled Petitioner’s
objection on the sole and erroneous basis that the notice
requirement of Prob Code § 16002(b) were not triggered because:
“No property was exchanged between the two trusts.” (3 WA TAB
23, page 633 – Statement of Decision).

D. THE COURT SHOULD ISSUE AN

IMMEDIATE STAY OF PROCEEDINGS UNDER
CALIFORNIA CODE OF CIVIL PROCEDURE §  916 TO
PREVENT SIGNIFICANT UNDUE CONSUMPTION OF
JUDICIAL, TRUST AND PARTY RESOURCES
A writ of supersedeas may be ordered where the trial court
denies a discretionary stay ( Reed v. Superior Court (2001) 92
Cal.App.4th 448, 455 [111 Cal. Rptr. 2d 842]), or as a remedy to
enforce an automatic stay (Chapala Management Corp. v.
Stanton (2010) 186 Cal.App.4th 1532, 1542 [113 Cal.Rptr.3d 617]
["'Supersedeas' is the appropriate remedy for a refusal to
acknowledge the applicability of statutory provisions
automatically staying the judgment while an appeal is
pursued."]). As noted above, during a trial court hearing on
November 19, 2018, the trial court refused to issue the requested
stay instructing petitioner to take the matter up with this court.
The trial court set trial on the matter for February 19, 2019.
CCP § 916(a) provides in relevant part, “…the perfecting of
an appeal stays proceedings in the trial court upon the judgment
or order appealed from or upon the matters embraced therein or

37
affected thereby…” CCP § 916(a) (Emphasis added). Petitioner
filed his Notice of Appeal on October 9, 2018 (3 WA TAB 26 -
Notice of Appeal)

The below chart comparing the Statement of Decision (3

WA TAB 23, page 631) in the accounting (which is the litigation
now under appeal) with Petitioner’s pending trial court petition
(3 WA 25, page 656 – Pending trial court petition) unequivocally
demonstrates that there are common issues “embrace[d]” therein
or affected thereby.”

STATEMENT OF PENDING TRIAL

DECISION WHICH IS
UNDER APPEAL
“No property was
exchanged between the two
trusts” and therefore “Probate
Code § 16002 does not apply.”
(3 WA TAB 23, page 633).
“Objection 6: ‘Trustee
maintained the trusteeship of
two different trusts with
interests adverse in nature in
violation of Probate Code §
COURT PETITION
ALLEGATIONS
“Trustee violated his
duty to Petitioner as a Trust
B beneficiary by violating
Probate Code §§16002 (duty of
loyalty)…in that…Trustee did
not give notice of advances
made from Trust A to Trust B
and the terms thereof as
required under Probate Code
16002(b).” (3 WA 25, pages
651-652).
(Para 24) “Trustee
violated his duty to Petitioner
as a Trust B beneficiary by
violating Probate Code §16005
(duty not to undertake

38
16005 even after being
informed of the conflict.’
Courts rarely remove a trustee
named by the settlor based on
facts known at the time the
trustee was appointed, in this
case the surviving spouse. The
trustee would not be removed
absent evidence of some abuse
or conflict.’” (3 WA TAB 23,
page 637).
“OBJECTION 3:
Applying the advanced funds to
expenditures which were not
legitimate, reasonable or
necessary trust expenses
including:
* * *
OBJECTION 3B:
Approximately $60,000 in
discretionary payments to the
principal of the mortgage on
Monarch intended to divest
Trust B of its ownership
interest thereof…
***
The settlor is the beneficiary of discretionary payments on
the trust. He can pay the
expenses of the Trust asset and principal.” (3 WA 25, pages
has no obligation to make it
productive.;
***
39
adverse trust)…Even after
being informed of the conflict,
Trustee maintained the
trusteeship of both Trusts A
and B even though the two
trusts had interests “adverse
in its nature” in violation of
Probate Code § 16005.” (3 WA
25, pages 651-652).
“Trustee violated his duty to
Petitioner as a Trust B
beneficiary by violating
Probate Code §§ 16045 –
16054 (Prudent Investor Rule)
in that…Trustee used these
advances to pay illegitimate
expenses including attorney
fees for the failed 2016
petition, maintenance fees for
Monarch which were a result
of Trustee and the other heirs
living there and which
Trustee agreed were Trust A’s
responsibility; and
Monarch’s mortgage
651-652).
OBJECTION 3C: "$22,000 for
maintenance on Monarch even
though Trustee acknowledged
in a sworn statement that
Trust A is responsible for those
expenses and has otherwise
failed to make 25 Monarch
‘productive’ as required by
Probate Code § 16007.
***
…The expenses in the
accounting are for
extraordinary expenses for
repairs to a water heater, roof,
a dead tree, house painting
and a leaky pipe. The trustee is
within his rights to charge
Trust B for its proportional
share of all expenses but he
has not done so in these
accountings.” (3 WA TAB 23,
pages 635-636).

CCP § 916 divests the trial court of all jurisdiction over an

appealed judgment and any matters embraced by or affected by
that judgment. Hollaway v. Scripps Memorial Hosp. (1980) 111
CA3d 719, 723, 168 CR 782]. Whether a matter is embraced or
affected by a judgment or order within the meaning of CCP § 916
depends on whether postjudgment (or postorder) proceedings on
the matter would lessen the effectiveness of the appeal. If so, the
proceedings are stayed; if not, the proceedings are permitted.
Varian Med. Sys., Inc. v. Delfino (2005) 35 C4th 180, 189, 25

40
CR3d 298, 106 P3d 958; Elsea v. Saberi (1992) 4 CA4th 625, 629,
5 CR2d 742].

A trial court proceeding affects the effectiveness of an

appeal if the possible outcomes on appeal and the actual or
possible results of the proceeding are irreconcilable. Varian
Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180, 190, 106 P.3d
958, 965, 25 Cal. Rptr. 3d 298, 306.
In the instant case, it is virtually certain that in the trial
which will repeat its erroneous ruling that no breach of trust
occurred even though it is undisputed that Trustee did not
comply with the notice requirements of Prob Code § 16002(b) in
advancing from Trust A to Trust B $126,297.68 to cover contested
expenses which Trust B must now repay by transferring an
interest in Monarch to Trust A. Please recall the sole basis for the
ruling was that “[n]o property was exchanged between the two
trusts” (1 WA TAB 23, page 633 – Statement of Decision) even
though Probate Code § 62 provides: “‘Property’ means anything
that may be the subject of ownership and includes both real and
personal property and any interest therein.” Surely the funds
advanced by Trust A and the security interest on Trust B’s debt
to Trust A both meet this definition.

Likewise, it is virtually certain that the trial court will

continue to erroneously hold that Trustee did not violate the Prob
Code § 16005 prohibition on holding the trusteeship of two

41
adverse trusts even though the undisputed facts (as set forth at
length above) overwhelming demonstrate the adverse nature of
Trusts A and B. Please recall that the sole reason cited by the
trial court for overruling this objection is: “Courts rarely remove a
trustee named by the settlor based on facts known at the time the
trustee was appointed, in this case the surviving spouse.” (1 WA
TAB 23). However, it is undisputed that the conflict of interest
arose more than 18 months after the death of the first settlor.

Since there can be no doubt that both the instant appeal

and the pending trial court petition “embrace[]” these common
issue and are mutually “affected thereby” (CCP § 916(a)), it is
respectfully requested that this court issue the requested
immediate stay on all trial court proceedings pending the
resolution of Petitioner’s appeal on the merits.

Dated: December 24, 2018

_________________________________
David Cohn
Petitioner in Pro Per

42
 CERTIFICATE OF WORD COUNT
Pursuant to California Rule of Court 8.204(c)(l), I certify that the
attached brief is proportionately spaced, using Century School
Book 13-point type, and contains 8,147 words.

43