Case Number: BC588941 Hearing Date: May 05, 2016 Dept: 1

#2 – Roe, et al. v. Daniel (BC 588 941); In re Catherine L. Tribe Trust (BP 165 035); Roe, et al. v. Harris (BC 597 956); Roe, et al. v. Daniel, et al. (BC 607 028)

On November 19, 2015 this court considered a Notice of Related Case filed on October 15, 2015 by Plaintiffs Frederick Roe, individually and as successor-in-interest to Catherine Tribe, and Fred A. Roe Enterprises, LLC, that sought to relate unlimited jurisdiction civil law cases BC 597 956 and BC 588 941 with probate case BP 165 035. The court declined to consider the Notice because the Notice had not been filed in all cases listed and also there was no proof that service of the Notice had been effected on all parties in all pending cases listed, as required by CRC 3.300(d).

Similarly on March 17, 2016, this court considered (1) a Notice of Related Case filed on January 29, 2016 by Defendant Gary Daniel in cases BC 588 941 and BC 607 028 and by Defendant/Trustee Kimberly Harris in BP 165 035, that sought to relate unlimited jurisdiction civil law cases BC 597 956 and BC 588 941 with probate case BP 165 035, and (2) a Notice of Related Case filed on February 11, 2016 by Petitioners Greg Roe and Cindy McDermott seeking to relate civil law cases BC 588 941, BC 607 028, and BC 597 956 with probate case BP 165 035. Again, the court declined to consider each Notice for noncompliance with CRC 3.300(d)’s filing and notice requirements.

On April 5, 2016 Plaintiffs Frederick Roe, individually and as successor-in-interest to Catherine Tribe, and Fred A. Roe Enterprises, LLC, filed a Notice of Related Case in civil law cases BC 588 941, BC 607 028, and BC 597 956 (with proofs of service separately filed the same day), and on April 4, 2016 Petitioner Cindy McDermott filed a similar notice in probate case BP 165 035, all seeking to relate those three civil law cases with that probate case. Additional information is provided at Attachment 1H, indicating the four cases involve a series of interrelated transactions among Frederick Roe, Catherine Tribe, Gregory Roe, Cindy McDermott, Fred A. Roe Enterprises LLC, Catherine Tribe Enterprises LLC, Salt Lake Avenue Trailer Park LLC, Catherine L. Tribe Annuity Trust, Gary Daniel, and Kimberly Davis, involving similar issues of law and fact, and thus separate trials could result in inconsistent rulings and duplication of judicial resources.

No opposition has been received.

Whether cases that involve either a probate or family law matter are related is a question determined by Department 1. LASC Local Rule 3.3(f)(2). Cases are related when they (1) involve the same parties and are based on the same or similar claims, (2) arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact, (3) involve claims against, title to, possession of, or damages to the same property, or (4) are likely for other reasons to require substantial duplication of judicial resources if heard by different judges. CRC 3.300(a).

In order of filing, the cases sought to be related are:

• In re Catherine L. Tribe Trust (BP 165 035) – filed July 23, 2015 when beneficiaries Greg Roe and Cindy McDermott filed a petition to compel accounting, remove as purported trustee Kimberly Harris, and for surcharge. Petitioners allege that Harris was not named as the legitimate trustee but she has been acting as such, and that she improperly exercised control over the Trust’s assets, including $237,000 in assets “loaned” to unknown others and $359,000 in assets “loaned” to herself; further, they threaten to sue the named financial institutions that gave Harris this control. Petitioners seek to have Harris provide an accounting, to have her removed as trustee and themselves named as co-trustees, and to order Harris to return all Trust property and records. On September 28, 2015 Harris brought a competing ex parte application for an order compelling release of trust funds to her, arguing that Petitioners’ threat has resulted in the financial institutions denying Harris access to the trust funds from which she would normally make monthly beneficiary distributions to Petitioners. Also on September 28, 2015 Roe brought an ex parte application to suspend Harris. On April 5, 2016 Petitioners filed a petition for an order voiding the Trust, surcharging Harris as trustee, and disqualifying Harris as a beneficiary, based on arguments that at the time Tribe executed the trust documents she lacked capacity, was subject to undue influence, and the Trust was the product of fraud by Harris and her father Gary Daniel. The case is assigned to probate law Department 79, where Petitioners’ initial petition was denied without prejudice on April 13, 2016; Roe’s and Harris’ September 28, 2015 petitions are currently set for hearing May 24, 2016; and Petitioners’ April 5, 2016 petition set for hearing on July 26, 2016.

• Roe, et al. v. Daniel (BC 588 941) – also filed July 23, 2015 when Frederick Roe, individually and as successor-in-interest to Catherine Tribe (his now-deceased sister), and Salt Lake Avenue Trailer Park sued Gary D. Daniel for elder abuse, foreclosure of trust deed, conversion, and fraud. Plaintiffs allege that Defendant – an enrolled agent who was providing accounting, bookkeeping, and other financial services to Plaintiffs and the mobile home park they inherited from their parents in 1985 – borrowed $100,000 from them in May 2001 and has not made any payments to date on the note. Also, Defendant advised plaintiff Roe beginning in 2004 that he would save taxes by investing $364,579 in a Roth IRA for the benefit of Defendant, but Roe has not received any such tax or other financial benefit, and believes Defendant intends to keep the funds. Plaintiffs seek to recover all these funds and also to foreclose on Defendant’s property located at 1530 Pleasant Crest Lane in La Habra Heights, which property secured the $100,000 promissory note. The First Amended Complaint filed September 28, 2015 adds Fred A Roe Enterprises LLC and Catherine Tribe Enterprises LLC as plaintiffs and adds causes of action for breach of fiduciary duty and common counts, alleging that in 2004 Defendant also persuaded them to create three new companies, to transfer ownership and revenues of the mobile home park into those entities, and to allow Defendant to temporarily transfer funds into his own possession, all purportedly to minimize their tax liability, when in reality Defendant had created his own 20% interest in the entities and took at least $364,579 from the mobile home park’s income for his own benefit, without authorization. Plaintiffs now seek damages for the diverted funds, for the fair market value of his claimed interest in the entities ($400,000), and treble damages. The case is assigned to Department 52 of the Stanley Mosk courthouse, where a status conference is currently scheduled for May 16, 2016.

• Roe, et al. v. Harris (BC 597 956) – filed October 15, 2015 when Frederick Roe, individually and as successor-in-interest to Catherine Tribe (his now-deceased sister), and Fred A. Roe Enterprises LLC sued Kimberly Harris for elder abuse, breach of fiduciary duty, conversion, et al. A First Amended Complaint was filed February 16, 2016 and Second Amended Complaint on April 4, 2016, adding five banking entities as defendants. Plaintiffs allege that Defendant’s father Gary Daniel had held himself out to be a CPA and expert in accounting, taxation, and finance and began handling all such matters for Roe and Tribe. Inter alia, in 2004 Daniel persuaded them to create three new companies, to transfer ownership and revenues of the mobile home park into those entities, all purportedly to minimize their tax liability, when in reality Defendant had created his own 20% interest in the entities. When he learned that both Roe and Tribe intended to leave everything to Roe’s children Greg Roe and Cindy McDermott, Daniel encouraged Roe and Tribe to use Defendant (his daughter Kimberly Harris) to administer the trusts and make the payments, and in 2006 Daniel created for Tribe the Catherine Tribe Annuity Trust, naming Defendant as successor trustee and contingent beneficiary. In 2008 Daniel and Defendant then altered the terms of the trust to give Defendant a current share approximating that of Greg and Cindy. Tribe died in 2009, after which Daniel and Defendant “handled everything,” presenting Roe with checks to sign for transfer of funds for the distributions. The named banking defendants allowed Defendant to seize the Trusts’ accounts and exercise control thereon, raiding the assets. In September 2015 plaintiff Roe discovered the true implications of the acts of Harris and Defendant when he had new counsel review everything and at that time also learned that Defendant had been depleting trust assets by taking trustee fees, taking distributions as a beneficiary, and loaning herself at least $1,129,489 from the trust’s assets for her own benefit. Plaintiffs seek compensatory, treble, and punitive damages for the diverted trust funds. The case is assigned to Department 28 of the Stanley Mosk courthouse, where a status conference is currently scheduled for June 21, 2016.

• Roe, et al. v. Daniel, et al. (BC 607 028) – filed January 13, 2016 when Frederick Roe, individually and as successor-in-interest to Catherine Tribe (his now-deceased sister), Salt Lake Avenue Trailer Park, Fred A. Roe Enterprises LLC, and Catherine Tribe Enterprises LLC sued Gary D. Daniel and Kimberly Harris for breach of fiduciary duty, conversion, fraud, common counts, etc. Plaintiffs allege that defendant Daniel held himself out to be a CPA and expert in accounting, taxation, and finance and began handling all such matters for Roe and Tribe. Inter alia, in 2004 Daniel persuaded them to create three new companies, to transfer ownership and revenues of the mobile home park into those entities, and to allow Defendant to temporarily transfer funds into his own possession, all purportedly to minimize their tax liability, when in reality Defendant had created his own 20% interest in the entities and took at least $364,579 from the mobile home park’s income for his own benefit, without authorization. When he learned that both Roe and Tribe intended to leave everything to Roe’s children Greg Roe and Cindy McDermott, Daniel encouraged Roe and Tribe to use his daughter Kimberly Harris to administer the trusts and make the payments. In 2008 Daniel and Harris then altered the terms of the trust to give Harris a share approximating that of Greg and Cindy. After Tribe’s 2009 death, Defendants began systematically raiding and converting trust assets through purported “loans,” without knowledge or consent of Frederick, Greg, or Cindy. Plaintiffs seek compensatory, treble, and punitive damages for the diverted funds and damages for the fair market value of Daniel’s claimed interest in the entities. The case is assigned to Department 28 of the Stanley Mosk courthouse, where a case management conference is currently scheduled for May 26, 2016.

As seen above, all four cases involve decedent Catherine Tribe’s Trust and/or her successors in interest on one side (particularly her brother, Frederick Roe) and, on the other, Gary Daniel and/or his daughter Kimberly Harris. All require determination of the same factual and legal issues, in that all four cases involve allegations that (1) Gary Daniel fraudulently diverted money and ownership interests from Tribe and Roe through the exercise of undue influence and fraud; he set up Tribe’s Trust in 2006 that gave his daughter Kimberly Harris a successor trustee and contingent beneficiary position; he amended the Trust in 2008 to make Harris an equal beneficiary; and took these actions without authorization and although he was not a CPA or tax expert as alleged; and that (2) Kimberly Harris has acted improperly in her purported position as successor trustee of the Trust, including using significant amounts of Trust assets for her own benefit. Accordingly, there would be substantial duplication of judicial resources if the matters continue proceeding before different judicial officers and these four cases are “related” as defined by CRC 3.300(a).

It is further appropriate to relate the civil law cases into a probate courtroom because the underlying issues in those cases – regarding the validity of the formation and amendment of the Catherine L. Tribe Trust, and whether or not Harris took actions that justify removing her as trustee and requiring accounting and surcharge – fall within the probate law courts’ exclusive jurisdiction over the internal affairs of a trust. See, e.g., Probate Code §§ 17000, 17200; see also Saks v. Damon Raike & Co. (1992) 7 Cal. App. 4th 419, 430.

Accordingly, the court relates BC 588 941, BC 597 956, and BC 607 028 with case BP 165 035 and orders them reassigned to probate law Department 79. All future hearings currently set in BC 588 941, BC 597 956, and BC 607 028 are hereby advanced and vacated.