Suit Against Guardians Filed in California Court by Janet Phelan

Janet C. Phelan, Objector in propria personam
258 A Street #1-15
Ashland, OR 97520
Telephone: (647) 456-1618
(323) 515-4889

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF RIVERSIDE - CENTRAL DISTRICT
PROBATE DIVISION

No.: RIP080974
AFFIDAVIT AND VERIFIED COM-PLAINT FOR CIVIL DAMAGES OF BENEFICIARY JANET C. PHELAN IN SUPPORT OF PETITION FOR SUR-CHARGE OF TRUSTEE MELODIE Z. SCOTT (Cal. Prob. C. §§17,200(b)(7, 11, 12), 855, 856, 859)

Comm. Michael McCoy
Department:E-2
Date:
Time:

AFFIDAVIT OF JANET C. PHELAN

I, Janet C. Phelan, do hereby declare:
1. I am an adult daughter of James and Amalie Phelan.
2. I am a beneficiary of the James R. and Amalie M. Phelan Family Trust.
3. I am a successor in interest of the decedents.
4. I have personal knowledge of the facts asserted herein and if called to testify to the following, I could and would competently so testify.

PROCEDURAL HISTORY

5. Melodie Z. Scott was designated as Successor Trustee for the James R. Phelan and Amalie M. Phelan Trust on January 27, 2003.

6. I was not served with notice of the hearing.

7. Melodie Scott was surety bonded by American Contractors Indemnity for $586,000 in 2004 indemnifying her for liability as trustee of the Phelan Trust in a lawful manner. The bond number is 425199.

8. Melodie Scott is being removed from the Trust, due to her license being denied by the California State Professional Fiduciary Board after an administrative determi-nation that she made false statements on her application.

9. On information and belief, Ms. Scott is also under criminal investigation by the San Bernardino Grand Jury, as reported in the Los Angeles Times article of February 15, 2009 (Exhibit 1).

10. Substantial evidence of numerous acts of extrinsic fraud, conversion, breach of fi-duciary duty, concealment, material misrepresentation and conspiracy by Melodie Scott, during her tenure acting as trustee for the Phelan Family Trust, and by her attorney, J. David Horspool, was supported by petitioner in her April 8, 2008, April 25, 2008 and April 29, 2008 affidavits.

NEWLY DISCOVERED EVIDENCE OF MISAPPROPRIATION AND THEFT

11. Further recent investigation has uncovered shocking additional evidence of fraud, theft, and misrepresentation to the court have come to light. The evidence of these acts is as follows ¶¶12-15):

12. Bank statements of Redlands Community Bank, newly provided to me by an in-formant on or about April 2009 disclosed that Melodie Scott debited an unreported $30,000 from the account she managed for my mother on May 24, 2004, twenty days after my mother’s death (Exhibit 2). I do not recall nor can I find any record of Melodie Scott ever having declared these debits to the court or included them in an accounting.

13. In May 2009, the private investigation firm, Apex Strategies, acting on my behalf, recently searched and uncovered records disclosing that Melodie Scott has been re-questing Redlands Community Bank to issue “Counter checks.” A recently ob-tained example of this is provided in Exhibit 3. According to this record, on 5/11/09, Melodie Scott had the bank issue a counter check for $1000. These “Counter checks” by their very nature will not show up in sequence in her account-ings and also enable her to embezzle or otherwise defraud the Trust and the court and obscure her actual debits from the Trust. This “Counter check” was issued on The Amalie Phelan Trust Account, which is the parent account. As the parent trust was set up by Melodie Scott to fund the daughter trusts, there is no reasonable ex-planation for a debit of $1000. The only regular bill paid by the parent trust is the $135 monthly storage bill for the remainder of my mother’s belongings.

14. As evidenced by non-sequential and missing check numbers in her reporting, Ms. Scott has repeatedly written other checks on the trust account that were not re-ported to the court. I have repeatedly requested information, at least 5 times during the life of the trust, as to what checks were written that were not recorded. Exhibit 4 is the check I previously pointed out to the court was missing in her own general ledger and accountings to the court, identified as check number 667, issued for $4,546.33. Scott never reported this check to the court nor listed it in her own general ledger. There are many other missing check numbers that have not yet been accounted for. Since the Trustee is obviously writing checks and not recording them into her ledger, this also constitutes fraud and fraud upon the court. The trus-tee and her attorney have not responded to my requests for explanation, a violation of Probate Code 16060.

15. A legal demand for documents was issued on April 13, 2009 (Exhibit 5) following informal requests for records (Exhibits 6 and 7). Attorney Horspool refused the re-quest. Given the proven pattern of evidence that Ms. Scott is apparently misappro-priating funds by writing unreported checks and counter checks from the trust ac1. count for her own personal enjoyment and enrichment and/or conversion, I believe and allege that there exists a reasonable likelihood that these additional documents if produced on discovery, would reveal additional fraud and theft.

I hereby state under penalty of perjury under the laws of the State of California that the above stated facts are true and correct to the best of my knowledge.

Affirmed this 30th day of May 2009, at Toronto, Ontario, Canada.

Janet C. Phelan

COMPLAINT FOR CIVIL TORT DAMAGES (Cal. Prob. C. §855, et seq)

COUNT I, NEGLIGENCE

(Against both Melodie Z. Scott and J. David Horspool)

1. Plaintiff incorporates and realleges herein by reference the allegations set forth in ¶¶1-15 of this petition.

2. As a result of the negligence of the defendants, plaintiff was hurt and injured in her health, strength, and activity, sustaining injury to her person, all of which have caused and continue to cause plaintiff great physical and mental pain and suffering.

3. Because of such injuries, defendants have incurred general damages and special damages including medical and allied expenses all in an amount according to proof as well as damages for the intentional infliction of extreme emotional distress.
COUNT II, BREACH OF FIDUCIARY DUTY --
Misappropriation and Theft of Trust Monies, Failure of Duty of Trustee to Provide for Beneficiary’s Minimal Basic Needs, Pain and Suffering, Personal Injury, Failure of Fiduciary to Administer Trust Impartially and fairly to Plaintiff
(Against Respondents Scott and Horspool)

4. Plaintiff realleges and incorporates herein by reference the allegations set forth in §§1-18 of this petition.

5. Issuing checks and failing to report them to the court. Evidence of missing check #667 is again provided to the court as Exhibit #4. The court will note that this check was never listed in her general ledger for that year, 2004, attached as Exhibit #8. Other skipped check numbers include #126, 127, 128, 129 (from the 2002 ledger, Exhibit #9), Check #183 and #225 (also from the 2002 ledger). Jumping to 2004, the following numbers constitute skipped check numbers, and go to probable theft and/or fraud on the part of Trustee Melodie Scott--#569, 650, 663 and, of course #667. The evidence provided the court of these skipped check numbers is only partial, given that I do not have the cooperation of Melodie Scott in disclosing the financial records of the Trust.

6. Ms. Scott and Mr. Horspool, knowingly, intentionally and with malice and oppression acting in their roles as trustee and attorney for trustee of the Phelan Family trust, refused to disburse me trust monies, which the court had authorized and were necessary for my survival. These refusals were based on fraudulent declarations in support of Restraining Orders, resulting in total impoverishment and homelessness of this beneficiary. The court need only review the accountings filed with the court from 2002 until 2004 to note that payments from the Trust to this beneficiary were halted in June of 2002 and did not resume until October of 2003. The court will note that these payments again ceased in December of 2003,per Melodie Scott’s declarations to the court in thefiled accountings and did not resume until October of 2004. The court should be made aware that this beneficiary lost 80 pounds in one year because of lack of money for food due to economic hardship inflicted on me through the withholding of trust monies, which had been authorized to be disbursed by the court on December 18, 2001. Attorney Horspool was advised of the lack of money for food in the fall of 2002 and refused to respond, ignoring my most basic needs to have money for food. Scott has episodically denied me funds for medical expenses as well, and has currently refused to pay for medical expenses for one year. The Phelan Family Trust specifically states that medical expenses should be paid by the Trust, if not paid by insurance or other public benefit programs.

7. Double Damages. As provided by Cal. Prob. Code §859, Petitioner is entitled to claim double damages, and by Cal. Prob. Code §856 is entitled to have the respondent trustee’s surety bond remanded to petitioner as relief from these damages.
COUNT III. NEGLIGENT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS, DENIAL OF PARENT-CHILD CONSORTIUM, DEPRIVATION OF FAMILIAL ASSOCIATION (FIRST AMENDMENT)
(Against both Scott and Horspool)

8. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-22 of this petition.

9. Ms. Scott and Mr. Horspool knowingly, intentionally and with malice and oppression actively interfered with my relationship with my mother by applying for and obtaining Restraining Orders based upon fraudulent declarations of non-existent behavior on my part.

10. A parent has a "fundamental liberty interest" in "the companionship and society of his or her child, Kelson v. City of Springfield, 767 F.2d 651, 654-55 (9th Cir.1985) (citing Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)).

11. Moreover, "the First Amendment protects those relationships, including family
relationships, that presuppose 'deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life.' " Board of Dir. v. Rotary Club, 481 U.S. 537, 545 (1987) (quoting Roberts v. United States Jaycees, 468 U.S. 609, 619-20 (1984)); see also Conti v. City of Fremont, 919 F.2d 1385, 1388-89 (9th Cir.1990).

12. Mrs. Scott failed to inform me of my mother’s death until two weeks after her passing, although she and Mr. Horspool were contacted a number of times by me and by others on my behalf during the period from late April 2004 until I was finally told that my mother had died. I was informed of this in late May of 2004, after she had been buried without my notification. The brutality of their withholding this information from me is consistent with their prior and subsequent acts of intentional and malicious infliction of emotional harm.

13. Defendants had actual and constructive knowledge of their constitutional violations and failed to correct deprivations and errors within a reasonable time.

14. As a direct and proximate result of defendants’ breach, petitioner has suffered and will continue to suffer mental distress, emotional distress, discomfort, annoyance, anxiety, physical injuries, medical costs, illness, pain and suffering, lost opportunity, property damage, lost income, all to the damage in an amount to be determined at hearing and in an amount within the jurisdictional limit of this court.

15. The conduct of the respondents and trustees, in failing to correct these wrongs when they had sufficient time was knowing, intentional, and willful, and was done with full knowledge of the discomfort, annoyance and injury that these privations would cause petitioner.

16. Punitive Damages. In maintaining the wrongful actions, defendants acted with full knowledge of the consequences thereof and of the damages being caused to plaintiff. Notwithstanding this knowledge, defendants, in conscious disregard of plaintiffs’ health and safety, failed to remedy their errors. This failure was willful, oppressive and malicious. Plaintiff is therefore entitled to punitive damages against the defendants, and each of them, in an amount to be determined by the court.
COUNT IV. SLANDER AND DEFAMATION OF CHARACTER
(Against Horspool)

17. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-31 of this petition.

18. Libelous defamation on my character by attorney Horspool. This is cited in paragraph 2 (page 2) of Amendment to Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott, and provided in Exhibit 1 of that document and again on page 3 ¶5, supported by Exhibit 2 of that document, referencing Horspool’s response to my article “Probate Murders—Part Two.”

19. Horspool again attacked my character alleging in his Petition to Accept Resignation of Trustee and for Appointment of Successor Trustee, filed February 26, 2009, in paragraphs 2, 3 and 4, by falsely stating that the Trustee must resign because of my alleged “mental illness,” rather than because of her license being denied by the State of California.
COUNT V. FRAUD, MISREPRESENTATION, THEFT, UNJUST ENRICHMENT AND WRONGFUL CONVERSION
(Against both Scott and Horspool)

20. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-34 of this petition.

21. Documentation supporting my allegations of perjury and fraud upon the court by Ms. Scott and Attorney Horspool in applying for the June TRO was supplied to the court several times, and most recently in my Objection to the Resignation of Melodie Scott, filed April 6, 2009, contained in Exhibit 3 of that document. Exhibit 2 is the medical record of my mother’s hospitalization which proves incontrovertibly that my mother received surgery as a result of my transporting her to the hospital in June of 2002.

22. Failing to do an inventory and appraisal of the estate assets, thus facilitating Ms. Scott’s theft of my mother’s belongings.

23. In her Supplement to First Accounting, filed September 20, 2006, Scott admits to neglecting to do the inventory and appraisal, thus violating one of her primary duties. Going to documentation of continued acts of fraud, Melodie Scott had previously billed the Trust 4.6 hours at $85.00 an hour on 2/06/03 and a meeting with Attorney Horspool for same at .75 hours at $85.00 an hour—documented by Probate Examiner Charles Mayr—in Exhibit 12 of April 8, 2008 Declaration Of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott.

24. Stealing items from my mother’s storage space. The court was provided my police report to the Redlands Police Department as Exhibit 3 of the April 25, 2008 Amendment to Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott. The Redlands Police informed me the police report was forwarded to the California Attorney General’s Office. As there is no record of such a report in the system at the AG’s office and no file number for such a complaint on file at the AG’s office, it would appear that the report was lost or otherwise misappropriated.

25. Refusing me access to the storage space to document the theft.

26. Fraudulent misrepresentations of the record to the court as to the decision made by Judge Lefkowitz in Santa Monica Superior Court concerning Horspool’s failed application for court costs in court proceedings. The court was provided Judge Lefkowitz’s decision as Exhibit 15 to the previously cited April 8, 2008 Declaration of Janet Phelan.

27. Concealing the factual nature of trust assets from me and from the court (reference paragraph 11 of this document).

COUNT VI, FRAUD UPON COURTS AND UNDUE INFLUENCE

(Against both Scott and Horspool)
28. Plaintiff realleges and incorporates herein by reference the allegations set forth in ¶¶1-42 of this petition.

29. Petitioner believes from substantial discovered evidence that this case has been fraught with fraud upon the courts and evidence of undue influence. I refer the court to the record of the August 1, 2002 “hearing” on my first TRO. The hearing did not take place, as previously documented to the court as Exhibit 4 and Exhibit 5 of my Objection to the Resignation of Melodie Scott on file with the court and I was restrained from my mother without due process by Judge Stephen Cunnison. Judge Cunnison again violated my rights as a U.S. citizen to make complaints to justice agencies in the order to further restrain me from making police reports, reports to the District attorney, FBI and other agencies which he signed on October 8, 2002. Judge Selim Franklin approved the accountings on November 18, 2004, wherein attorney Horspool had filed as a confidential bank record the May, 2004 Community Bank of Redlands statement, which reveals the aforementioned thirty thousand dollar theft. The fact that the Judge had access to this statement and still approved the accountings supports allegations of undue influence. On June 27, 2002, Commissioner Burgess (formerly Ettinger) issued a gag order on me, which was never mentioned in court, nor was I ever served notice with the gag order. Burgess again issued a void order on April 30, 2008, when she overrode my objection that attorney Horspool not be granted permission to go into the Trust and retrieve his court costs, as these had previously been denied by Judge Lefkowitz in Santa Monica Superior Court. This also substantiates my claims of undue influence.

VERIFICATION

I, Petitioner Janet C. Phelan, do hereby declare under penalty of perjury that I have read the foregoing complaint and petition for surcharge and the facts stated therein are true and correct, based on my direct first hand personal knowledge.
Affirmed this 30th day of May 2009, at Toronto, Ontario, Canada.

Janet C. Phelan, Petitioner in propria persona

[1] Judicial Notice and Objections to Second Accounting by Trustee Melodie Scott, file stamped April 8, 2008, Declaration of Janet Phelan in Support of Objections to Second Accounting by Trustee Melodie Scott, filed April 8, 2008 and in Amendment to Declaration of Janet Phelan in Support of Objection to Second Accounting by Trustee Melodie Scott, filed on April 25, 2008.[1] Redlands Community Bank Acct. No. 21661627, Amalie M. Phelan Trust, Melodie Z. Scott, Trustee.
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It is typical Modus Operandis for attorneys and guardians to block all funds to the family of their victims as to make it impossible for victims and their families to hire legal counsel.
Then they will continue to discredit and villify the victims families who are fighting for their lives and that of their love ones.

We wish Janet Phelan all the respect and consideration she deserves from the California Riverside District Probate Division.

I encourage all to go to their website http://www.riverside.courts.ca.gov/probate.htm
and kindly and respectfully remind them that the courts exist for the benefit of the citizens and not vice versa, please take a few minutes and communicate to them your concern with the fact that so many people are becoming increasingly saddened and discouraged by the lack of moral courage and ethics in our judicial system.

Lets light up that switchboard with Regular mails and phone calls
Riverside Probate Court
4050 Main StreetRiverside, Ca. 92501
951.955.1970

Thank You
Ray Fernandez
Editor