Attorney Defies Subpoena in Alleged “Murder-For-Money” Scheme

A San Bernardino County attorney has defied a court issued subpoena mandating that he turn over bank records which would allegedly implicate him in a “murder-for-money scheme.” The account in question belonged to a conservatee and was subsequently taken over by the attorney’s client, conservator Melodie Scott.

Attorney J. David Horspool has consistently denied knowledge of any Bank of America account pertinent to Amalie M. Phelan. However, records already obtained show that Horspool and Scott drilled the safety deposit box held in Amalie Phelan’s name at the very Bank of America branch location where the account was situated, calling into question his profession of ignorance.

According to Janet Phelan, Horspool and Scott withheld from the court all records pertaining to this account and also withheld information about two Bank of America VISA cards and used these to pay off Judith Phelan, Amalie’s eldest daughter, who then allegedly withheld Amalie’s necessary cardiac medicine in an effort to kill her in 2002.

Medical records confirm that Amalie Phelan was admitted to Rancho Springs Hospital on June 11, 2002, where she was then operated upon and a pacemaker implanted to regulate her heartbeat. Janet Phelan had transported her to the hospital. Amalie Phelan’s pulse at the time of going into surgery was listed as 37.

Within a couple of days, Janet Phelan was subsequently served with notice that Scott and Horspool had applied for a Restraining Order against her, to legally restrain her from her mother. The application for the RO, signed by Melodie Scott, states that Janet Phelan “unnecessarily” transported her mother to the hospital, thereby causing emotional trauma to her mother.

The matter was to come to hearing on August 1, 2002. Court records and a notarized witness statement confirm that Phelan was in court from the opening to the closure of court and that Judge Stephen Cunnison never called this to hearing and restrained Phelan from her mother without due process.

“This was going to be very simple, “ states Janet Phelan. “I was going to ask the judge to subpoena the medical records, which were at that time only available to the conservator, not to me. I was going to tell him that the hospital trip was absolutely necessary and that as a result of the surgery my mother’s life was saved.

“Judge Cunnison violated the very cornerstone of our legal system—the right to due process. He also ensured my mother’s demise.”

The sanctions for ignoring a court authorized subpoena are severe, involving citation of contempt of court and monetary sanctions. Phelan predicts that Horspool will skate on this.

“The judge accommodated his murderousness back in 02 by restraining me without due process,” she says. “This court has no regard for the law, the Constitution or human life. I will be very surprised if Horspool is sanctioned for his ignoring the subpoena.

“My mother was a government employee for twenty seven years,” adds Phelan. “She had a doctoral degree and was a supervisor at the Long Beach Health Department. But the way the court behaved, she might just as well have been a Jew in Nazi Germany.”

When given the opportunity to respond as to why he has ignored the subpoena which he was served with on April 29, 2011, Horspool attacked Phelan, saying, “I got your idiotic, stupid, insane mentally ill fax…”He goes on to assert that “you previously subpoenaed the same records,” and also suggests that “if you think you got something, file it with the court instead of lying about it like you continually do.” He also states that “You have been provided with everything I have. “

A review of the court records shows no prior subpoenas issued by any party to this case. The record also shows that Phelan filed a lawsuit against Melodie Scott on June 1, 2009. The lawsuit was shut down by Judge Stephen Cunnison on May 5, 2010 at a hearing which was not legally noticed and at which Phelan was not present. During the course of discovery for the lawsuit, Phelan explicitly requested the records of the payments made to Judith Phelan and the court ruled against giving these to her.

Phelan made a police report concerning several bottles of undispensed heart medication on June 11, 2002. The police report states it was forwarded on for investigation. The DA denies receiving the report and no investigation took place.

Judith Phelan is now residing in the San Francisco Bay area under an assumed name.

"I Want Your House! "

By Janet C. Phelan

It seemed that the struggle over the conservatorship of Jean Tanaka couldn’t get more bizarre. Well, it just did.

On June 2, 2011, Tanaka conservator Linda Cotterman asked the court to have Mrs. Tanaka’s daughter, Jeannie, declared to be in contempt of court, an action which may involve jail time and will most likely cost Jeannie her job (Jeannie is an attorney with the State).

Cotterman is apparently steaming that Jeannie Tanaka, who is the Trustee for the Tanaka Trust, has asserted her rights as Trustee and is cleaning up the Westwood house which was left vacant when her mother, Jean Tanaka, was forcibly removed in the summer of 2010.

Jean Tanaka is under a conservatorship and Linda Cotterman is, peculiarly, the conservator, even though the Tanaka Trust documents clearly list Jeannie Tanaka as the person to assume that position.

The fact that Jeannie Tanaka was adhering to advice of her counsel, Robert Canny, in asserting her rights to clean up the property does not seem to concern Linda Cotterman. Jeannie and Jean had been residing together in Mrs. Tanaka's large Westwood home until Cotterman went to court to have Jeannie evicted and her mother taken forcibly from the house. Per the court orders, Jeannie was given three hours to remove her belongings. She moved out in February of 2010.

Upon her return to the house in May of this year, Jeannie found a terrible disarray, which she alleges was the result of Cotterman sacking the house. This is how she describes what she found:

“All of parent’s dresser drawers were emptied! Pictures torn off the walls, paint torn off, many damaged areas requiring painting of especially kitchen and stairway walls. Curtains in bedroom drawn, refrigerator light bulb was put in the ceiling, replacing the 100 watt bulb Mama’s large bathroom trashed clothes, papers, trash thrown all over the counter and floor. All of her expensive perfumes, colognes,cosmetics, toiletries, etc. removed.

Dining room trashed: parents personal belongings pulled from all over the house and piled in the dining room. When attorneys had a meeting in fall 2009 (creutz, reed, lodise, carol white) the room was of course neat and clean.

2 cabinet doors torn off hinges: one in kitchen, one in laundry room.
Expensive carpets in kitchen and laundry room removed and replaced with tile. Told the carpets were dirty and instead of cleaning, were removed. Flooring under the sink had been ripped out and I had to have it replaced. All kitchen pots and pans missing, cabinet shelves emptied, pantry emptied, all recipe books removed. Boxes and boxes of photo albums pulled into the kitchen and stacked All of Mama’s nick knacks removed from the living room. Mama’s 3 mink coats missing, chinchilla coat missing.

Large box of Japanese swords, including numerous national treasures worth millions missing. Upstairs bathroom door frame pulled off wall by someone who locked themselves out of the bathroom. Garage piled high with black trash bags of parents’ personal belongings,
unprotected clothes-moth eaten. Garage trashed: once neatly packed and stacked boxes were rummaged through contents thrown in heaps. Piles and piles of unwashed sheets and clothing found thrown in piles upstairs closet and living room.

Up until Mama was taken to the basement unit, I was not allowed to enter other rooms when I visited Mama. It was when we changed the locks and went in beginning May that I could see the full extent of what the temporary conservators and christine (ed. note—Christine Tanaka, Jeannie’s sister) were doing.”

Jeannie Tanaka then hired a couple of helpers and began spending her weekends trying to clean up the mess. The contempt of court pleadings claim that Jeannie is now living on the property, which a court order last year denied her from doing. Jeannie maintains she lives in her condo in West L.A.

The conservatorship of Jean Tanaka will probably go down in the annals of legal abuse of the elderly in pursuit of their money with the apparent goal here being the Westwood house, valued at several million dollars. The elderly Tanaka, a Japanese American, was detained during WWII in the Death Valley detention center, along with her then infant daughter, Jeannie. The conservatorship was launched in a hearing wherein Tanaka siblings made allegations demonizing Jeannie’s care of her mother, with whom she had been residing for eight years. The court ignored evidence to the contrary and discounted the legal documents, which named Jeannie as conservator and Trustee.

This reporter has reviewed letters and cards previously sent to Jeannie Tanaka by her sister, Christine, congratulating her on the wonderful care she was giving her mother. But things changed abruptly when Mr. Tanaka passed on, leaving the mother more vulnerable. Almost immediately upon his demise, Christine Tanaka filed for conservatorship, attacking her sister Jeannie for the very efforts she had so highly praised her for.

Jeannie must now pay $100 an hour in monitoring fees to see her mother and is restricted to three visits a week. Ironically, one of the allegations hurled at Jeannie in an attempt to wrest the conservatorship from her was that she was isolating her mother.

A medical doctor, Dr. Laura Moire, became concerned that medical care was being withheld Jean Tanaka by her conservator. The doctor then called Adult Protective Services and the police to make a complaint.

In a Kafkaesque maneuver, Judge Reva Goetz then slapped Dr. Moire with a restraining order, prohibiting her from making further reports about the welfare of Jean Tanaka. The fact that Dr. Moire is, as a physician, a mandated reporter of elder abuse didn’t seem to bother Judge Goetz, who seems intent on isolating Mrs. Tanaka from anyone and everyone who might be concerned for her welfare.

Dr. Moire’s report detailed numerous concerns that Mrs. Tanaka’s health was being negatively impacted by Cotterman’s care. Of special note was the discontinuation of physician prescribed supplements which had previously stabilized Mrs. Tanaka’s blood pressure, normalized her cholesterol levels, built bone density, and strengthened her immune system and cognitive functioning. Dr. Moire noted that this discontinuance has been followed by several back -to- back urinary infections, at least four collapses and several hospitalizations where she was transported unconscious by ambulances none of which were brought to the attention of a cardiologist. Mrs. Tanaka has reportedly further suffered weight loss, lack of basic dental care, isolation and restrictive monitoring of highly limited visits with her daughter, Jeannie.

Dr. Moire was also concerned about the apparent placement of Mrs. Tanaka on “comfort care” in the absence of any terminal condition or diagnosis, which has resulted in not only the continued withdrawal of care (such as supplements) which were deemed beneficial to the ninety-five year old woman but the denial of care for other medical problems, including her now painfully swollen hands, extreme fatigue, and erratic blood pressure.

The Tanaka Will and Trust had left all the property to Jeannie, including the Westwood home, located in a prime real estate location. The actions by Cotterman, supported and endorsed by Judge Goetz, have effectively nullified the Will and the Trust.

According to a couple of the helpers who have been assisting in cleaning up the Tanaka residence, Cotterman has lately been hanging around the house, showing up early in the morning and late at night, taking pictures and verbally accosting the helpers. One of the helpers, Nahid , quit the job this past weekend. She told this reporter that Cotterman confronted her on a couple of occasions recently outside the house, demanding information from her and snapping her picture and pictures of her vehicle. Nahid reported she was “frightened” by Cotterman.

In the pleadings to the court to have Jeannie deemed in contempt of court, Cotterman’s attorney made a statement which may reveal Cotterman’s real interest in this case.

Attorney Scott Schomer writes; “If respondent’s position (that all conservatee’s assets belong to the Trust) is correct, then there are no assets in the conservatorship and there is no conservatorship of estate.”

And if that were true, Cotterman and Schomer wouldn’t be able to charge a dime. Conservatorships are very expensive, with legal bills running in the tens of thousands a year and conservatorship fees running a close second.

Calls to Mr. Schomer were not returned.

Janet Phelan is an investigative journalist whose articles have appeared in the Los Angeles Times, The San Bernardino County Sentinel, The Santa Monica Daily Press, The Long Beach Press Telegram, Oui Magazine and other regional and national publications. Janet specializes in issues pertaining to legal corruption and addresses the heated subject of adult conservatorship, revealing shocking information about the relationships between courts and shady financial consultants. She also covers issues relating to international bioweapons treaties. Her poetry has been published in Gambit, Libera, Applezaba Review, Nausea One and other magazines. Her first book, The Hitler Poems, was published in 2005. She currently resides abroad. You may browse through her articles (and poetry) at janetphelan.com

California Attorney Confesses Crime in Open Court--Judge Fails to Take Notice

Tim King & Michael Hjelmstad Salem-News.com

The Probate Code strictly forbids specific commingling of funds.


(RIVERSIDE, Calif.) - In a hearing this week in Riverside Superior Court, a local attorney, Toni Eggebraaten, cited a criminal act committed by her in conjunction with her client, The Riverside Public Guardian's office, as a reason for not having to abide by the law mandating she reveal accountings to a beneficiary of a Trust. In a statement worthy of Franz Kafka's absurdist classic novel, The Trial, Eggebraaten baldly stated that she pooled the funds in the Phelan Family Trust with "other estates" managed by the Public Guardian's office as a reason for not supplying the bank statements to a beneficiary. The Probate Code strictly forbids such commingling of funds. The request for discovery was made by Janet Phelan, after she noted that Eggebraaten's accountings were not consonant with the minimal discovery that the attorney provided. Eggebraaten had supplied cancelled checks with payee, endorsement and bank cancellation information redacted (blacked out) but refused to submit the bank statements, which are necessary to reconcile the account. Phelan has stated that there appears to be fraud and possible embezzlement of funds. Eggebraaten has replied that since she pooled the Phelan Trust monies with other accounts, it would violate the privacy of those other estate beneficiaries receiving funds from the pooled account if she were to abide by discovery laws and turn these over to Janet Phelan. Phelan promptly informed the Judge, Thomas Cahraman, of the violation of law by Eggebraaten but Cahraman did not respond. Phelan had already issued subpoenas for the bank records, which were served on the financial institutions last week and states that a continuance is necessary due to the fact that there are active subpoenas. In 2009, Phelan, who is an investigative reporter, broke a story in the San Bernardino County Sentinel which stated that a number of Inland Empire judges had questionable financial transactions keyed to their home loans, and were possibly laundering bribes and pay-offs through these loans. At that time, Judge Cahraman was the Presiding Judge of Riverside County. Cahraman subsequently pulled three judges whose loan history was questioned off the Phelan Trust case, although he issued an angry and accusatory letter to Phelan, refusing to investigate the loans and citing Phelan as making things difficult in the court system.

When first contacted by Salem-News.com, attorney Tony Eggebratten said, "I don't feel comfortable discussing the details of this trust with you..."

She went on to say, "The trust pays for the benefit of each a monthly stipend of $2500; if Janet told us to make a direct deposit into her account, we would. If you start with the beginning balance, we show every expense that we pay."

Eggebratten contends that her actions were reasonable and credible according to the law.

"Just do the math. Take the starting balance, documented income, subtract the expenses, it all comes out to the balance we have on hand."

Phelan responded, "Toni Eggebraaten's response failed to address the issues of illegally pooled accounts. Nor does it answer the questions raised by her attorney's time records, which indicate that she most likely has falsified the accountings."

Cahraman has taken the issue of the continuance under consideration and will be issuing a decision shortly. No action appears to have been taken on the violation of law by Toni Eggebraaten and the Public Guardian's office. To the knowledge of this reporter, this is the first time that an attorney has claimed that she is not bound by the law due to her committing a prior illegal act.

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Tim King is a former U.S. Marine with twenty years of experience in broadcast and Internet news. In addition to his role as a war correspondent, this Los Angeles native serves as Salem-News.com's Executive News Editor. Tim spent the winter of 2006/07 in Afghanistan, and he was in Iraq over the summer of 2008, reporting from the war while embedded with the U.S. Army and Marines.

Tim holds numerous awards for reporting, photography, writing and editing, including the Oregon AP Award for Spot News Photographer of the Year (2004), first place Electronic Media Award in Spot News, Las Vegas, (1998), Oregon AP Cooperation Award (1991); and several others including the 2005 Red Cross Good Neighborhood Award for reporting. Tim has several years of experience in network affiliate news TV stations, having worked as a reporter and photographer at NBC, ABC and FOX stations in Arizona, Nevada and Oregon. Tim is a member of the Orange County Press Club in Southern California, you can send Tim an email at this address: newsroom@salem-news.com
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Michael Hjelmstad and Salem-News.com founder Tim King met in the Anbar province, at al Asad Marine Corps Air Station in Iraq, when Tim was covering Marine operations there during the summer of 2008. In addition to his work in Marine Corps Public Affairs, Michael has a highly diversified background in media. Mike works as the U.S. Motion Picture and Television Liaison for the Marine Corps, ensuring that movies portraying Marines do so with accuracy.

Mike is another Los Angeles native who shares a common past both as a U.S. Marine and as a journalist. We at Salem-News.com sincerely appreciate Michael's valuable contributions and his highly developed skills in both writing, and press and sports photography. Email sent to our newsroom at newsroom@salem-news.com, will be forwarded to Michael Hjelmstad.

Another 'How could this go on in America?' Story

"Under Colorado law, the courts are supposed to follow a hierarchical list when choosing a guardian: Spouses, adult children and family friends all rank higher on that list than professional guardians. . . . Stewart followed none of these procedures . . . . 'It's criminal what they've done to me and my son,' Letty said. 'How could this go on in America? All my rights have been taken away. . . . They've taken my money and keep me from seeing my son when he's done nothing wrong.'"

Read it all here =>>BlondJustice.0rg

Reports of elder abuse result in Restraining Orders...But Not How You´d Think...

Illustration by Dees

by Janet Phelan as originally reported on Salem News

In an unparalleled action in an ex parte hearing on April 1, Los Angeles Superior Court Judge Reva Goetz issued a Restraining Order against a local physician, Dr. Laura Moire, blocking her from taking further action or making more reports in regards to conservatee Jean Tanaka.

Dr. Moire, who is considered an expert in elder abuse, is a founder of the Geriatric Division of the American College of Emergency Medicine, a founding member of the American College of Forensic Medicine as well as a member of the White House Conference on Aging, among numerous other honors and affiliations. Dr. Moire took a sole action of calling both Adult Protective Services and the police on the evening of March 30, 2011, in an attempt to alert these agencies as to her concerns of abuse being inflicted upon Mrs. Tanaka through the auspices of conservator Linda Cotterman.

In an interview last week Dr. Moire stated that she had testified during the conservatorship trial of Tanaka on March 3 and was concerned to learn that no action had been taken to address her concerns as to Mrs. Tanaka's care.

Moire's testimony dealt with a number of specific areas wherein she stated that Tanaka's health was impacted by the type of care being delivered by Cotterman. These included concerns that Mrs. Tanaka was forcibly removed from her spacious Westwood home and subsequently confined in a small basement apartment, as well as the discontinuation of physician prescribed supplements which had previously stabilized Mrs. Tanaka's blood pressure, normalized her cholesterol levels, built bone density, and strengthened her immune system and cognitive functioning. This discontinuance has been followed by 5 back -to- back urinary infections,4 collapses and several hospitalizations where she was transported unconscious by ambulances none of which were brought to the attention of a cardiologist. She has reportedly suffered weight loss, lack of basic dental care, isolation and restrictive monitoring of highly limited visits with her daughter, Jeannie.

Of specific concern to Dr. Moire was the placement of Mrs. Tanaka on “comfort care” in the absence of any terminal condition or diagnosis, which has resulted in not only the continued withdrawal of care (such as supplements) which were deemed beneficial to the ninety-five year old woman but the denial of care for her now painfully swollen hands, extreme fatigue, and what has been reported as sudden inability to stand up on her own and walk, brainfog and erratic blood pressure.

The Salem News has obtained a copy of the ex parte notice, written by attorney Margaret Lodise, in which she advises that “we will be making an ex parte application tomorrow morning at 8:30 a.m. In Room 258 (Dept. 9) seeking an order restraining either Jeannie or Dr. Moire or either of their agents from making any calls to the police, the paramedics or any similar agency reporting elder abuse regarding Mrs. Tanaka until further order of the court.” Lodise's office has declined to comment on this matter .

At the April 1st hearing, Judge Goetz chose to also restrain Jeannie from any further contact with her mother. According to witnesses, Jeannie showed up at her mother's dwelling that evening after Dr. Moire had made the phone calls to APS and police and was not involved in Dr. Moire's actions. Goetz subsequently reversed this decision on April 13th, allowing Jeannie a total of three hours per week of paid monitored visitation with her mother.

Dr. Moire states she was not served with a notice of hearing and calls the efforts to restrain her “ludicrous and illegal.” She has previously typified the efforts to separate mother and daughter as follows: “The isolation from daughter Jeanie is sorrowfully self expressed by Mrs. Tanaka and deprivation from the company of her daughter Jeanie is cruel and abusive to them both.” Jeannie Tanaka has been ordered to pay hundreds of dolllars per visit to a monitoring company.

The use of Restraining Orders to restrict family members from their ability to oversee the care of conservatees has become epidemic. In a case involving conservatorships and the rich and famous, Goetz also approved a temporary restraining order against singer Courtney Love that bars her from seeing or contacting her daughter, Frances Bean Cobain. Love had protested that her daughter, who is under a guardianship, had been molested by Jamie Spears, who is the father (and conservator) of another famous conservatee, singer Britney Spears. In a less publicized case, retired peace officer Willliam Horspool was restrained from his father, conservatee Raymond Horspool, after taking photographs which allegedly demonstrated the poor care being received by his father. San Bernardino Court Judge Michael Welch said he “didn't believe” the photos, which apparently showed the elder Horspool lying in soiled bedclothes, and ordered the photos destroyed. William Horspool was subsequently restrained from his father without a hearing, a violation of the due process clause of the U.S. Constitution.

The use of a restraining order to block a physician, who is a mandated reporter of elder abuse, from reporting elder abuse may be groundbreaking. According to Jeannie Tanaka's attorney Robert Canny, the decision by Judge Goetz effectively overturns the First Amendment to the US Constitution and Article 1, Section 2 of the California Constitution.

Last June, conservator Linda Cotterman called the police and told them that Jeannie had violated a Restraining Order by visiting her mother. Jeannie Tanaka, who is an attorney with the State of California, was hauled away in handcuffs in full view of her mother. She was released from custody prior to booking when the police discovered there was no Restraining Order in place. Jeannie Tanaka has filed a complaint with the Los Angeles police, stating that Cotterman knowingly made a false police report. The State of California deems false police reports to be a misdemeanour punishable by jail. At the time of going to press, Cotterman has not been taken into custody.

Both Mrs. and Jeannie Tanaka, who are Japanese American, are survivors of the World War II detention camps. President Roosevelt had ordered all Japanese Americans to be rounded up and herded into detention facilities, as potential enemies of the State.

Police 'Involvement' in Conservatorship Issues?

Janet Phelan Salem-News.com

Police arrests in fragile environments, usually involving seniors, violate everything from moral sense to the UN Human Rights Declaration...

(SAN BERNARDINO) - I stood at the Probate clerk's window at Redlands court, craning my neck to read the top sheet of a thick stack of papers which faced away from me. The page was stamped in large, bold letters “CONFIDENTIAL.” That alone was enough to get my attention.

And the clerk was in the back, digging through boxes to find a file I had requested, and had left me alone with the documents, albeit somewhat out of my reach. As I read upside down, I realized that this was a police notification concerning escaped “human property,” a conservatee. A conservatee is someone with no legal rights, and one had just escaped the confines of his genteel prison and was on the loose.

I read on. The conservatee in question was fifty seven years old, a bit young for dementia, I thought, and was described as wearing a baseball cap, T-shirt and shorts. An APB had been put out on the escapee.

For those who are unaware of the gaping legal loophole in “equality and justice for all,” a conservatee (in some states referred to as a ward) is someone who has been stripped of all his rights and all his assets through a legal proceeding.

Conservatorships are generally launched through an action in probate court, when there are allegations that a person may be becoming forgetful or otherwise demonstrating that they are lacking capacity. Often these are ex parte hearings and the person under scrutiny may not even be in the courtroom.

Upon the initiation of a conservatorship of estate, all the person's assets are transferred to the care and protection of the conservator or guardian. A conservatorship of person transfers the personal decisions of the alleged incapacitated person to the conservator.

As many conservators have both powers delegated to them, the potential for financial exploitation becomes of grave concern. In many cases, a capacity hearing never takes place and a conservatorship is established on allegations alone. Conservatorships are very expensive, often requiring the services of multiple lawyers as well as mandating a high rate of recompense for the conservator.

Marie Long

Police intervention in conservatorships is not only restricted to capturing a runaway ward. Increasingly,the police are becoming involved in restraining or incarcerating a family member who is trying to contact or protect a ward. Upping the ante, the police have now involved themselves in jailing someone who was speaking out critically against probate judges.
Robert Gettinger was nearly asleep, he recalls, when a light illuminated his bedroom and he heard a police bullhorn ordering him to come out with his hands up. It was winter in Frazier Park, California and Gettinger, a former police officer himself, came out of his house dressed only in a T-shirt and underwear. It was just before midnight on February 7, 2011.

Gettinger recalls at least ten officers in tactical gear, with guns drawn surrounded his house that night, including Sheriff's officers and Pasadena Police. He put up no resistance and was taken into custody and transported to the Pasadena Jail, where he was booked.

It was not until he was taken from his cell for the initial interrogation, several hours later, that he discovered what he had done to receive this elevated level of attention.

A few months back, when Katie Couric ran a special report on national television revealing problems in the guardianship system, Robert Gettinger had posted a number of criticisms of local judges on the CBS website.

Couric's report focused on the plight of Marie Long, a conservatee in Arizona and revealed that the Government Accountability Office had recently released a report stating that there were reports coming in from across the U.S. alleging criminal misconduct by conservators.

While a Los Angeles Superior court judge, Terry Smerling, had reviewed the posts made by Gettinger on the internet and had signed a search warrant, the District Attorney did not find that the evidence against Gettinger was sufficient to file criminal charges against him and after a couple of days in jail, Gettinger was released from custody.

He states that he had waived his Miranda rights and was cooperating with the police as he did not believe he had committed any crime. His certificate of release, which was obtained by Salem News, states that he was never arrested, only “detained.” The release papers cite California Penal Code 849, stating that the police may release an individual from custody and term his arrest to be a detention when the police are “satisfied that there is no ground for making a criminal complaint against the person arrested.”

A review of the comments made by Gettinger on the CBS website has left this reporter baffled. An obviously passionate Gettinger was highly critical of a number of local judges, including Candace Beason, Aviva K. Bobb and David Yaffe, and made repeated pleas that they be brought to justice and punished for their crimes against U.S. citizens. The expression of such opinions is protected by the First Amendment to the U.S. Constitution and does not violate the law.

In an attempt to ascertain the cause of action against Gettinger, this reporter obtained the initial police report. No crime or penal code number was indicated, and the report only stated that there were “suspicious circumstances.” A section which presumably contained a written complaint about Gettinger was completely blacked out.

According to Gettinger, his mother, Gertrude Gettinger, was placed into a conservatorship without notice to the family and on false statements by his sister, Sylvia Schmidt. Gettinger alleges that Schmidt had been estranged from both of their parents and is solely motivated by greed.

Gertrude had accumulated property and assets in excess of two million dollars which are now under the control of Schmidt, who, according to Robert Gettinger, has hidden numerous bank accounts and stolen property belonging to Gertrude.

He alleges that Sylvia has exaggerated, if not completely confabulated, reports of Gertrude's “mental illness” and provided evidence to this reporter that Schmidt was coaching doctors as to what kind of letters to produce to substantiate Schmidt's statements of Gertrude's diminished capacity. Per records reviewed by this reporter, Gertrude Gettinger has been drugged with powerful mind altering drugs without her agreement.

Bob Gettinger states that his mother's wishes have been ignored, that she has been removed from her home against her best interests and has been conned out of her property by Schmidt, who now will not allow Robert to see his own mother.

Gettinger has not been shy about voicing his concerns. Last year, when the United Nations received a report maintaining that conservatorships constituted a significant human rights problem inside the United States, Bob Gettinger's twelve page report on the conservatorship of his mother was included as an example of serious human rights concerns. His statement to the UN included his specific allegations that a number of bank accounts belonging to his mother had gone unaccounted for, thus indicating what could be a powerful motive for the conservator.

Gettinger also states that after achieving conservatorship over Gertrude, Sylvia Schmidt stopped working, as the income from the conservatorship is ample to cover her own needs.

While Gettinger maintains that these abuses were visited on his mother by his sister, he directly posits responsibility with Judge Candace Beason in allowing the abuses to continue. He cites a number of decisions issued by Beason at junctures in which the course of events could have been altered but were not, due to what he sees as malfunction of the court.

He also implicates Judge Aviva K. Bobb, head of Probate in the Los Angeles Superior court system, for creating a judicial culture in which laws are flaunted and ignored and conservator abuse is allowed to run rampant.

In his posts on the CBS news site, he also referred to the case of conservatee Lee Peters, whose death appears to be directly tied to Judge Bobb's refusal to give weight to the family's repeated pleas that the conservatee was developing phlebitis and needed appropriate medical intervention. Peters died of a clot that migrated to her heart.

While Robert Gettinger was released from jail on February 10, his computers remain impounded by the Pasadena Police. Numerous requests as to when his equipment(which Gettinger needs for his work in the computer field) will be released have met with delay after delay, as the Pasadena Police have spent now well over a month examining his computer files to see if they could find additional evidence against Gettinger.

In a recent conversation with Lt. Tracey Ibarra of the Pasadena PD, she suggested that Gettinger may need to obtain a court order to have his belongings returned to him.

In another ongoing conservatorship battle in Los Angeles, the Beverly Hills police were recently called and requested to arrest Jeannie Tanaka, whose mother is under a conservatorship with local conservator Linda Cotterman. Jeannie Tanaka, who is herself over sixty five years old, was taken into custody during a visit with her mother after Cotterman called the police and told them that there was a Restraining Order in place against her. Tanaka, who is an attorney with the State of California, was taken to the Beverly Hills police station and subsequently released after the police realized there was no such order in existence.

Cotterman did not return phone calls from this reporter.

Joseph Quattrochi, whose father was successfully released from a conservatorship under Southern California conservator Melodie Z. Scott, was arrested by the Redlands Police while waiting for other activists to show up for a demonstration in front of Scott's office.

The police arrested Quattrochi after an employee of Melodie Scott's alleged that he threatened him outside of the office. All charges were subsequently dropped against Quattrochi. The demonstration took place without further incident.

Ricky Ritch, a non-practicing J.D., was cited with contempt of court and ordered into custody by Judge Aviva K. Bobb for failing to file an accounting which was physically in the file before her at the time she ruled that he had failed to do so. Ritch was the son in law of conservatee Marshall Stern, who had nominated Ritch to be his conservator. Instead, Bobb overrode Stern's wishes and appointed a "professional conservator" who, according to Ritch, misappropriated considerable sums of money.

In Ritch's own words: “On January 23, 2006 I paid the $1000 fine and submitted myself for incarceration. On that date Sheriff Astorga hit my head against the car that he was using to transporting me to the jail while I was handcuffed. Sheriff Astorga stated as he was battering me, “That was a message from the Judge.” Or words to that effect. He then kicked me into the car wrenching my broken back in the process. During the next day and a half I was denied my medication for my broken back or the concussion I received from Sheriff Astorga's attack on me. I was told, “That's what you get for messing with a Judge.” That message was repeated several times during my incarceration.”

In a written statement by his lawyer, Albert Sterwerf, he affirms the following: “When Mr. Ritch was released, I personally saw the bump on his head. I drove him directly to a hospital where he was reunited with his wife. I remained with him at the hospital until the initial diagnosis was finished by the doctor. They said that Mr. Ritch had a concussion.” He also confirms that the accounting in question was filed and in the court file when Bobb ordered Ritch into custody.

Robert Gettinger wonders why the police are so eager to step in. He recalls being told by one of the arresting officers Detective Kevin Okamoto, that there is a special squad of officers whose job it is to protect the judges. As he wrote on the CBS website:

"We need to tell anyone and everyone. We need all victims to come forward, even for cases from years ago as this crime has been going on for many years. If the police or government won't help us then we need to take justice into our own hands. IF THE POLICE WON'T INVESTIGATE then we have a right to justice.

"Those who protect these judges and lawyers need to be informed about what kind of monsters these people are. They're just like Adolph Hitler, they're putting our seniors in prison, stripping them of their rights, stealing their belongings, drugging them and sending them to a legal GAS CHAMBER. The Holocaust is back, right under your nose.....Please email your friends, share this story which is just an example, the woman in this story lost everything, at least she has her life as many victims are dead. Post the names of the lawyers, judges and names of the agencies you contacted who did nothing. Put their names in public light."

Since being released from jail, Gettinger has been networking with other court victims on a Facebook site.

Sylvia Schmidt did not respond to phone calls or emails from this reporter.

Janet Phelan is an investigative journalist whose articles have appeared in the Los Angeles Times, The San Bernardino County Sentinel, The Santa Monica Daily Press, The Long Beach Press Telegram, Oui Magazine and other regional and national publications. Her poetry has been published in Gambit, Libera, Applezaba Review, Nausea One and other magazines. Her first book, The Hitler Poems, was published in 2005. She currently resides abroad.

You may browse through her articles (and poetry) at janetphelan.com

Secrecy Hides Cozy Ties In Guardianship Cases

By Cheryl Phillips, Maureen O'Hagan and Justin Mayo

Seattle Times staff reporters

Karen Weed nearly lost her life when a cement truck crushed her car. She survived a coma and cardiac arrest, broken bones and brain damage.

But she was determined not to lose her independence. After Weed got a significant insurance settlement, a family lawyer filed papers to have her declared a ward of the court, saying she couldn't manage her money without professional help.

Weed and her family later objected, but the lawyer persisted. So they fired him.

Yet when Weed's family walked into a Snohomish County courtroom last March for a hearing on whether a guardian would be appointed, there he was again: Michael Olver, the lawyer they had told to get lost.

"What's he doing here?" wondered Weed's daughter, Laura Box.

Olver had switched sides. He now represented EthiCare, the company trying to become Weed's guardian. The same company had been Olver's client for years — and would soon take control of Weed's life, charging her thousands of dollars along the way.

Weed and her daughter had stumbled upon a problem common to many guardianships, a complicated, little-known corner of the law where courts can grant strangers tremendous power over vulnerable family members.

Potential conflicts of interest radiate through guardianship cases, a Seattle Times investigation has found. The roles played by lawyers, guardians, court-appointed investigators and investment managers often overlap or blur. Sometimes, the same person assumes multiple responsibilities that would normally be kept separate.

And who's to know? The Weed file, for instance, has been stamped secret — one of hundreds of such cases to be improperly removed from public scrutiny.

Judges and court commissioners across the state have sealed the entire file in at least 398 guardianship cases since 1990, The Times found during its ongoing series investigating concealed court records. Most of the cases were sealed in King County.

The Times has asked the Snohomish County court to unseal the Weed file. Documents obtained through other means reveal that Weed already faces more than $100,000 in lawyer fees — including Olver's. He said he incurred them looking out for Weed's own good.

"This whole thing is just wrong," said Box, Weed's daughter. "I don't know how they've done this and they're getting away with it."

Ties that bind

A guardianship begins when someone — family member, social worker, lawyer — petitions the court saying somebody else is unable to care for himself.

Courts sometimes appoint a relative to take care of a ward — or "incapacitated person," in legal parlance. But courts often rely on professional guardians, who charge hourly fees as high as $95. Many charge much lower rates for those with few resources.

Under guardianship, wards may lose the right to marry or to enter into contracts, among other things. Guardians can restrict wards' daily activities or access to their own bank accounts.

Some guardians have protected wards from scam artists and thieving relatives, allowing the vulnerable to live in dignity.

Karen Weed and her family hadn't even heard of guardianship, much less understood its intricacies, when they first met Olver last December. At that point, they were just emerging from a long ordeal.

After Weed's car crash in August 2003, she went through multiple surgeries and spent months in the hospital. When Weed was finally discharged, she went to live with her daughter, Laura, and her husband, George Box. They cared for her full-time, doing everything from feeding her to changing her diapers.

The accident caused lasting brain damage. Weed, now 61, struggles for words and to hold a thought. She can't balance a checkbook. She needs her daughter and son-in-law's help with most daily activities.

In November 2005, Weed's lawsuit over the accident was settled. Family members agreed to keep the amount confidential but say it was enough that Weed felt she could live a comfortable life.

Because she was brain-damaged, the court required that someone else manage her money, a common requirement when minors or the disabled receive legal settlements.

Weed's lawyer for the personal-injury case recommended Olver, who has a reputation as a tenacious advocate for his clients

Family members say they went to him for help finding a financial company to manage the settlement money. What they got was a guardianship.

At their first meeting, Olver gave them brochures from three guardianship companies, each with "a long history of competency and integrity," he wrote to the family.

"By way of disclosure," he added, "I represent all of them on various other cases."

That might have raised a red flag. If Olver was regularly paid to represent a guardianship company, how could he be an effective advocate for family members if they became unhappy with that company?

But to Weed and Box, Olver's disclosure sounded like an endorsement. When Olver called the next day and steered them to EthiCare, they trusted him and signed a petition asking the court to name the company as Weed's guardian. They say they still didn't understand what a guardianship actually entailed and that Olver didn't tell them everything they needed to know.

For instance, the family said Olver didn't mention that the state Certified Professional Guardian Board, which oversees guardians, had taken action against EthiCare in 2002 — making it one of just seven guardians subjected to board action since 2001.

EthiCare had inflated the costs of care for an elderly woman, board records show. EthiCare whited out the hourly rate on a caregiver's bill. Then it billed the elderly woman at a higher hourly rate, pocketing the difference, a board investigation found.

EthiCare maintained that the fees were not excessive and that additional charges like this were common practice. But another guardian consulted by the board said that wasn't true, and the board has since written guidelines saying it's not allowed.

In an agreement with the guardian board, EthiCare said it would disclose its fees upfront and refrain from adding "surcharges." It did not admit wrongdoing.

The lawyer who represented EthiCare in that dispute: Olver.

What's a conflict, what's not?

The Weed case illustrates a potential conflict of interest in guardianships: Acting as the family's lawyer, Olver led Weed to a company that had long been paying him to represent it. So where did his loyalties lie?

Guardianship cases are susceptible to conflicts of interest because of the way the system works.

In most areas of law, lawyers specialize in representing one side or the other. Prosecutors, for example, don't represent criminal defendants.

But only a small circle of lawyers practice in the guardianship field. Some say that to make a good living they cannot limit their practice to one side or the other: They must represent guardianship companies as well as the people subject to those companies' control.

As long as the lawyers properly disclose such ties, they are acting appropriately, court officials say.

But even the appearance of a conflict of interest can undermine public trust in the courts, said King County Court Commissioner Kimberley Prochnau. "It not only has to be fair, but it has to appear fair," she said.

The case of Anna Crowe, now 10, illustrates how lawyers can parlay one role into another.

When she was born in Seattle, Anna had difficulty swallowing. So the hospital inserted a feeding tube and, later, an IV. A nurse accidentally mixed up the two tubes, sending breast milk directly into the infant's veins. Anna suffered a series of strokes and went into a coma. She came out with brain damage.

Her parents hired lawyer Paul Luvera to file a medical-malpractice claim. He told them they'd need a guardian to represent Anna's interests. As he often did in cases like this, he recommended Seattle attorney James Degel.

One of Degel's first moves as Anna's guardian was asking to have her file sealed, something he often did.

Then he began taking on additional roles in her case, another common practice for him. He worked not only as Crowe's guardian but as a lawyer for the guardian — himself. He also had himself appointed to review the hospital's proposed $7 million settlement to make sure Anna was compensated fairly and that Luvera's $2.8 million fee was justified. Once he signed off on the settlement, another job was created: trustee of the money.

In this case, the trustee stood to collect more than $50,000 each year, in addition to legal and accounting fees, until Anna was 26. Degel recommended himself for this job, too.

That's when Anna's parents objected.

"We found it somewhat strange that Mr. Degel proposed that Mr. Degel be appointed as the trustee and that the trustee would set his own fee," said Anna's father, Daniel Zene Crowe. "We felt this was a clear conflict of interest, and we couldn't believe everyone else was so matter-of-fact about it. That was the moment when my wife and I realized no one was really going to look out for Anna unless we forced the issue."

The Crowes hired their own lawyer and got Anna's money placed with a professional trust company.

Degel said he didn't do anything wrong and that he immediately backed down once Anna's parents expressed concerns.

Getting paid for being both settlement evaluator and trustee may have seemed like a conflict, he acknowledged. But by telling the Crowes what he intended to do, he said he had dealt with that problem.

Degel also said that whenever he wore two hats, as in the Crowe case, none of his wards lost out. Instead, they benefited from his financial expertise, he said.

Tighter court rules in King County now limit when lawyers can take on more than one role in a case.

Many other counties haven't tightened their rules.

Losing control

Within weeks of following Olver's advice, the Weed family began to realize what a guardianship would mean.

They worried that they couldn't make a doctor's appointment or plan a vacation for their mother because the guardian might not pay for it. Olver didn't mention those drawbacks, the family said. Instead, he wrote them a letter saying there were "numerous protections for your mother's Constitutional rights built into the procedure."

Olver's petition to the court sidestepped a key safeguard.

After a guardianship petition is filed, the court appoints an investigator, called a guardian ad litem, to determine whether the guardianship is needed. The court is supposed to consult a list of approved investigators and pick the next name in line. That method helps select a neutral investigator, rather than one handpicked by someone with a vested interest.

But the Snohomish court appointed the guardian ad litem whom Olver recommended: Thomas Cooper.

Cooper's law firm also did work for EthiCare, Weed and Box later learned.

So: Weed's lawyer had a long relationship with the guardianship company, and the investigator had ties to the company, as well. Cooper said in an interview that those ties had no effect on his recommendation that the court accept the appointment of EthiCare.

Last January, before the court ruled on the petition, Weed's family stormed into Olver's office and asked him to withdraw it. "By this time, we were all crying," Box later wrote.

Olver was fired and the family hired a new lawyer.

Meanwhile, Olver slid into the role of representing EthiCare, and the process plowed ahead.

He said Box's and Weed's new lawyer told him the family had no problem with him switching sides, but Box disputes that.

When court was called to order that March day to see whether EthiCare would be appointed as Weed's guardian, there was Olver.

The family's new attorney didn't put up a fight, the family said. (He was later suspended from the practice of law for failing to take action on behalf of several other clients.)

EthiCare became Weed's guardian.

There was one more thing Olver wanted. He got the entire case sealed, after arguing that the file included the confidential settlement figure.

"He sealed the whole thing so no one can see what happened," Box later said.

Life under guardianship has not been easy. Box said her mother hasn't been able to see some of the doctors she wants because EthiCare didn't agree to pay for them. To fill her mom's prescriptions, which cost as much as $1,000 a month, Box said she's had to pay the pharmacy upfront, then wait for EthiCare's reimbursement.

"You're being watched every step you take," Weed said. "I didn't think that was what I was signing on for." When her family complained, EthiCare's lawyer, Olver, got involved, with his bill to be charged to Weed.

Last spring, the family hired a new lawyer, Margaret Dore, a critic of the guardian system. Dore couldn't believe the chain of events.

"These facts do not meet the smell test," she wrote in court papers.

Dore has filed voluminous — and expensive — pleadings on Weed's behalf. But the family learned that once in a guardianship, it's hard to get out.

Olver maintains he did nothing wrong. He said he recommended EthiCare because that's what Weed and her daughter wanted at the time. He said he is now representing EthiCare because it needs a good lawyer to handle this tricky case.

He also said that he didn't switch sides because, technically, he didn't represent Weed; he had been hired by her daughter. All he and EthiCare were doing, he said, was trying to protect Weed.

Weed's total in legal and guardian fees for the past year: more than $100,000.

On Oct. 13, Court Commissioner Jacalyn Brudvik was scheduled to hear arguments on whether Weed could be rid of EthiCare and whether she had to pay Olver's legal bills.

Brudvik postponed the legal-fees question for another hearing.

But then Brudvik reached a decision: EthiCare was out. And Karen Weed's sister would be guardian.

As the words left the commissioner's mouth, Weed smiled, then burst into tears.


Reporter Ken Armstrong and researcher David Turim contributed to this report.

Cheryl Phillips: 206-464-2411 or cphillips@seattletimes.com
Maureen O'Hagan: 206-464-2562 or mohagan@seattletimes.com

Copyright © 2006 The Seattle Times Company

thanks to Latifa S. Ring for the heads up as posted in NOTEGA - National Organization to End Guardianship Abuse.

So...Why Isn't The Attorney in Jail?

Janet C. Phelan, Objector in propria personam 258 A Street 1-15 Ashland, Oregon 97520 Telephone: (323) 515-4889 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE - CENTRAL DISTRICT PROBATE DIVISION In re: The James R. Phelan and Amalie M. Phelan Family Trust No.: RIP080974 MANDATORY JUDICIAL NOTICE California Evidence Code 451 Judge: Gary Tranbarger Department: 7 Date: October 8, 2009 Time: 8:30 a.m. For the purpose of the court taking proper action in light of the Respondent's Opposition to Petition for Surcharge/Tort,the Court must take mandatory judicial notice of its own records, including its rulings,orders and all documents filed in this matter .Pursuant to California Evidence section 451, the court must take judicial notice of: Judicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution. (b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code. (c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state adopted by the Judicial Council.(d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy. (e) The true signification of all English words and phrases and of all legal expressions. (f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. In addition, Evidence code 452 states that Judicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Petitioner requests that the court take mandatory judicial notice of bpc 6067: Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be endorsed upon his license. Petitioner asks the court to take mandatory judicial notice of Business and Professions Code 6067, which states Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license. Petitioner also requests the Court to take mandatory judicial notice of BPC 6068, which states: It is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state. (b) To maintain the respect due to the courts of justice and judicial officers. (c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense. (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (e) (1) To maintain inviolate the confidence, and at every per to himself or herself to preserve the secrets, of his or her client. In light of the misrepresentations made by attorney Horspool in his Opposition, Petitioner requests the court take mandatory judicial notice of Business and Professions code 6128 (A) and (C), which states: Every attorney is guilty of a misdemeanor who either: (a) Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party. (b) Willfully delays his client's suit with a view to his own gain. (c) Willfully receives any money or allowance for or on account of any money which he has not laid out or become answerable for. Any violation of the provisions of this section is punishable by imprisonment in the county jail not exceeding six months, or by a fine not exceeding two thousand five hundred dollars ($2,500), or by both. In light of numerous statements constituting misrepresentation of fact by attorney Horspool in his Opposition, Petitioner also requests the court take mandatory judicial notice of California Penal Code 125 which states: An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. Petitioner also requests the court take mandatory judicial noticeof CPC 182, wherein it states: (a) If two or more persons conspire: (1) To commit any crime. (2) Falsely and maliciously to indict another for any crime, or to procure another to be charged or arrested for any crime. (3) Falsely to move or maintain any suit, action, or proceeding. (4) To cheat and defraud any person of any property, by any means which are in themselves criminal, or to obtain money or property by false pretenses or by false promises with fraudulent intent not to perform those promises. (5) To commit any act injurious to the public health,to public morals,or to pervert or obstruct justice, or the due administration of the laws. (6) To commit any crime against the person of the President or Vice President of the United States, the Governor of any state or territory, any United States justice or judge, or the secretary of any of the executive departments of the United States.They are punishable as follows: When they conspire to commit any crime against the person of any official specified in paragraph (6), they are guilty of a felony and are punishable by imprisonment in the state prison for five, seven,or nine years. When they conspire to commit any other felony, they shall be punishable in the same manner and to the same extent as is provided for the punishment of that felony. If the felony is one for which different punishments are prescribed for different degrees, the jury or court which finds the defendant guilty thereof shall determine the degree of the felony the defendant conspired to commit. If the degree is not so determined, the punishment for conspiracy to commit the felony shall be that prescribed for the lesser degree, except in the case of conspiracy to commit murder, in which case the punishment shall be that prescribed for murder in the first degree. If the felony is conspiracy to commit two or more felonies which have different punishments and the commission of those felonies constitute but one offense of conspiracy, the penalty shall be that prescribed for the felony which has the greater maximum term. When they conspire to do an act described in paragraph (4), they shall be punishable by imprisonment in the state prison, or by imprisonment in the county jail for not more than one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they conspire to do any of the other acts described in this section, they shall be punishable by imprisonment in the county jail for not more than one year, or in the state prison, or by a fine not exceeding ten thousand dollars ($10,000), or by both that imprisonment and fine. When they receive a felony conviction for conspiring to commit identity theft, as defined in Section 530.5, the court may impose a fine of up to twenty-five thousand dollars ($25,000). All cases of conspiracy may be prosecuted and tried in the superior court of any county in which any overt act tending to effect the conspiracy shall be done. (b) Upon a trial for conspiracy, in a case where an overt act is necessary to constitute the offense, the defendant cannot be convicted unless one or more overt acts are expressly alleged in the indictment or information, nor unless one of the acts alleged is proved; but other overt acts not alleged may be given in evidence. The above notice will enable the court to view attorney Horspool's misrepresentation of fact, court rulings and records, evidence previously provided to the court and the pertinent laws in the proper perspective. Memorandum of Points and Authority I. FACTS Petitioner filed a petition for surcharge on June 1, 2009, alleging numerous acts of fraud, misappropriation of funds, theft; breach of fiduciary duty, concealment, material misrepresentation,perjury and conspiracy, On_July 29, 2009 Horspool filed a response, denying the allegations. In many instances, Horspool denied that the court took actions which are a matter of court record, both in Los Angeles Superior Court and in Riverside Superior Court. In the face of the evidence, the denials constitute false statements and misrepresentations of fact. These misrepresentations appear to be made in order to exonerate Horspool and his client, Objector Melodie Scott, from culpability for the very serious allegations being made by Petitioner: The denials in themselves constitute a breach of law. To highlight the gravity of the misrepresentation of fact, Petitioner draws attention to the statements made in paragraph 14 of the Opposition , wherein Objector states that "the $30,000 was deposited into a new money market account owned by the Trust, being account no.21661627." This is, in fact, the account number that the thirty thousand was DEBITED from, and Petitioner provided the bank statement for May 2004 as evidence. Petitioner has since come into possession of even more bank records containing more evidence of sizable withdrawals that are not accounted for by the official accounting. Petitioner must ask the court to take notice of such serious misstatements of fact, which are often ludicrous in content, and appear to be a desperate effort by Objector and her attorney to exonerate themselves from serious allegations and evidence of criminal misconduct. I request the court to take mandatory judicial notice that each and every one of the misrepresentations by Horspool are verified by Melodie Scott and thus constitute conspiracy under California Penal Code 182. Making such misstatements to the court and a party is not only a criminal act, but ethical misconduct so egregious that upon a finding or conviction the attorney is subject to disbarment. Petitioner also requests the court to take notice that while Horspool filed his Opposition to the Petition for Surcharge/Tort on July 29, 2009, Petitioner did not receive the answer. Petitioner then repeatedly contacted Objector's attorney, requesting he fax her his answer. On August 12, 2009 Petitioner received a fax from Horspool indicating he would instead mail the answer to her address in Ashland, OR. Horspool had previously been advised that Petitioner was out of the US at that time. Horspool did not mail Petitioner the answer until August 20th, the day Petitioner had set to leave Canada. As a result of his flagrant disregard of Petitioner's need to be served with these papers, Petitioner did not receive the papers until September 3, 2009. The Court needs to take notice that Horspool and his client have a history of ignoring the law in terms of supplying proof of service; to wit, the Court needs to take notice that in terms of the TRO levied against Petitioner by Objector on June 13, 2002 that the court's own records state that no Proof of service was ever supplied. Both these acts constitute violations and appear to be efforts by Horspool to conceal his actions from Petitioner. The misrepresentations by Horspool in the Opposition, done in collusion with his client, Objector Melodie Scott follow in numerical order per the paragraphs designated in their Opposition: 3 (e) Misrepresentation of law governing double damages. PC 859 clearly states that double damages apply. 6 Ludicrous and bizarre misrepresentation of fact re my statement that I have personal knowledgeand can testify to this knowledge. 8 Horspool makes a brazen denial of what he knows to be proper court procedure. His disregard for court procedure is well illustrated by his failure to serve Petitioner (or apparently anyone else) with his Opposition. When I requested he fax me the Opposition he engaged in more subterfuge, to wit; he faxed me a letter on August 12th, 2009 in which he stated he would mail the Opposition to my Oregon address. This Opposition was, in fact, mailed eight days later. His utter disregard for appropriate and legal procedure, evidenced by his recent failure to serve also manifested in his failure to notify me in December of 2002 that Scott was amending the Trust.This failure should render void the amendment, which appointed Scott as Successor Trustee and should render void all her subsequent actions in this matter. 10 Misrepresentation of court record. On June 1, 2009, through an order of the court, Melodie Scott was removed as Trustee and the Public Guardian's office was appointed. While Scott is pathetically alleging she had petitioned to be removed; the fact remains that she has failed to be granted a fiduciary license and is unable by law to function as a Trustee; The statement of issue produced by the California State Fiduciary Board lists as a cause of action that she has continued to act in a fiduciary capacity following the denial of her license and lists this case as one in which she had continued to act, in defiance of the law. 11.Misrepresentation of fact. Melodie Scott was under a Grand Jury investigation which was leaked to the LA Times in article attached to the Petition/Tort as Exhibit 1. I personally had multiple conversations with the Grand Jury and turned over numerous documents to that body concerning Melodie Scott and David Horspool. 12 The Court is requested to take judicial notice of Count 6 of Petition for Surcharge and Tort which clearly cites the exercise of undue influence upon the court as a charge. The fact that Commissioner Joan Burgess violated Article 6 of the California State Constitution in her decision to overturn a ruling by a judge in Los Angeles Superior Court in no way exonerates Horspool and Scott for their culpability for illegal acts. 13.Misrepresentation of fact, provided to the court in a bank statement from Redlands Community Bank. The substance of Horspool's misrepresentation of the revelations provided by this bank statement are discussed in the next paragraph of this document. The intitial theft constitutes a felony and so does his misrepresentation. 14. Misrepresentation of fact, in attempt to cover up theft of assets. Horspool states that "In fact, the $30,000.00 was deposited into a new money market account owned by the Trust, being account no. 21661627." This is the account number that the $30,000.00 was DEBITED FROM, as conclusively shown in the bank statement provided as evidence in exhibit 2 in Petition for Surcharge and Tort. The Court must take judicial notice of the documents filed in this proceeding. 15. Horspool states that ¨”When Objector files final accounting, all her acts and actions with respect to the financial matters of the TRUST will be disclosed.” The fact is that this accounting was ordered by Commissioner McCoy to be filed by August 10th; 2009. Horspool altered the date when he prepared the minute order,; giving himself more time At this point in time, he has surpassed even his own altered date and has still not filed the accounting. The Court must take judicial notice of its own rules. 16. Objector makes numerous misrepresentations of fact in paragraph 16.These misrepresentations are also made in an ostensible attempt to cover up whatis pivotal evidence of financial misappropriation. Objector states"EXHIBIT 4 is clearly stamped 'VOID,' which would lead one to conclude that the check was never mailed." In fact, the check was mailed to me at 1223 Broadway in Santa Monica, which is where my postal box was located, and received when personally handed to me by the owner of that business. I still have the original of this check in my possession. One must ask why the Trustee would mail a check to this beneficiary which was stamped "VOID." OBJECTOR also complains that "PHELAN" does not understand how to read the General Ledger listing and to compare it to the Accountings that are already on file with the court."Petitioner hereby repeats that this check, which Petitioner has in her possession and was mailed to Petitioner by Objector is not listed in the General Ledger and is thus evidence that the former Trustee was issuing checks and not accounting for them in the General Ledger or to the court. 17. Misrepresentation of court record and the documents produced by Objector which were filed with the court in Petition for Surcharge and Tort. At the point of filing for surcharge the Petitioner had made repeated requests for records. Two of these requests were supplied to the court as exhibits 6 and 7 of that document. The first demand for discovery was issued by Petitioner on April 11, 2009,which was denied totally. After the Petition/Tort was filed, Petitioner issued a second demand for documents, which Objector responded to only agreeing to provide documents subsequent to November 2007. In an email received by Petitioner on August 11, 2009, Objector through her attorney now agrees to provide all "available" records but then subsequently refused to disclose those pertaining to Judith Phelan's trust. As Objector violated the trust document in refusing to split the monies at the death of the last settler and thus did not establish two separate trust but instead chose to feed the daughter bank accounts from the parent trust, there are, in fact ,no separate trusts. As it is the contention of the Petitioner that Objector heavily favored beneficiary Judith Phelan, thus violating probate code 16003 and other state and federal laws, the refusal to supply these records smacks of an attempt to cover up exactly what Petitioner is claiming. Petitioner is currently unable to pay the exorbitant costs of a copier service, due to the financial damage done by Objector and is researching other ways to copy the records. Objector has refused Petitioner the request that Petitioner copy the records which would have simplified the issue and allowed Petitioner discovery without incurring prohibitive costs. 20. Misrepresentation of fact in effort to exonerate Objector and Horspool from culpability for the massive and brutal impact of their malicious actions.. Objector has, in fact, repeatedly used the Trust as a weapon against Petitioner and has withheld court authorized payments necessary to petitioner’s survival 1) In March of 2002 when Objector issued a stop payment on the court authorized distribution for Petitioner as retribution for Petitioner taking her mother, Amalie Phelan, the conservatee, to see an attorney and also calling the police when the conservatee's home was robbed and 2) halting court authorized trust monies for a year and a half in retaliation for the loving and appropriate action of Petitioner in transporting the conservatee to the hospital when she was clearly in a perilous medical condition in June of 2002. Because of the resultant surgery the conservatee’s life was saved. The Objector did in fact retaliate against Petitioner by stopping court authorized trust payments resulting in unspeakable hardship for petitioner. The Objector and her attorney have repeatedly assaulted the Petitioner’s sanity and integrity in attempts to inflame the court’s prejudice against petitioner and to avert attention away from the vicious and repetitive financial assaults by Objector upon Petitioner. As a result of Objector’s actions, Petitioner lost her home, her car, most of her belongings and ended up homeless on the streets of Los Angeles for over three years, during which time Objector paid herself handsomely for ”managing” the Trust of which Petitioner is a beneficiary. The Court is to take judicial notice of the Trust document Article 5.4 d (5) which reads: “Each Trust is intended to insure that there shall always be a friend, advocate and protector of the legal rights of the beneficiary and to insure that the beneficiary shall receives services that will assist him/her in achieving a reasonable degree of happiness and normalcy.” The court is advised that during this period of homelessness that petitioner’s weight dropped to under 100 pounds, due to lack of money for food. This is directly and only due to Objector's refusal to release monies which the court had authorized in December of 2001. 21. See above, 20. 23. Horspool continues to attempt to mislead the court as to the true circumstances surrounding check #667. Check number 667 was mailed to me by Objector and I have it my possession. As the Trustee was thus obviously mailing out checks and not listing them in her ledger, my statements concerning this stand and I must now ask a further question--Why is the trustee mailing me checks which she now says were voided? Is it the practice of the Trustee to void out checks then mail them out? What would be the reasoning behind this?And since the Trustee is obviously mailing out checks and not listing them in her General Ledger, the questions concerning the fate ofthe other skipped/missing check numbers remains a salient concern. 24. Horspool is again attempting to mislead the court through misrepresentations of the court's own actions and subsequent events. I refer the court to the order after hearing on December 18, 2001, in which the court authorized payments of up to $1500 a month for each beneficiary. The trustee dutifullyissued these checks until March of 2002, when the Trustee put a stop order on my check for taking my mother to see a probate attorney in Laguna Hills and for calling the police when my mother's house was burglarized. There was no mention by the Trustee at this point in time of demonstration of need. There were no requests for receipts, for demonstration of income (the Trustee had been advised that I was on social assistance at that time). The trustee then halted the checks for over a yearand a half at the exact point when I brought my ill mother to the hospital where she was operated on to save her life. I must request that the court take notice of two things here: First, Horspool. is attempting to exonerate his egregious actions and those of his client by misrepresenting the situation surrounding the court authorized disbursements. Indeed, one need only check the First Accounting, filed March 21, 2003, Schedule B, Schedule 2 to see where the Trustee has herself termed these disbursements "per court authorized distribution." Unwilling to admit the heinousness of his client's her behavior towards me, which ultimately damaged me financially,physically and mentally, Horspool is now making misrepresentations of fact by stating that I 'refused to provide any information to substantiate" need when none was requested. In fact, I wrote a letter to attorney H. in the Fall of 2002 advising him that I had no money for food and was losing weight due to near starvation. Horspool and his client ignored my desperate plight. Once again, there was no request for documentation of need and there is no evidence of such a request supplied by Objector, only the unsworn statements of counsel which are bogus in their entirety and constitute violations of California Penal Code 182 and BPC 6128 , 6067 and 6068. 25. Misrepresentation of fact in order to exonerate Objector from egregious financial deprivation of this beneficiary,resulting in the loss of my car, the loss of my home, the loss of most of my belongings and three and a half years of homelessness. 27. Horspool misrepresents the fact that he issued two applications for restraining orders against PETITIONER which were void of necessity and void of fact. The court must take mandatory judicial notice of its own record and the two applications for restraining orders on file. The Court must take mandatory judicial notice of the hospital records of the conservatee, which prove the application for the June 2002 RO was made on false grounds. I again request the court to take judicial notice of California Penal Code 182 and BPC 6128 (a). 28. The court must here be noticed of California Penal Code 125,which states that “ An unqualified statement of that which one does not know to be true is equivalent to a statement of that which one knows to be false. “ In their eagerness to deny all my allegations, Objector and her attorney denied something wherein they have already admitted insufficient knowledge. This is a violation of CPC 125 29. Petitioner repeats the notice to the court in the above (28) 30. Objector falsely denies the allegation and offers no proof. There are witnesses who will be called when this comes to trial who will verify the truth of these allegations. 31.Apparently, Objector is stating through this denial that she did not have knowledge that my mother had lifesaving surgery as a result of her June 2002 hospitalization. As the TRO did not come to hearing until August of 2002, this is simply not possible and is a grave misrepresentation of fact, ostensibly to exonerate Objector and attorney Horspool from culpability. The Court is asked to take mandatory judicial notice of its own record to ascertain that no attempt was made by Objector to advise the court of her previous fraudulent assertions. 33. Horspool again misrepresents the facts through his denial of the allegations that Objector failed to correct her misrepresentations in support of TRO’s. The court record will support these allegations and will not support Horspool's denial. Objector also failed to correct her punitive and retaliatory withholding of funds which were court ordered and were necessary for the survival of this beneficiary even after I informed her attorney that I had no money for food. Her failure to inform the court and to correct her misrepresentations is a matter of court record and I ask the court to take mandatory judicial notice of the declaration by Objector in support TRO's and also of the accountings filed with the court wherein her withholding of funds is obvious. 34. Horspool is apparently denying he; in concert with Scott, acted with full knowledge of the consequences and damages to Plaintiff. By extension; this would mean that 1) Horspool and Scott had no knowledge that my mother received a pacemaker during her hospitalization in June of 2002 and that 2) Horspool and Scott had no awareness that their applications for Restraining Orders against Petitioner contained false statements and that 3) Horspool and Scott had no knowledge that severing a close and mutually supportive mother-child relationship would cause emotional distress to Plaintiff and that4) cutting off trust monies which the Trust itself states were necessary for Plaintiff would in any sense cause harm. Obviously, if the above were true, Horspool would be unfit to practice law and his client would be unfit to be occupying any position where her decisions could impact another person’s welfare. I posit quite the contrary; that these actions were taken with full understanding and utter disinterest in the impact upon Plaintiff: 36.The Court need take mandatory judicial notice that Horspool`s defamatory and libelous attacks on Janet Phelan have already been entered into the court file and are a matter of record. The court need note Exhibits 1 and 2 (check this) of Amendment to Declaration of Janet Phelan in support of Objections to the Second Accounting. 38.Objector appears to be denying what exists as a matter of court record, per the medical record concerning Amalie Phelan, conservatee. The court must take mandatory judicial notice of its own record. This document is on file several times in the court, as it was filed April 6, 2009 and other times. 39. Objector is misrepresenting the court record. Objector herself filed an admission that she had failed to do and inventory of the belongings of the conservatee. This facilitated her theft. Her admission that she failed in this fundamental capacity was filed with the court on September 20 , 2006, The objector also vastly misrepresents the fact of how many times I was allowed access to the storage unit. the court record itself will support that I was granted access once and only once. Shocked at the amount of theft of belongings,I repeatedly requested re-entrance to document the theft. When Objector failed to respond I filed a police report on February 7, 2007, which was forwarded to the DOJ and is also on record with the court. The incredible amounts of misrepresentation by Objector is utterly controverted by court and police records. 40. By denying the allegations made by Petitioner in paragraph 38 of her Petition, Horspool and Scott are misrepresenting the court record re the September 20, 2006 pleadings and misrepresenting the court record re the documentation of Probate Examiner Charles Mayr, dated 5/10/2004. I again request the court to take mandatory judicial notice of its own record and of BPC 6128, 6067 and 6068. 41. The Court must take mandatory judicial notice of California Penal Code 125, wherein it becomes a crime to make an assertion one does not know to be true. 42. Misrepresentation of fact contained in court record. The court need only review the Accountings to see when I was allowed into the storage space once and only once. The Court must take mandatory judicial notice of its own records. 43.The court must take mandatory judicial notice of its own record re the accountings filed by Objector in February of 2008 , wherein Horspool falsely states that Judge Lefkowitz in Los Angeles Superior Court had ordered he be paid his court costs. She denied his court costs, as a matter of record. The Court must take mandatory judicial notice that Petitioner produced the court record from the proceeding in Lefkowitz's court wherein she denied him his court costs. In an attempt at unjust enrichment, Horspool knowingly falsely represented a court order to the court. I again request the court to take mandatory judicial notice of California Penal Code 182 as well as BPC 6067, 6068 and 6128, These acts of misrepresentation of fact in pursuit of unjust enrichment by attorney HORSPOOL are in fact felonies committed by attorney Horspool in collusion with this client, Melodie Scott. 44. Horspool is again misrepresenting facts. The bank statements in my possession, leaked to me by an informant, do not match up with the accountings. I again refer the court to the Redlands Community Bank statement of May 2004 regarding the missing $30,000. 45. The court must take mandatory judicial notice of Penal Code 125. Horspool is admitting lack of knowledge then issuing a denial. 46.The court must take mandatory judicial notice of its own records, specifically the rankly illegal minute order issued by Judge Stephen Cunnison on August 1, 2002 as well as the notarized statement by Jack Smith. The court must take mandatory judicial notice of the order issued by Judge Stephen Cunnison on October 8, 2002, which is unconstitutional in its entirety. The court must take mandatory judicial notice of the minute orders connected to the June 27, 2002 hearing, issued by Commissioner Ettinger ( now Burgess) which are illegal in their multiplicity. The court must take mandatory judicial notice of California penal Code 182 and BPC 6128, 6067 and 6068. in reference to the gross misrepresentation of fact by attorney HORSPOOL, done in collusion with Melodie Scott. 47.Herein Horspool misstates the law. The statute of limitations starts running with discovery of the crime. I had no access to the Confidential Bank and Brokerage Statements prior to them being sent to me in April and May of this year. The clock starts ticking upon discovery of crime, not upon the commission in this issue. II. CONCLUSION The Court must take mandatory judicial notice of the laws detailed within. I ask the Court to take judicial notice of the Judicial Canons of the State of California, specifically Canon 3 D (2) which states: Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action. I am requesting the court to remand attorney J. David Horspool, State Bar number 98587, into custody at this time for the crimes committed against Petitioner, detailed and substantiated herein. He is clearly a menace to society and a disgrace to his profession: Signed this 30th day of September, 2009 ________________________________________ Janet C. Phelan Briancon, France