letter-bos-deficiencies-amended-objection.docx

1035-00005 · Marguerite Delp · Correspondence/External

letter-bos-deficiencies-amended-objection.docx DOCUMENT M&A / Corporate

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CALDERWOOD & HARKNESS LLP Attorneys at Law 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-9200 Facsimile: (213) 555-9201

January 20, 2023

VIA EMAIL AND U.S. MAIL

Damian R. Ortega, Esq. Lydia Kwan, Esq. Brennan, Ortega & Saldívar LLP 1900 Avenue of the Stars, Suite 2100 Los Angeles, California 90067

Re: In re Estate of Teodoro R. Fonseca, Los Angeles County Superior Court, Probate Division, Case No. 22STPB09714 — Deficiencies in Contestants' Amended Objection Filed January 9, 2023

Dear Mr. Ortega and Ms. Kwan:

We write on behalf of our client, Marguerite D. Fonseca, petitioner in the above-referenced probate proceeding, in connection with the Amended Objection to Petition for Probate of Will and for Letters Testamentary ("Amended Objection") filed on January 9, 2023, by Rafael T. Fonseca, Isabela C. Fonseca-Greer, and Nicolás R. Fonseca (collectively, "Contestants"). We have carefully reviewed the Amended Objection in its entirety, including all exhibits attached thereto, and are compelled to bring to your attention several significant legal and factual deficiencies that permeate the filing.

As set forth more fully below, the Amended Objection suffers from foundational defects that go to the heart of the claims asserted by Contestants. Most notably, the Amended Objection introduces for the first time a claim that a premarital agreement, allegedly dated May 30, 2008, exists and governs the characterization of certain estate assets. This new allegation, which was absent from the original Objection filed on November 14, 2022, is unsupported by competent evidence and raises serious questions of authenticity and enforceability. In addition, the Amended Objection's characterization of several substantial marital assets as the decedent's separate property lacks the factual specificity and evidentiary support required under California law.

The purpose of this letter is to put you and your clients on formal notice of these deficiencies and to advise you that Ms. Fonseca intends to seek appropriate relief from the Court should Contestants fail to cure the identified deficiencies within a reasonable period. Ms. Fonseca's formal Response to the Amended Objection is currently in preparation and will be filed with the Court in due course.

I. Deficiencies Regarding the Alleged Premarital Agreement

The centerpiece of the Amended Objection is the assertion that a premarital agreement between Teodoro R. Fonseca and Marguerite D. Fonseca, purportedly executed on or about May 30, 2008—approximately two weeks prior to the parties' marriage on June 14, 2008—controls the characterization of certain assets of the estate. For the reasons set forth below, this claim is fundamentally deficient in multiple respects.

A. Failure to Produce the Original Document

The Amended Objection relies upon what Contestants describe as a premarital agreement purportedly executed on or about May 30, 2008. However, as you are aware, Contestants have produced only a photocopy of a two-page document purporting to be this agreement. In our prior demand letter dated December 1, 2022, we expressly requested production of the original executed premarital agreement. As of the date of this letter, no original document has been produced, nor has any explanation been provided for its absence.

The deficiencies in the photocopy itself are substantial and immediately apparent. While the photocopy bears what appears to be a signature attributed to Teodoro R. Fonseca on the second page, it critically and conspicuously lacks the signature of Marguerite D. Fonseca on that same page. The absence of one party's signature on a document purporting to be a bilateral agreement is not a minor irregularity—it is a fundamental defect that calls into question whether the document was ever fully executed or, indeed, whether it ever constituted a binding agreement between the parties at all. Without the original document in hand, there is no means by which the Court or the parties can assess the completeness or integrity of the purported agreement. We note that the document, as produced, is entirely consistent with an incomplete draft that was never finalized or executed by both parties.

B. Authentication Deficiencies

Under California Evidence Code sections 1400 and 1401, a writing must be authenticated before it may be received in evidence. Authentication of a writing is required before secondary evidence of its content may be received. As articulated by the California Supreme Court, authentication requires "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is." (Evid. Code, § 1400.) A proponent must produce evidence demonstrating that the proffered writing is genuine, that it is what it purports to be, and that it has not been altered or tampered with.

The photocopy produced by Contestants satisfies none of these requirements. A photocopy of a purported agreement, lacking one party's signature and without any chain of custody or provenance established, does not satisfy authentication standards under the Evidence Code. Contestants have not provided any declaration or testimony—from any witness—establishing who possessed the original document, when or by whom the photocopy was made, how the photocopy came into Contestants' possession, or the circumstances explaining the original's absence. No custodial witness has been identified. No affidavit of any kind accompanies the photocopy. The provenance of the document remains entirely unexplained.

These are not mere technicalities. The authentication requirements of the Evidence Code serve a vital gatekeeping function, ensuring that documents presented to the Court are genuine and reliable. A photocopy of uncertain provenance, missing the signature of one purported party, is the paradigmatic case in which authentication requirements must be strictly enforced.

C. Signs of Alteration and Forensic Concerns

Given the significant irregularities apparent on the face of the produced photocopy, Calderwood & Harkness LLP has retained Dr. Elaine Prescott of Brindoval Forensic Document Services LLC, located at 921 North La Brea Avenue, Suite 200, Los Angeles, California 90038, to conduct a forensic examination of the photocopy and any related materials that may be produced in discovery. Dr. Prescott is a board-certified forensic document examiner with over twenty years of experience in document authentication, handwriting analysis, and the detection of document alteration.

While Dr. Prescott's analysis is ongoing and a comprehensive written report is forthcoming, her preliminary examination has raised concerns regarding potential alteration of the document. Specifically, aspects of the document's formatting, printing characteristics, and the appearance of certain markings on the photocopy are consistent with a document that may have been modified or assembled from multiple sources. We reserve the right to present Dr. Prescott's full findings to the Court at the appropriate time.

We reiterate that the absence of Ms. Fonseca's signature on the second page is consistent with an incomplete or draft document, not a binding, fully executed agreement. Moreover, and critically, Ms. Fonseca affirmatively denies that she ever executed any premarital agreement with Teodoro R. Fonseca, whether on May 30, 2008, or at any other time. Ms. Fonseca has no recollection of any such agreement being presented to her, negotiated with her, or discussed with her prior to the parties' marriage.

D. Failure to Satisfy the Requirements of California Family Code Sections 1610–1617

Even assuming, arguendo, that the document produced by Contestants could be authenticated as a genuine, fully executed premarital agreement—a contention Ms. Fonseca vigorously disputes—the Amended Objection is nevertheless deficient because it fails to allege facts demonstrating that the purported agreement satisfies the enforceability requirements of the Uniform Premarital Agreement Act as adopted in California Family Code sections 1610 through 1617.

Under California Family Code section 1615, a premarital agreement is not enforceable if the party against whom enforcement is sought proves either that (a) the party did not execute the agreement voluntarily, or (b) the agreement was unconscionable when executed and, before execution, the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive any right to disclosure beyond what was provided, and did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

The Amended Objection is conspicuously and entirely silent on several mandatory elements of enforceability. Specifically, no facts are alleged regarding the following:

(i) Whether Ms. Fonseca was represented by independent legal counsel at the time of the purported agreement's execution, or whether she voluntarily waived such representation in a separate writing, as required by California Family Code section 1615(c)(1). The Amended Objection makes no reference whatsoever to independent legal counsel for Ms. Fonseca.

(ii) Whether Ms. Fonseca was provided with fair, reasonable, and full disclosure of the property and financial obligations of Mr. Fonseca prior to execution, as required by California Family Code section 1615(a)(2). No schedule of assets or financial disclosures is attached to or referenced in the purported agreement or the Amended Objection.

(iii) Whether the agreement was executed voluntarily by Ms. Fonseca, considering the totality of the circumstances, including whether there was a minimum seven-day period between the date the agreement and any waiver of counsel was first presented to Ms. Fonseca and the date of its execution, as required by California Family Code section 1615(c)(2). Given that the purported agreement is dated May 30, 2008, and the marriage took place on June 14, 2008, the temporal proximity of these events raises significant questions regarding voluntariness and the adequacy of the period for review and consideration.

(iv) Whether Ms. Fonseca had adequate opportunity to consult with independent counsel of her own choosing prior to execution. The Amended Objection is entirely devoid of any factual allegations addressing this critical statutory requirement.

In sum, the Amended Objection's treatment of the alleged premarital agreement is conclusory in the extreme. It asserts the existence and validity of the agreement without alleging any of the facts necessary to establish its enforceability under governing California law. This deficiency alone warrants either amendment or withdrawal of the premarital agreement claim.

II. Deficiencies Regarding the Separate Property Characterization of Lumiére Canyon Studios LLC

A. Insufficient Factual Basis

The Amended Objection asserts that the decedent's fifty percent (50%) membership interest in Lumiére Canyon Studios LLC ("LCS") is his separate property. This characterization is factually unsupported and legally untenable.

Lumiére Canyon Studios LLC was formed on March 18, 2009, as a California limited liability company (California Secretary of State Filing No. 200906410337). The company was co-founded by Teodoro R. Fonseca and Marguerite D. Fonseca during their marriage, which commenced on June 14, 2008—more than nine months before the entity's formation. The company's operating agreement, also dated March 18, 2009, expressly provides for equal fifty percent/fifty percent (50%/50%) membership interests held by husband and wife. Both Mr. and Ms. Fonseca are identified as initial members and managers of the LLC in the filed Articles of Organization.

Under California's community property regime, property acquired during marriage is presumed to be community property. (Cal. Fam. Code, § 760.) An LLC membership interest acquired by either or both spouses during the marriage is subject to this presumption. The formation of LCS during the Fonseca marriage, with both spouses as co-founders and equal members, places the community property character of this interest beyond reasonable dispute.

B. Burden of Proof on the Separate Property Claim

The burden of proof to rebut the community property presumption falls squarely on the party asserting separate property character. (See In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1591.) Contestants bear this burden with respect to the LCS membership interest, and their Amended Objection falls far short of satisfying it.

Contestants assert in conclusory fashion that the LLC was "funded substantially with separate property capital," but fail entirely to identify the specific source, amount, or nature of any alleged separate property contributions. No bank records, wire transfer confirmations, account statements, or other financial documentation is attached to or referenced in the Amended Objection in support of this assertion. No tracing analysis of any kind is provided. The mere allegation that pre-marital funds were contributed to an entity formed during marriage, without any supporting evidence or factual detail whatsoever, is patently insufficient to overcome the community property presumption. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 612 [the separate property proponent must trace the asset to a separate property source with reasonable certainty and specificity].)

C. Enterprise Value and Community Contributions

The significance of this characterization dispute cannot be overstated. According to the company's most recent internal valuation, prepared as of December 31, 2021, by Ridgeline Capital Advisors LLC, LCS had an enterprise value of approximately thirty-one million six hundred thousand dollars ($31,600,000). The decedent's fifty percent membership interest is accordingly valued at approximately fifteen million eight hundred thousand dollars ($15,800,000). This is the single largest asset in the estate.

Both Teodoro R. Fonseca and Marguerite D. Fonseca contributed their creative efforts, labor, expertise, and industry relationships throughout the duration of their marriage to build Lumiére Canyon Studios LLC into a successful entertainment production company. The company's intellectual property portfolio encompasses fourteen (14) feature films and six (6) television series, all developed, produced, or co-produced during the marriage. Ms. Fonseca served as the company's Chief Creative Officer from its inception, directing creative development, overseeing production, and managing key talent relationships. The community character of the membership interest is further and independently supported by the substantial community labor and effort that generated the enterprise's value.

III. Additional Deficiencies in Other Asset Characterizations

A. Pacific Rim Narrative Partners LLC

The Amended Objection also characterizes the decedent's thirty-five percent (35%) membership interest in Pacific Rim Narrative Partners LLC ("PRNP") (California Secretary of State Filing No. 201518720492) as the decedent's separate property. PRNP was formed in 2015, squarely during the Fonseca marriage. The fund manages approximately seventy-eight million five hundred thousand dollars ($78,500,000) in assets under management, and the decedent's thirty-five percent membership interest is valued at approximately twenty-seven million four hundred seventy-five thousand dollars ($27,475,000).

As with LCS, Contestants have not alleged facts sufficient to overcome the community property presumption for this interest, which was acquired during the marriage. No tracing analysis is provided. No separate property source is identified with any specificity. The Amended Objection's conclusory assertion that PRNP is separate property fails as a matter of law, and the absence of any supporting factual allegations renders the claim deficient on its face.

B. The Malibu Beach House — 27100 Pacific Coast Highway, Malibu, CA 90265

The Amended Objection claims that the real property located at 27100 Pacific Coast Highway, Malibu, California 90265 (the "Malibu Beach House") is the decedent's separate property, based solely on the fact that the property was purchased on August 22, 2007, for four million seven hundred fifty thousand dollars ($4,750,000), prior to the June 14, 2008 marriage. While it is true that the original purchase of the property predated the marriage, the Amended Objection's categorical characterization of this asset as entirely separate property is legally deficient because it fails to acknowledge or address the substantial community property contributions made to the property during the marriage.

The community property contributions to the Malibu Beach House are extensive and well documented:

(i) Community-Funded Renovations. Approximately one million eight hundred thousand dollars ($1,800,000) in renovations and improvements were completed in 2016, funded entirely from community property sources, including joint bank accounts maintained by both spouses at Glenrock Capital Markets and Westvale Securities. These renovations included a complete kitchen and primary suite remodel, a pool house addition, seismic retrofitting, and landscaping redesign.

(ii) Community-Funded Mortgage Payments. Approximately two million sixteen thousand four hundred dollars ($2,016,400) in mortgage payments were made from joint accounts during the marriage. The mortgage carried a monthly payment of approximately fourteen thousand two hundred dollars ($14,200). Between the date of marriage in June 2008 and the payoff of the mortgage in March 2020, approximately one hundred forty-two (142) monthly payments were made, all from community property funds held in joint accounts.

The aggregate community property contributions to the Malibu Beach House total approximately three million eight hundred sixteen thousand four hundred dollars ($3,816,400). Against the property's current fair market value of approximately six million two hundred thousand dollars ($6,200,000), as reflected in a recent appraisal by Pacific Appraisal Group dated October 15, 2022, these community contributions establish a substantial community property interest of approximately 61.6% under well-established Moore/Marsden tracing principles. (See In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426.)

The Amended Objection's blanket characterization of the Malibu Beach House as the decedent's separate property, without any acknowledgment of the community property interest established through these contributions, is legally deficient and factually misleading.

IV. Isabela C. Fonseca-Greer's Promissory Note Claim and Nicolás R. Fonseca's Oral Promise Claim

We note that the Amended Objection incorporates by reference the individual claims of Isabela C. Fonseca-Greer, who asserts a claim based on an alleged promissory note dated January 15, 2020, in the principal amount of one million two hundred thousand dollars ($1,200,000), plus accrued interest, purportedly made by Teodoro R. Fonseca to Amber Light Documentary Films LLC, and of Nicolás R. Fonseca, who asserts a claim based on an alleged oral promise by the decedent to pay three hundred eighty-seven thousand five hundred dollars ($387,500) in educational expenses.

Ms. Fonseca reserves the right to address the deficiencies in these claims in detail in her formal Response to be filed with the Court. We note, however, that both claims raise significant legal and evidentiary concerns, including but not limited to questions of enforceability, statute of frauds compliance, and the absence of corroborating documentation, which will be fully briefed at the appropriate time.

V. Demands and Next Steps

In light of the foregoing, and on behalf of Ms. Fonseca, we make the following demands:

1. Production of Original Premarital Agreement. Contestants and their counsel are demanded to produce the original of the alleged premarital agreement forthwith. In the alternative, if the original cannot be produced, Contestants must provide a declaration under penalty of perjury explaining in detail the absence of the original, the provenance of the photocopy, the identity of the person or persons who had custody of the original document, and the circumstances under which the original was lost, destroyed, or otherwise became unavailable.

2. Supplementation of Separate Property Claims. Contestants are demanded to supplement their Amended Objection with specific factual allegations and supporting documentation for the separate property characterization of (a) Lumiére Canyon Studios LLC, (b) Pacific Rim Narrative Partners LLC, and (c) the Malibu Beach House located at 27100 Pacific Coast Highway, Malibu, California 90265. Such supplementation should include, at a minimum, a complete tracing analysis identifying the specific separate property sources alleged, supported by contemporaneous financial records.

3. Consequences of Non-Compliance. If Contestants fail to address the deficiencies identified in this letter, Ms. Fonseca will seek appropriate relief from the Court, including but not limited to motions to strike unsupported allegations from the Amended Objection, evidentiary motions to exclude the unauthenticated photocopy of the purported premarital agreement, and a request for sanctions pursuant to California Code of Civil Procedure section 128.7 for the filing of claims lacking evidentiary support.

Ms. Fonseca's formal Response to the Amended Objection will be filed with the Court in due course. We respectfully request that Contestants respond to the demands set forth in this letter no later than February 3, 2023.

VI. Reservation of Rights

All rights, remedies, claims, and defenses of Marguerite D. Fonseca, whether at law or in equity, are expressly reserved and not waived. Nothing in this letter, including any statement of fact or law contained herein, shall be deemed a waiver of any privilege, right, claim, or defense available to Ms. Fonseca. This letter is sent without prejudice to any position Ms. Fonseca may take in this proceeding or in any related or subsequent proceeding. The failure to address any particular allegation or claim in the Amended Objection in this letter shall not be construed as an admission or concession regarding the merits of such allegation or claim.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Elliot Nguyen Associate 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071

cc: Howard Quinn, Esq., Calderwood & Harkness LLP Marguerite D. Fonseca, 1847 Coldwater Canyon Drive, Beverly Hills, CA 90210

CALDERWOOD & HARKNESS LLP Attorneys at Law 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-9200 Facsimile: (213) 555-9201
January 20, 2023
VIA EMAIL AND U.S. MAIL
Damian R. Ortega, Esq. Lydia Kwan, Esq. Brennan, Ortega & Saldívar LLP 1900 Avenue of the Stars, Suite 2100 Los Angeles, California 90067
Re: In re Estate of Teodoro R. Fonseca, Los Angeles County Superior Court, Probate Division, Case No. 22STPB09714 — Deficiencies in Contestants' Amended Objection Filed January 9, 2023
Dear Mr. Ortega and Ms. Kwan:
We write on behalf of our client, Marguerite D. Fonseca, petitioner in the above-referenced probate proceeding, in connection with the Amended Objection to Petition for Probate of Will and for Letters Testamentary ("Amended Objection") filed on January 9, 2023, by Rafael T. Fonseca, Isabela C. Fonseca-Greer, and Nicolás R. Fonseca (collectively, "Contestants"). We have carefully reviewed the Amended Objection in its entirety, including all exhibits attached thereto, and are compelled to bring to your attention several significant legal and factual deficiencies that permeate the filing.
As set forth more fully below, the Amended Objection suffers from foundational defects that go to the heart of the claims asserted by Contestants. Most notably, the Amended Objection introduces for the first time a claim that a premarital agreement, allegedly dated May 30, 2008, exists and governs the characterization of certain estate assets. This new allegation, which was absent from the original Objection filed on November 14, 2022, is unsupported by competent evidence and raises serious questions of authenticity and enforceability. In addition, the Amended Objection's characterization of several substantial marital assets as the decedent's separate property lacks the factual specificity and evidentiary support required under California law.
The purpose of this letter is to put you and your clients on formal notice of these deficiencies and to advise you that Ms. Fonseca intends to seek appropriate relief from the Court should Contestants fail to cure the identified deficiencies within a reasonable period. Ms. Fonseca's formal Response to the Amended Objection is currently in preparation and will be filed with the Court in due course.
I. Deficiencies Regarding the Alleged Premarital Agreement
The centerpiece of the Amended Objection is the assertion that a premarital agreement between Teodoro R. Fonseca and Marguerite D. Fonseca, purportedly executed on or about May 30, 2008—approximately two weeks prior to the parties' marriage on June 14, 2008—controls the characterization of certain assets of the estate. For the reasons set forth below, this claim is fundamentally deficient in multiple respects.
A. Failure to Produce the Original Document
The Amended Objection relies upon what Contestants describe as a premarital agreement purportedly executed on or about May 30, 2008. However, as you are aware, Contestants have produced only a photocopy of a two-page document purporting to be this agreement. In our prior demand letter dated December 1, 2022, we expressly requested production of the original executed premarital agreement. As of the date of this letter, no original document has been produced, nor has any explanation been provided for its absence.
The deficiencies in the photocopy itself are substantial and immediately apparent. While the photocopy bears what appears to be a signature attributed to Teodoro R. Fonseca on the second page, it critically and conspicuously lacks the signature of Marguerite D. Fonseca on that same page. The absence of one party's signature on a document purporting to be a bilateral agreement is not a minor irregularity—it is a fundamental defect that calls into question whether the document was ever fully executed or, indeed, whether it ever constituted a binding agreement between the parties at all. Without the original document in hand, there is no means by which the Court or the parties can assess the completeness or integrity of the purported agreement. We note that the document, as produced, is entirely consistent with an incomplete draft that was never finalized or executed by both parties.
B. Authentication Deficiencies
Under California Evidence Code sections 1400 and 1401, a writing must be authenticated before it may be received in evidence. Authentication of a writing is required before secondary evidence of its content may be received. As articulated by the California Supreme Court, authentication requires "the introduction of evidence sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is." (Evid. Code, § 1400.) A proponent must produce evidence demonstrating that the proffered writing is genuine, that it is what it purports to be, and that it has not been altered or tampered with.
The photocopy produced by Contestants satisfies none of these requirements. A photocopy of a purported agreement, lacking one party's signature and without any chain of custody or provenance established, does not satisfy authentication standards under the Evidence Code. Contestants have not provided any declaration or testimony—from any witness—establishing who possessed the original document, when or by whom the photocopy was made, how the photocopy came into Contestants' possession, or the circumstances explaining the original's absence. No custodial witness has been identified. No affidavit of any kind accompanies the photocopy. The provenance of the document remains entirely unexplained.
These are not mere technicalities. The authentication requirements of the Evidence Code serve a vital gatekeeping function, ensuring that documents presented to the Court are genuine and reliable. A photocopy of uncertain provenance, missing the signature of one purported party, is the paradigmatic case in which authentication requirements must be strictly enforced.
C. Signs of Alteration and Forensic Concerns
Given the significant irregularities apparent on the face of the produced photocopy, Calderwood & Harkness LLP has retained Dr. Elaine Prescott of Brindoval Forensic Document Services LLC, located at 921 North La Brea Avenue, Suite 200, Los Angeles, California 90038, to conduct a forensic examination of the photocopy and any related materials that may be produced in discovery. Dr. Prescott is a board-certified forensic document examiner with over twenty years of experience in document authentication, handwriting analysis, and the detection of document alteration.
While Dr. Prescott's analysis is ongoing and a comprehensive written report is forthcoming, her preliminary examination has raised concerns regarding potential alteration of the document. Specifically, aspects of the document's formatting, printing characteristics, and the appearance of certain markings on the photocopy are consistent with a document that may have been modified or assembled from multiple sources. We reserve the right to present Dr. Prescott's full findings to the Court at the appropriate time.
We reiterate that the absence of Ms. Fonseca's signature on the second page is consistent with an incomplete or draft document, not a binding, fully executed agreement. Moreover, and critically, Ms. Fonseca affirmatively denies that she ever executed any premarital agreement with Teodoro R. Fonseca, whether on May 30, 2008, or at any other time. Ms. Fonseca has no recollection of any such agreement being presented to her, negotiated with her, or discussed with her prior to the parties' marriage.
D. Failure to Satisfy the Requirements of California Family Code Sections 1610–1617
Even assuming, arguendo, that the document produced by Contestants could be authenticated as a genuine, fully executed premarital agreement—a contention Ms. Fonseca vigorously disputes—the Amended Objection is nevertheless deficient because it fails to allege facts demonstrating that the purported agreement satisfies the enforceability requirements of the Uniform Premarital Agreement Act as adopted in California Family Code sections 1610 through 1617.
Under California Family Code section 1615, a premarital agreement is not enforceable if the party against whom enforcement is sought proves either that (a) the party did not execute the agreement voluntarily, or (b) the agreement was unconscionable when executed and, before execution, the party was not provided a fair, reasonable, and full disclosure of the property or financial obligations of the other party, did not voluntarily and expressly waive any right to disclosure beyond what was provided, and did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.
The Amended Objection is conspicuously and entirely silent on several mandatory elements of enforceability. Specifically, no facts are alleged regarding the following:
(i) Whether Ms. Fonseca was represented by independent legal counsel at the time of the purported agreement's execution, or whether she voluntarily waived such representation in a separate writing, as required by California Family Code section 1615(c)(1). The Amended Objection makes no reference whatsoever to independent legal counsel for Ms. Fonseca.
(ii) Whether Ms. Fonseca was provided with fair, reasonable, and full disclosure of the property and financial obligations of Mr. Fonseca prior to execution, as required by California Family Code section 1615(a)(2). No schedule of assets or financial disclosures is attached to or referenced in the purported agreement or the Amended Objection.
(iii) Whether the agreement was executed voluntarily by Ms. Fonseca, considering the totality of the circumstances, including whether there was a minimum seven-day period between the date the agreement and any waiver of counsel was first presented to Ms. Fonseca and the date of its execution, as required by California Family Code section 1615(c)(2). Given that the purported agreement is dated May 30, 2008, and the marriage took place on June 14, 2008, the temporal proximity of these events raises significant questions regarding voluntariness and the adequacy of the period for review and consideration.
(iv) Whether Ms. Fonseca had adequate opportunity to consult with independent counsel of her own choosing prior to execution. The Amended Objection is entirely devoid of any factual allegations addressing this critical statutory requirement.
In sum, the Amended Objection's treatment of the alleged premarital agreement is conclusory in the extreme. It asserts the existence and validity of the agreement without alleging any of the facts necessary to establish its enforceability under governing California law. This deficiency alone warrants either amendment or withdrawal of the premarital agreement claim.
II. Deficiencies Regarding the Separate Property Characterization of Lumiére Canyon Studios LLC
A. Insufficient Factual Basis
The Amended Objection asserts that the decedent's fifty percent (50%) membership interest in Lumiére Canyon Studios LLC ("LCS") is his separate property. This characterization is factually unsupported and legally untenable.
Lumiére Canyon Studios LLC was formed on March 18, 2009, as a California limited liability company (California Secretary of State Filing No. 200906410337). The company was co-founded by Teodoro R. Fonseca and Marguerite D. Fonseca during their marriage, which commenced on June 14, 2008—more than nine months before the entity's formation. The company's operating agreement, also dated March 18, 2009, expressly provides for equal fifty percent/fifty percent (50%/50%) membership interests held by husband and wife. Both Mr. and Ms. Fonseca are identified as initial members and managers of the LLC in the filed Articles of Organization.
Under California's community property regime, property acquired during marriage is presumed to be community property. (Cal. Fam. Code, § 760.) An LLC membership interest acquired by either or both spouses during the marriage is subject to this presumption. The formation of LCS during the Fonseca marriage, with both spouses as co-founders and equal members, places the community property character of this interest beyond reasonable dispute.
B. Burden of Proof on the Separate Property Claim
The burden of proof to rebut the community property presumption falls squarely on the party asserting separate property character. (See In re Marriage of Ettefagh (2007) 150 Cal.App.4th 1578, 1591.) Contestants bear this burden with respect to the LCS membership interest, and their Amended Objection falls far short of satisfying it.
Contestants assert in conclusory fashion that the LLC was "funded substantially with separate property capital," but fail entirely to identify the specific source, amount, or nature of any alleged separate property contributions. No bank records, wire transfer confirmations, account statements, or other financial documentation is attached to or referenced in the Amended Objection in support of this assertion. No tracing analysis of any kind is provided. The mere allegation that pre-marital funds were contributed to an entity formed during marriage, without any supporting evidence or factual detail whatsoever, is patently insufficient to overcome the community property presumption. (See In re Marriage of Mix (1975) 14 Cal.3d 604, 612 [the separate property proponent must trace the asset to a separate property source with reasonable certainty and specificity].)
C. Enterprise Value and Community Contributions
The significance of this characterization dispute cannot be overstated. According to the company's most recent internal valuation, prepared as of December 31, 2021, by Ridgeline Capital Advisors LLC, LCS had an enterprise value of approximately thirty-one million six hundred thousand dollars ($31,600,000). The decedent's fifty percent membership interest is accordingly valued at approximately fifteen million eight hundred thousand dollars ($15,800,000). This is the single largest asset in the estate.
Both Teodoro R. Fonseca and Marguerite D. Fonseca contributed their creative efforts, labor, expertise, and industry relationships throughout the duration of their marriage to build Lumiére Canyon Studios LLC into a successful entertainment production company. The company's intellectual property portfolio encompasses fourteen (14) feature films and six (6) television series, all developed, produced, or co-produced during the marriage. Ms. Fonseca served as the company's Chief Creative Officer from its inception, directing creative development, overseeing production, and managing key talent relationships. The community character of the membership interest is further and independently supported by the substantial community labor and effort that generated the enterprise's value.
III. Additional Deficiencies in Other Asset Characterizations
A. Pacific Rim Narrative Partners LLC
The Amended Objection also characterizes the decedent's thirty-five percent (35%) membership interest in Pacific Rim Narrative Partners LLC ("PRNP") (California Secretary of State Filing No. 201518720492) as the decedent's separate property. PRNP was formed in 2015, squarely during the Fonseca marriage. The fund manages approximately seventy-eight million five hundred thousand dollars ($78,500,000) in assets under management, and the decedent's thirty-five percent membership interest is valued at approximately twenty-seven million four hundred seventy-five thousand dollars ($27,475,000).
As with LCS, Contestants have not alleged facts sufficient to overcome the community property presumption for this interest, which was acquired during the marriage. No tracing analysis is provided. No separate property source is identified with any specificity. The Amended Objection's conclusory assertion that PRNP is separate property fails as a matter of law, and the absence of any supporting factual allegations renders the claim deficient on its face.
B. The Malibu Beach House — 27100 Pacific Coast Highway, Malibu, CA 90265
The Amended Objection claims that the real property located at 27100 Pacific Coast Highway, Malibu, California 90265 (the "Malibu Beach House") is the decedent's separate property, based solely on the fact that the property was purchased on August 22, 2007, for four million seven hundred fifty thousand dollars ($4,750,000), prior to the June 14, 2008 marriage. While it is true that the original purchase of the property predated the marriage, the Amended Objection's categorical characterization of this asset as entirely separate property is legally deficient because it fails to acknowledge or address the substantial community property contributions made to the property during the marriage.
The community property contributions to the Malibu Beach House are extensive and well documented:
(i) Community-Funded Renovations. Approximately one million eight hundred thousand dollars ($1,800,000) in renovations and improvements were completed in 2016, funded entirely from community property sources, including joint bank accounts maintained by both spouses at Glenrock Capital Markets and Westvale Securities. These renovations included a complete kitchen and primary suite remodel, a pool house addition, seismic retrofitting, and landscaping redesign.
(ii) Community-Funded Mortgage Payments. Approximately two million sixteen thousand four hundred dollars ($2,016,400) in mortgage payments were made from joint accounts during the marriage. The mortgage carried a monthly payment of approximately fourteen thousand two hundred dollars ($14,200). Between the date of marriage in June 2008 and the payoff of the mortgage in March 2020, approximately one hundred forty-two (142) monthly payments were made, all from community property funds held in joint accounts.
The aggregate community property contributions to the Malibu Beach House total approximately three million eight hundred sixteen thousand four hundred dollars ($3,816,400). Against the property's current fair market value of approximately six million two hundred thousand dollars ($6,200,000), as reflected in a recent appraisal by Pacific Appraisal Group dated October 15, 2022, these community contributions establish a substantial community property interest of approximately 61.6% under well-established Moore/Marsden tracing principles. (See In re Marriage of Moore (1980) 28 Cal.3d 366; In re Marriage of Marsden (1982) 130 Cal.App.3d 426.)
The Amended Objection's blanket characterization of the Malibu Beach House as the decedent's separate property, without any acknowledgment of the community property interest established through these contributions, is legally deficient and factually misleading.
IV. Isabela C. Fonseca-Greer's Promissory Note Claim and Nicolás R. Fonseca's Oral Promise Claim
We note that the Amended Objection incorporates by reference the individual claims of Isabela C. Fonseca-Greer, who asserts a claim based on an alleged promissory note dated January 15, 2020, in the principal amount of one million two hundred thousand dollars ($1,200,000), plus accrued interest, purportedly made by Teodoro R. Fonseca to Amber Light Documentary Films LLC, and of Nicolás R. Fonseca, who asserts a claim based on an alleged oral promise by the decedent to pay three hundred eighty-seven thousand five hundred dollars ($387,500) in educational expenses.
Ms. Fonseca reserves the right to address the deficiencies in these claims in detail in her formal Response to be filed with the Court. We note, however, that both claims raise significant legal and evidentiary concerns, including but not limited to questions of enforceability, statute of frauds compliance, and the absence of corroborating documentation, which will be fully briefed at the appropriate time.
V. Demands and Next Steps
In light of the foregoing, and on behalf of Ms. Fonseca, we make the following demands:
1. Production of Original Premarital Agreement. Contestants and their counsel are demanded to produce the original of the alleged premarital agreement forthwith. In the alternative, if the original cannot be produced, Contestants must provide a declaration under penalty of perjury explaining in detail the absence of the original, the provenance of the photocopy, the identity of the person or persons who had custody of the original document, and the circumstances under which the original was lost, destroyed, or otherwise became unavailable.
2. Supplementation of Separate Property Claims. Contestants are demanded to supplement their Amended Objection with specific factual allegations and supporting documentation for the separate property characterization of (a) Lumiére Canyon Studios LLC, (b) Pacific Rim Narrative Partners LLC, and (c) the Malibu Beach House located at 27100 Pacific Coast Highway, Malibu, California 90265. Such supplementation should include, at a minimum, a complete tracing analysis identifying the specific separate property sources alleged, supported by contemporaneous financial records.
3. Consequences of Non-Compliance. If Contestants fail to address the deficiencies identified in this letter, Ms. Fonseca will seek appropriate relief from the Court, including but not limited to motions to strike unsupported allegations from the Amended Objection, evidentiary motions to exclude the unauthenticated photocopy of the purported premarital agreement, and a request for sanctions pursuant to California Code of Civil Procedure section 128.7 for the filing of claims lacking evidentiary support.
Ms. Fonseca's formal Response to the Amended Objection will be filed with the Court in due course. We respectfully request that Contestants respond to the demands set forth in this letter no later than February 3, 2023.
VI. Reservation of Rights
All rights, remedies, claims, and defenses of Marguerite D. Fonseca, whether at law or in equity, are expressly reserved and not waived. Nothing in this letter, including any statement of fact or law contained herein, shall be deemed a waiver of any privilege, right, claim, or defense available to Ms. Fonseca. This letter is sent without prejudice to any position Ms. Fonseca may take in this proceeding or in any related or subsequent proceeding. The failure to address any particular allegation or claim in the Amended Objection in this letter shall not be construed as an admission or concession regarding the merits of such allegation or claim.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Elliot Nguyen Associate 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071
cc: Howard Quinn, Esq., Calderwood & Harkness LLP Marguerite D. Fonseca, 1847 Coldwater Canyon Drive, Beverly Hills, CA 90210

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