letter-bos-demand-original-prenup.docx

1035-00005 · Marguerite Delp · Correspondence/External

letter-bos-demand-original-prenup.docx DOCUMENT M&A / Corporate

7 / 35 ← → ✕

CALDERWOOD & HARKNESS LLP Attorneys at Law 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-8200 Facsimile: (213) 555-8201 www.calderwoodharkness.com

December 1, 2022

VIA U.S. MAIL AND ELECTRONIC MAIL

Howard Quinn Partner Direct Dial: (213) 555-8247 Direct Fax: (213) 555-8299

Email: hquinn@calderwoodharkness.com

Damian R. Ortega, Esq. Partner 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, Case No. 22STPB09714

Calderwood & Harkness LLP Matter No. 1035-00005

Demand for Production of Original Premarital Agreement

Dear Mr. Ortega:

This firm represents Marguerite D. Fonseca, the surviving spouse of Teodoro R. Fonseca, who passed away on September 3, 2022. As you are aware, Ms. Fonseca is the petitioner in the above-referenced probate proceeding currently pending before the Los Angeles County Superior Court. I write in response to the initial objection to Ms. Fonseca's petition that your firm filed on November 14, 2022, on behalf of Rafael T. Fonseca, Isabela C. Fonseca-Greer, and Nicolás R. Fonseca (collectively, the "Contestants"). The purpose of this letter is to formally demand the immediate production of the original premarital agreement that Contestants allege was executed on or about May 30, 2008 — approximately two weeks before the marriage of Teodoro and Marguerite Fonseca on June 14, 2008 — and to set forth the grounds upon which this demand is made.

I. Description of the Document Produced to Date

In connection with the filing of Contestants' initial objection, your office produced a single photocopy of a two-page document purporting to be a premarital agreement dated May 30, 2008 (the "Photocopy"). We acknowledge receipt of that Photocopy and have reviewed it carefully. We note the following with respect to the document as produced:

The Photocopy bears what appears to be a reproduction of Teodoro R. Fonseca's signature on the second page of the document, above a signature line designated for the "Prospective Husband." However — and this is of critical significance — the Photocopy conspicuously and entirely lacks any signature by Marguerite D. Fonseca. The signature line designated for the "Prospective Wife" on the second page is blank. The document is, on its face, incomplete. No notarial acknowledgment, witness attestation, or other indicia of execution by Ms. Fonseca appears anywhere in the Photocopy.

We further note that if the document were, in fact, a valid and enforceable premarital agreement, its operative provisions would purportedly classify all media-related assets originated or conceived prior to the marriage as Teodoro R. Fonseca's separate property, thereby excluding those assets from the community estate. The implications of such a classification for the administration of the estate and for Ms. Fonseca's rights as surviving spouse are, of course, substantial. It is therefore all the more essential that the authenticity and completeness of the document be rigorously established before any reliance is placed upon it.

To date, this incomplete Photocopy is the sole version of the alleged premarital agreement that has been produced or referenced by Contestants in any filing or communication. No original document has been produced. No certified or authenticated copy has been tendered. No explanation has been offered regarding the absence of Ms. Fonseca's signature or the circumstances under which the Photocopy came into Contestants' possession.

II. Deficiencies in the Photocopy

The Photocopy produced by your office suffers from numerous and fatal deficiencies that render it wholly inadequate as a basis for Contestants' claims. We identify these deficiencies as follows:

A. The Document Is Only a Photocopy. The Photocopy is not an original instrument. It is a reproduction of unknown provenance, and its authenticity cannot be verified through physical examination of ink, paper stock, toner characteristics, impression markings, or any other forensic indicia that would ordinarily be available upon inspection of an original executed instrument. The quality and characteristics of the reproduction itself — including the uniformity of ink density, the presence or absence of artifacts, and the alignment of text relative to the signature — raise preliminary questions that can only be resolved through examination of the original, if one exists.

B. The Document Lacks Ms. Fonseca's Signature. The second page of the Photocopy, which purports to be the signature page for a two-party agreement between Teodoro R. Fonseca and Marguerite D. Fonseca, contains only one apparent signature — that of the decedent. The signature line designated for Ms. Fonseca is entirely blank. A premarital agreement is, by its nature, a bilateral contract requiring the assent and execution of both prospective spouses. Without both parties' signatures, the document on its face fails to constitute a binding agreement. The absence of Ms. Fonseca's signature is not a minor irregularity; it is a fundamental defect that goes to the very existence of the alleged agreement.

C. Provenance and Chain of Custody Have Not Been Established. No information whatsoever has been provided regarding the provenance or chain of custody of this Photocopy. Your filings and correspondence are silent as to who possessed the document, when it was copied, from what source it was copied, where the original (if any) is located, or how the Photocopy came into the hands of Contestants or their counsel. This absence of foundational information is itself significant and raises serious questions about the reliability and authenticity of the document.

D. The Photocopy Is Consistent with an Incomplete Draft. Given the foregoing deficiencies — the absence of Ms. Fonseca's signature, the lack of any notarial acknowledgment or witness attestation, the production of only a photocopy rather than an original, and the complete absence of any chain-of-custody information — the Photocopy as produced is entirely consistent with an incomplete draft or working document that was prepared at some point during the parties' engagement but was never finalized, agreed upon, or executed by both parties. This is, Indeed, Ms. Fonseca's position, as set forth more fully below.

III. Legal Basis for This Demand

The demand set forth in this letter is grounded in well-established principles of California statutory and evidentiary law. We summarize the applicable authorities as follows:

A. California Family Code § 1611 — Writing and Signature Requirement. Under California Family Code Section 1611, a premarital agreement must be in writing and signed by both parties in order to be enforceable. This is not a discretionary standard; it is an absolute statutory prerequisite. A document that bears the signature of only one prospective spouse is not, and cannot be, an enforceable premarital agreement under California law. The Photocopy produced by your office, which lacks Ms. Fonseca's signature, fails this threshold requirement on its face.

B. California Family Code §§ 1610–1617 — Additional Requirements for Validity. Beyond the writing and signature requirement, the Uniform Premarital Agreement Act as adopted in California (Family Code §§ 1610–1617) imposes additional substantive and procedural requirements for the validity and enforceability of premarital agreements. These include, among other things, that the agreement be executed voluntarily by both parties (§ 1615(a)(1)); that the party against whom enforcement is sought had access to independent legal counsel or expressly waived such access in a separate writing (§ 1615(c)(1)); that the party against whom enforcement is sought was provided a full, fair, and reasonable disclosure of the property and financial obligations of the other party (§ 1615(a)(2)); and that the agreement not be unconscionable at the time of execution (§ 1615(a)(2)). None of these requirements can be meaningfully evaluated — let alone satisfied — in the absence of an authenticated, complete original instrument, together with the surrounding documentation reflecting the circumstances of its negotiation and execution.

C. Burden of Proof. The burden of establishing the existence, due execution, and validity of a premarital agreement rests squarely with the party asserting it. In this proceeding, that burden falls upon Contestants. It is not sufficient for Contestants to produce an incomplete photocopy and shift the burden to Ms. Fonseca to disprove the existence of a valid agreement. Rather, Contestants must affirmatively demonstrate that a premarital agreement was duly executed by both parties in compliance with all applicable statutory requirements. The Photocopy as produced falls far short of meeting that burden.

D. Best Evidence Rule — California Evidence Code. Under the California Evidence Code, the best evidence rule (also known as the secondary evidence rule, as codified in Evidence Code §§ 1520–1523) requires the production of the original writing when the contents of a writing are at issue, unless the proponent demonstrates that the original is unavailable through no fault of the proponent. Here, the contents of the alleged premarital agreement are squarely at issue, as Contestants seek to rely on the Photocopy to establish the separate property character of substantial estate assets. The production of a photocopy, without any showing regarding the unavailability of the original, does not satisfy the best evidence rule and is subject to exclusion.

E. Application to the Assets at Issue. Contestants cannot sustain their claims regarding the alleged separate property character of significant estate assets based solely on an incomplete, unauthenticated photocopy. The assets at issue include, but are not limited to, the decedent's interest in Lumiére Canyon Studios LLC, Pacific Rim Narrative Partners LLC, and the extensive intellectual property portfolio associated with the decedent's media and entertainment ventures. These assets represent the core of the estate, and the characterization of these assets as separate or community property will determine the distribution of hundreds of millions of dollars. The stakes demand that any instrument purportedly governing the parties' property rights be authenticated to the highest degree and established through competent, admissible evidence.

IV. Specific Demand

In light of the foregoing, Calderwood & Harkness LLP, on behalf of Marguerite D. Fonseca, hereby demands that Brennan, Ortega & Saldívar LLP produce the following documents and information within twenty-one (21) calendar days of the date of this letter — that is, by no later than December 22, 2022:

1. The Original Premarital Agreement. The original premarital agreement allegedly dated May 30, 2008, including all pages, signature pages, exhibits, schedules, attachments, and any addenda or amendments thereto, in whatever form they exist.

2. All Drafts and Prior Versions. All drafts, revisions, redlined versions, markups, and prior versions of the alleged agreement, whether in hard copy or electronic form, reflecting the negotiation and development of the document from its inception through any purported final execution.

3. All Related Correspondence and Communications. All correspondence, communications, memoranda, transmittal letters, emails, text messages, or other records relating to the preparation, negotiation, review, execution, delivery, or storage of the alleged agreement, including communications between or among the parties, their respective counsel (if any), and any other person or entity involved in the process.

4. Identification of Counsel. Identification of the attorney or attorneys, if any, who prepared, drafted, reviewed, or provided legal advice with respect to the alleged agreement on behalf of either Teodoro R. Fonseca or Marguerite D. Fonseca, including the name, firm affiliation (if applicable), and contact information of each such attorney, and a description of the scope and nature of the legal services provided.

5. Chain-of-Custody Statement. A complete and detailed chain-of-custody statement establishing who has possessed the original of the alleged agreement and/or any copies thereof from the date of its purported execution on or about May 30, 2008, through the present, including the dates and circumstances of each transfer of possession, the identity of each custodian, and the location(s) at which the original and/or copies have been stored.

6. Financial Disclosure Documentation. Any and all financial disclosure statements, schedules of assets and liabilities, income summaries, property valuations, or other documents exchanged between the parties in connection with the alleged agreement, as contemplated by California Family Code Section 1615(c). This demand includes any written acknowledgment or waiver of such disclosure by either party.

This demand is made without limitation to any other discovery rights or obligations that may apply in the above-referenced proceeding, and is intended to supplement, not replace, any formal discovery that may subsequently be propounded.

V. Consequences of Non-Production

In the event that the original premarital agreement cannot be produced, we demand that your office provide a detailed written explanation of the circumstances of its unavailability. That explanation must address, at a minimum, the following: when the original was last seen and by whom; who last possessed the original; where the original was stored; what efforts have been undertaken to locate the original; and the reason or reasons for its unavailability.

Please be advised that the failure to produce the original premarital agreement — or to adequately account for its absence — will support Ms. Fonseca's position that the Photocopy is unreliable, unauthenticated, and insufficient to establish the existence of a valid, executed premarital agreement. In the absence of a satisfactory response to this demand, Ms. Fonseca will contend, and will urge the Court to find, that no enforceable premarital agreement was ever executed between the parties, and that the Photocopy should be excluded from evidence as inadmissible.

Ms. Fonseca hereby expressly reserves all rights to challenge the admissibility, authenticity, and enforceability of the alleged premarital agreement on any and all grounds available under applicable law, including but not limited to lack of execution, lack of voluntariness, failure of adequate disclosure, unconscionability, fraud, forgery, and noncompliance with the requirements of California Family Code Sections 1610 through 1617.

Ms. Fonseca further reserves the right to retain a qualified forensic document examiner to analyze any original or further copies that may be produced, including analysis of ink composition, paper age, handwriting characteristics, and any other relevant forensic indicia. In addition, Ms. Fonseca reserves the right to move the Court for appropriate relief — including but not limited to an order compelling production, evidentiary sanctions, adverse inference instructions, or such other relief as the Court deems just — in the event that this demand is not satisfied within the time specified herein or at all.

VI. Client's Position

So that there is no ambiguity regarding Ms. Fonseca's position, we state it plainly here for the record:

Ms. Fonseca categorically denies that she ever executed any premarital agreement with Teodoro R. Fonseca. Ms. Fonseca denies that she was ever presented with a final version of any such agreement for her signature, that she ever agreed to the terms reflected in the Photocopy, or that she ever voluntarily relinquished any community property rights. Ms. Fonseca asserts that the Photocopy produced by Contestants is, at best, an incomplete or preliminary draft document that was prepared at some point during the parties' engagement but was never finalized, never agreed upon, and never executed by both parties. The blank signature line on the Photocopy where Ms. Fonseca's signature would appear is itself dispositive evidence of this fact.

Ms. Fonseca maintains that all assets acquired during the fourteen-year marriage of Teodoro and Marguerite Fonseca are community property under California law and are to be administered and distributed accordingly. These community property assets include, without limitation:

• Lumiére Canyon Studios LLC, a California limited liability company formed on March 18, 2009, during the marriage, in which Teodoro R. Fonseca held a fifty percent (50%) membership interest pursuant to the operating agreement of the same date, with the remaining fifty percent (50%) membership interest held by a third party;

• Pacific Rim Narrative Partners LLC, a California limited liability company formed in 2015, during the marriage;

• The intellectual Property Portfolio, consisting of all copyrights, trademarks, screenplays, treatments, development rights, and other intellectual property created, acquired, or developed by Teodoro R. Fonseca during the marriage in connection with his media and entertainment ventures;

• Financial Accounts, including all accounts held at Veltara Basin Bank, N.A., and any other financial institution, to the extent funded or augmented with community earnings during the marriage.

Ms. Fonseca further maintains her community property interest in the real property commonly known as the Malibu Beach House, located at 27100 Pacific Coast Highway, Malibu, California 90265. While Ms. Fonseca acknowledges that this property was acquired by Teodoro R. Fonseca prior to the marriage on August 22, 2007, she asserts a community property interest in the property based on substantial community contributions made during the marriage, including significant renovation expenditures and the payment of mortgage obligations with community funds over a period of approximately fourteen years. Ms. Fonseca intends to pursue her rights with respect to this property through appropriate legal proceedings.

VII. Reservation of Rights

This letter is written and transmitted without prejudice to any and all rights, claims, remedies, and defenses available to Ms. Fonseca in the above-referenced proceeding or in any other forum. Nothing contained in this letter shall be construed as a waiver, limitation, or relinquishment of any right to seek additional discovery, to propound formal interrogatories or requests for production, to take depositions, to seek evidentiary sanctions, or to pursue any other relief from the Court. All such rights are expressly preserved.

We also note for the record that Ms. Fonseca's pending response to the Contestants' initial objection, which is being filed on December 12, 2022, further addresses the legal insufficiency of the Contestants' claims and the inadequacy of the Photocopy as a basis for those claims. This letter is intended to complement, not supersede, the arguments and positions set forth in that filing.

VIII. Closing

We respectfully request that you confirm receipt of this letter at your earliest convenience and advise us of your clients' position with respect to the demands set forth herein. We are prepared to discuss the logistics of document production or, if your clients prefer, to arrange for an in-person inspection of any original documents at a mutually convenient time and location. We trust that this matter can be resolved through professional cooperation, but we will not hesitate to seek judicial intervention if the circumstances require it.

We look forward to your prompt response.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Howard Quinn Partner

Direct Dial: (213) 555-8247

Email: hquinn@calderwoodharkness.com

cc: Marguerite D. Fonseca (via U.S. Mail and Electronic Mail)

cc: Elliot Nguyen, Calderwood & Harkness LLP (via Electronic Mail)

Sent via U.S. Mail and Electronic Mail to damian.ortega@bosfirm.com

CALDERWOOD & HARKNESS LLP Attorneys at Law 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-8200 Facsimile: (213) 555-8201 www.calderwoodharkness.com
December 1, 2022
VIA U.S. MAIL AND ELECTRONIC MAIL
Howard Quinn Partner Direct Dial: (213) 555-8247 Direct Fax: (213) 555-8299
Email: hquinn@calderwoodharkness.com
Damian R. Ortega, Esq. Partner 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, Case No. 22STPB09714
Calderwood & Harkness LLP Matter No. 1035-00005
Demand for Production of Original Premarital Agreement
Dear Mr. Ortega:
This firm represents Marguerite D. Fonseca, the surviving spouse of Teodoro R. Fonseca, who passed away on September 3, 2022. As you are aware, Ms. Fonseca is the petitioner in the above-referenced probate proceeding currently pending before the Los Angeles County Superior Court. I write in response to the initial objection to Ms. Fonseca's petition that your firm filed on November 14, 2022, on behalf of Rafael T. Fonseca, Isabela C. Fonseca-Greer, and Nicolás R. Fonseca (collectively, the "Contestants"). The purpose of this letter is to formally demand the immediate production of the original premarital agreement that Contestants allege was executed on or about May 30, 2008 — approximately two weeks before the marriage of Teodoro and Marguerite Fonseca on June 14, 2008 — and to set forth the grounds upon which this demand is made.
I. Description of the Document Produced to Date
In connection with the filing of Contestants' initial objection, your office produced a single photocopy of a two-page document purporting to be a premarital agreement dated May 30, 2008 (the "Photocopy"). We acknowledge receipt of that Photocopy and have reviewed it carefully. We note the following with respect to the document as produced:
The Photocopy bears what appears to be a reproduction of Teodoro R. Fonseca's signature on the second page of the document, above a signature line designated for the "Prospective Husband." However — and this is of critical significance — the Photocopy conspicuously and entirely lacks any signature by Marguerite D. Fonseca. The signature line designated for the "Prospective Wife" on the second page is blank. The document is, on its face, incomplete. No notarial acknowledgment, witness attestation, or other indicia of execution by Ms. Fonseca appears anywhere in the Photocopy.
We further note that if the document were, in fact, a valid and enforceable premarital agreement, its operative provisions would purportedly classify all media-related assets originated or conceived prior to the marriage as Teodoro R. Fonseca's separate property, thereby excluding those assets from the community estate. The implications of such a classification for the administration of the estate and for Ms. Fonseca's rights as surviving spouse are, of course, substantial. It is therefore all the more essential that the authenticity and completeness of the document be rigorously established before any reliance is placed upon it.
To date, this incomplete Photocopy is the sole version of the alleged premarital agreement that has been produced or referenced by Contestants in any filing or communication. No original document has been produced. No certified or authenticated copy has been tendered. No explanation has been offered regarding the absence of Ms. Fonseca's signature or the circumstances under which the Photocopy came into Contestants' possession.
II. Deficiencies in the Photocopy
The Photocopy produced by your office suffers from numerous and fatal deficiencies that render it wholly inadequate as a basis for Contestants' claims. We identify these deficiencies as follows:
A. The Document Is Only a Photocopy. The Photocopy is not an original instrument. It is a reproduction of unknown provenance, and its authenticity cannot be verified through physical examination of ink, paper stock, toner characteristics, impression markings, or any other forensic indicia that would ordinarily be available upon inspection of an original executed instrument. The quality and characteristics of the reproduction itself — including the uniformity of ink density, the presence or absence of artifacts, and the alignment of text relative to the signature — raise preliminary questions that can only be resolved through examination of the original, if one exists.
B. The Document Lacks Ms. Fonseca's Signature. The second page of the Photocopy, which purports to be the signature page for a two-party agreement between Teodoro R. Fonseca and Marguerite D. Fonseca, contains only one apparent signature — that of the decedent. The signature line designated for Ms. Fonseca is entirely blank. A premarital agreement is, by its nature, a bilateral contract requiring the assent and execution of both prospective spouses. Without both parties' signatures, the document on its face fails to constitute a binding agreement. The absence of Ms. Fonseca's signature is not a minor irregularity; it is a fundamental defect that goes to the very existence of the alleged agreement.
C. Provenance and Chain of Custody Have Not Been Established. No information whatsoever has been provided regarding the provenance or chain of custody of this Photocopy. Your filings and correspondence are silent as to who possessed the document, when it was copied, from what source it was copied, where the original (if any) is located, or how the Photocopy came into the hands of Contestants or their counsel. This absence of foundational information is itself significant and raises serious questions about the reliability and authenticity of the document.
D. The Photocopy Is Consistent with an Incomplete Draft. Given the foregoing deficiencies — the absence of Ms. Fonseca's signature, the lack of any notarial acknowledgment or witness attestation, the production of only a photocopy rather than an original, and the complete absence of any chain-of-custody information — the Photocopy as produced is entirely consistent with an incomplete draft or working document that was prepared at some point during the parties' engagement but was never finalized, agreed upon, or executed by both parties. This is, Indeed, Ms. Fonseca's position, as set forth more fully below.
III. Legal Basis for This Demand
The demand set forth in this letter is grounded in well-established principles of California statutory and evidentiary law. We summarize the applicable authorities as follows:
A. California Family Code § 1611 — Writing and Signature Requirement. Under California Family Code Section 1611, a premarital agreement must be in writing and signed by both parties in order to be enforceable. This is not a discretionary standard; it is an absolute statutory prerequisite. A document that bears the signature of only one prospective spouse is not, and cannot be, an enforceable premarital agreement under California law. The Photocopy produced by your office, which lacks Ms. Fonseca's signature, fails this threshold requirement on its face.
B. California Family Code §§ 1610–1617 — Additional Requirements for Validity. Beyond the writing and signature requirement, the Uniform Premarital Agreement Act as adopted in California (Family Code §§ 1610–1617) imposes additional substantive and procedural requirements for the validity and enforceability of premarital agreements. These include, among other things, that the agreement be executed voluntarily by both parties (§ 1615(a)(1)); that the party against whom enforcement is sought had access to independent legal counsel or expressly waived such access in a separate writing (§ 1615(c)(1)); that the party against whom enforcement is sought was provided a full, fair, and reasonable disclosure of the property and financial obligations of the other party (§ 1615(a)(2)); and that the agreement not be unconscionable at the time of execution (§ 1615(a)(2)). None of these requirements can be meaningfully evaluated — let alone satisfied — in the absence of an authenticated, complete original instrument, together with the surrounding documentation reflecting the circumstances of its negotiation and execution.
C. Burden of Proof. The burden of establishing the existence, due execution, and validity of a premarital agreement rests squarely with the party asserting it. In this proceeding, that burden falls upon Contestants. It is not sufficient for Contestants to produce an incomplete photocopy and shift the burden to Ms. Fonseca to disprove the existence of a valid agreement. Rather, Contestants must affirmatively demonstrate that a premarital agreement was duly executed by both parties in compliance with all applicable statutory requirements. The Photocopy as produced falls far short of meeting that burden.
D. Best Evidence Rule — California Evidence Code. Under the California Evidence Code, the best evidence rule (also known as the secondary evidence rule, as codified in Evidence Code §§ 1520–1523) requires the production of the original writing when the contents of a writing are at issue, unless the proponent demonstrates that the original is unavailable through no fault of the proponent. Here, the contents of the alleged premarital agreement are squarely at issue, as Contestants seek to rely on the Photocopy to establish the separate property character of substantial estate assets. The production of a photocopy, without any showing regarding the unavailability of the original, does not satisfy the best evidence rule and is subject to exclusion.
E. Application to the Assets at Issue. Contestants cannot sustain their claims regarding the alleged separate property character of significant estate assets based solely on an incomplete, unauthenticated photocopy. The assets at issue include, but are not limited to, the decedent's interest in Lumiére Canyon Studios LLC, Pacific Rim Narrative Partners LLC, and the extensive intellectual property portfolio associated with the decedent's media and entertainment ventures. These assets represent the core of the estate, and the characterization of these assets as separate or community property will determine the distribution of hundreds of millions of dollars. The stakes demand that any instrument purportedly governing the parties' property rights be authenticated to the highest degree and established through competent, admissible evidence.
IV. Specific Demand
In light of the foregoing, Calderwood & Harkness LLP, on behalf of Marguerite D. Fonseca, hereby demands that Brennan, Ortega & Saldívar LLP produce the following documents and information within twenty-one (21) calendar days of the date of this letter — that is, by no later than December 22, 2022:
1. The Original Premarital Agreement. The original premarital agreement allegedly dated May 30, 2008, including all pages, signature pages, exhibits, schedules, attachments, and any addenda or amendments thereto, in whatever form they exist.
2. All Drafts and Prior Versions. All drafts, revisions, redlined versions, markups, and prior versions of the alleged agreement, whether in hard copy or electronic form, reflecting the negotiation and development of the document from its inception through any purported final execution.
3. All Related Correspondence and Communications. All correspondence, communications, memoranda, transmittal letters, emails, text messages, or other records relating to the preparation, negotiation, review, execution, delivery, or storage of the alleged agreement, including communications between or among the parties, their respective counsel (if any), and any other person or entity involved in the process.
4. Identification of Counsel. Identification of the attorney or attorneys, if any, who prepared, drafted, reviewed, or provided legal advice with respect to the alleged agreement on behalf of either Teodoro R. Fonseca or Marguerite D. Fonseca, including the name, firm affiliation (if applicable), and contact information of each such attorney, and a description of the scope and nature of the legal services provided.
5. Chain-of-Custody Statement. A complete and detailed chain-of-custody statement establishing who has possessed the original of the alleged agreement and/or any copies thereof from the date of its purported execution on or about May 30, 2008, through the present, including the dates and circumstances of each transfer of possession, the identity of each custodian, and the location(s) at which the original and/or copies have been stored.
6. Financial Disclosure Documentation. Any and all financial disclosure statements, schedules of assets and liabilities, income summaries, property valuations, or other documents exchanged between the parties in connection with the alleged agreement, as contemplated by California Family Code Section 1615(c). This demand includes any written acknowledgment or waiver of such disclosure by either party.
This demand is made without limitation to any other discovery rights or obligations that may apply in the above-referenced proceeding, and is intended to supplement, not replace, any formal discovery that may subsequently be propounded.
V. Consequences of Non-Production
In the event that the original premarital agreement cannot be produced, we demand that your office provide a detailed written explanation of the circumstances of its unavailability. That explanation must address, at a minimum, the following: when the original was last seen and by whom; who last possessed the original; where the original was stored; what efforts have been undertaken to locate the original; and the reason or reasons for its unavailability.
Please be advised that the failure to produce the original premarital agreement — or to adequately account for its absence — will support Ms. Fonseca's position that the Photocopy is unreliable, unauthenticated, and insufficient to establish the existence of a valid, executed premarital agreement. In the absence of a satisfactory response to this demand, Ms. Fonseca will contend, and will urge the Court to find, that no enforceable premarital agreement was ever executed between the parties, and that the Photocopy should be excluded from evidence as inadmissible.
Ms. Fonseca hereby expressly reserves all rights to challenge the admissibility, authenticity, and enforceability of the alleged premarital agreement on any and all grounds available under applicable law, including but not limited to lack of execution, lack of voluntariness, failure of adequate disclosure, unconscionability, fraud, forgery, and noncompliance with the requirements of California Family Code Sections 1610 through 1617.
Ms. Fonseca further reserves the right to retain a qualified forensic document examiner to analyze any original or further copies that may be produced, including analysis of ink composition, paper age, handwriting characteristics, and any other relevant forensic indicia. In addition, Ms. Fonseca reserves the right to move the Court for appropriate relief — including but not limited to an order compelling production, evidentiary sanctions, adverse inference instructions, or such other relief as the Court deems just — in the event that this demand is not satisfied within the time specified herein or at all.
VI. Client's Position
So that there is no ambiguity regarding Ms. Fonseca's position, we state it plainly here for the record:
Ms. Fonseca categorically denies that she ever executed any premarital agreement with Teodoro R. Fonseca. Ms. Fonseca denies that she was ever presented with a final version of any such agreement for her signature, that she ever agreed to the terms reflected in the Photocopy, or that she ever voluntarily relinquished any community property rights. Ms. Fonseca asserts that the Photocopy produced by Contestants is, at best, an incomplete or preliminary draft document that was prepared at some point during the parties' engagement but was never finalized, never agreed upon, and never executed by both parties. The blank signature line on the Photocopy where Ms. Fonseca's signature would appear is itself dispositive evidence of this fact.
Ms. Fonseca maintains that all assets acquired during the fourteen-year marriage of Teodoro and Marguerite Fonseca are community property under California law and are to be administered and distributed accordingly. These community property assets include, without limitation:
• Lumiére Canyon Studios LLC, a California limited liability company formed on March 18, 2009, during the marriage, in which Teodoro R. Fonseca held a fifty percent (50%) membership interest pursuant to the operating agreement of the same date, with the remaining fifty percent (50%) membership interest held by a third party;
• Pacific Rim Narrative Partners LLC, a California limited liability company formed in 2015, during the marriage;
• The intellectual Property Portfolio, consisting of all copyrights, trademarks, screenplays, treatments, development rights, and other intellectual property created, acquired, or developed by Teodoro R. Fonseca during the marriage in connection with his media and entertainment ventures;
• Financial Accounts, including all accounts held at Veltara Basin Bank, N.A., and any other financial institution, to the extent funded or augmented with community earnings during the marriage.
Ms. Fonseca further maintains her community property interest in the real property commonly known as the Malibu Beach House, located at 27100 Pacific Coast Highway, Malibu, California 90265. While Ms. Fonseca acknowledges that this property was acquired by Teodoro R. Fonseca prior to the marriage on August 22, 2007, she asserts a community property interest in the property based on substantial community contributions made during the marriage, including significant renovation expenditures and the payment of mortgage obligations with community funds over a period of approximately fourteen years. Ms. Fonseca intends to pursue her rights with respect to this property through appropriate legal proceedings.
VII. Reservation of Rights
This letter is written and transmitted without prejudice to any and all rights, claims, remedies, and defenses available to Ms. Fonseca in the above-referenced proceeding or in any other forum. Nothing contained in this letter shall be construed as a waiver, limitation, or relinquishment of any right to seek additional discovery, to propound formal interrogatories or requests for production, to take depositions, to seek evidentiary sanctions, or to pursue any other relief from the Court. All such rights are expressly preserved.
We also note for the record that Ms. Fonseca's pending response to the Contestants' initial objection, which is being filed on December 12, 2022, further addresses the legal insufficiency of the Contestants' claims and the inadequacy of the Photocopy as a basis for those claims. This letter is intended to complement, not supersede, the arguments and positions set forth in that filing.
VIII. Closing
We respectfully request that you confirm receipt of this letter at your earliest convenience and advise us of your clients' position with respect to the demands set forth herein. We are prepared to discuss the logistics of document production or, if your clients prefer, to arrange for an in-person inspection of any original documents at a mutually convenient time and location. We trust that this matter can be resolved through professional cooperation, but we will not hesitate to seek judicial intervention if the circumstances require it.
We look forward to your prompt response.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Howard Quinn Partner
Direct Dial: (213) 555-8247
Email: hquinn@calderwoodharkness.com
cc: Marguerite D. Fonseca (via U.S. Mail and Electronic Mail)
cc: Elliot Nguyen, Calderwood & Harkness LLP (via Electronic Mail)
Sent via U.S. Mail and Electronic Mail to damian.ortega@bosfirm.com

VIA U.S. MAIL AND ELECTRONIC MAIL

CALDERWOOD & HARKNESS LLP

Record

Parties

Dates

Amounts