CALDERWOOD & HARKNESS LLP Attorneys at Law 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071
January 5, 2023
Dr. Elaine Prescott Brindoval Forensic Document Services LLC 921 North La Brea Avenue, Suite 200 Los Angeles, California 90038
Re: Retention of Forensic Document Examination Services — In re Estate of Teodoro R. Fonseca, Los Angeles County Superior Court, Probate Division, Case No. 22STPB09714
Matter No.: 1035-00005
Dear Dr. Prescott:
1. Introduction and Purpose of Retention
This firm, Calderwood & Harkness LLP, represents Marguerite D. Fonseca, the surviving spouse and petitioner in the contested probate proceeding captioned In re Estate of Teodoro R. Fonseca, currently pending before the Los Angeles County Superior Court, Probate Division, under Case No. 22STPB09714. I am writing to you in my capacity as Lead Associate on this matter, under the direction and supervision of Howard Quinn, Responsible Partner for the engagement.
The purpose of this letter is to formally retain Brindoval Forensic Document Services LLC ("Brindoval Forensic") to perform forensic document examination services in connection with the above-referenced proceeding. Specifically, we seek your expert analysis and professional opinion regarding a photocopy of an alleged premarital agreement purportedly executed on or about May 30, 2008, between Teodoro R. Fonseca (the decedent, who died on September 3, 2022) and Marguerite D. Fonseca. The circumstances surrounding this document, including its provenance, its condition, and the conspicuous absence of our client's signature, raise substantial questions of authenticity that are central to the resolution of this probate dispute.
This engagement is made under the direction and at the express request of legal counsel in anticipation of, and in connection with, active litigation. Accordingly, all work product generated by Brindoval Forensic in the course of this engagement is intended to be protected by the attorney-client privilege and the work product doctrine, to the fullest extent permitted by applicable law. We ask that you treat all materials, communications, analyses, and reports as privileged and confidential unless and until you are advised otherwise in writing by this firm.
We further wish to advise you at the outset that, depending on the development of the litigation and the results of your examination, Brindoval Forensic may be called upon to provide expert testimony in the probate proceeding should the matter proceed to trial. While we will discuss the parameters of any such testimony in greater detail at the appropriate time, we ask that you bear this possibility in mind as you undertake your examination and prepare your reports.
2. Background of the Matter
To provide the necessary context for your examination, we set forth below a summary of the factual and procedural background of this matter.
Teodoro R. Fonseca died on September 3, 2022, at the age of sixty-two (62), of cardiac arrest resulting from natural causes. At the time of his death, Mr. Fonseca was a resident of Los Angeles County, California. No will was located among the decedent's personal effects or filed with any court, and the decedent is accordingly deemed to have died intestate.
On October 5, 2022, our client, Marguerite D. Fonseca, filed a Petition for Letters of Administration with the Los Angeles County Superior Court, Probate Division, seeking appointment as administrator of the decedent's estate. Ms. Fonseca and the decedent were lawfully married on June 14, 2008, in Los Angeles County, California, and remained continuously married until the decedent's death, a period of approximately fourteen years.
On November 14, 2022, the decedent's three adult children from a prior marriage — Rafael T. Fonseca, Isabela C. Fonseca-Greer, and Nicolás R. Fonseca (collectively, the "contestants") — filed an initial objection to the Petition for Letters of Administration through their counsel of record, the law firm of Brennan, Ortega & Saldívar LLP, with Damian R. Ortega serving as lead attorney for the contestants. The initial objection raised certain procedural and substantive challenges to Ms. Fonseca's appointment as administrator, but did not reference any premarital agreement.
On January 9, 2023, the contestants filed an amended objection that materially expanded the scope of their claims. In the amended objection, the contestants allege for the first time that a premarital agreement dated May 30, 2008 — approximately two weeks before the June 14, 2008 wedding — exists between the decedent and Ms. Fonseca and governs the characterization of certain media and entertainment assets as the decedent's separate property. The contestants contend that this alleged premarital agreement would effectively remove from the community estate all media-related assets originated or conceived prior to the marriage, including certain intellectual property interests, production company equity, and ancillary revenue streams.
In support of their amended objection, the contestants have produced only a photocopy of a two-page document purporting to be the alleged premarital agreement. No original of this document has been produced. The photocopy bears what appears to be a signature attributed to Teodoro R. Fonseca on the second page; however, critically, the second page does not bear the signature of Marguerite D. Fonseca. The signature line designated for Ms. Fonseca is blank. Our client denies having ever executed the alleged agreement and asserts that the photocopy is incomplete, unauthenticated, and of questionable provenance.
The significance of this document to the overall probate proceeding cannot be overstated. If the alleged premarital agreement were found to be valid and enforceable, it would classify all media-related assets originated or conceived prior to the marriage as Teodoro R. Fonseca's separate property. Based on current valuations, the media-related assets at issue are valued in excess of Forty Million Dollars ($40,000,000), within a total probate estate currently estimated at approximately Seventy-One Million, One Hundred Twelve Thousand Dollars ($71,112,000). The characterization of these assets as separate versus community property will therefore have a profound impact on the distribution of the estate and on Ms. Fonseca's rights as the surviving spouse.
The validity and authenticity of this document is a central, if not the central, issue in the case. Calderwood & Harkness LLP has challenged the enforceability of the alleged premarital agreement under California Family Code Sections 1610 through 1617, which govern the requirements for valid premarital agreements in this state, including the requirement of a writing signed by both parties. We have also raised evidentiary objections to the admission of the photocopy in the absence of the original, citing the secondary evidence rule and related provisions of the California Evidence Code.
On December 1, 2022, this firm transmitted a written demand to Brennan, Ortega & Saldívar LLP for production of the original of the alleged premarital agreement. As of the date of this letter, that demand remains outstanding, and no original document has been produced or identified by the contestants.
It is against this factual and procedural backdrop that we seek your expert assistance.
3. Scope of Engagement
3.1 Document to Be Examined
The primary document to be examined is the photocopy of the alleged premarital agreement, consisting of two (2) pages, purportedly dated May 30, 2008. This photocopy was produced by Brennan, Ortega & Saldívar LLP in connection with the contestants' amended objection filed on January 9, 2023. The photocopy is described in further detail as follows:
Page One: Contains substantive terms regarding the separate property classification of media-related assets. The page includes introductory recitals, definitions of the relevant asset categories, and operative provisions purporting to establish that certain enumerated media and entertainment assets originated or conceived prior to the marriage of the parties shall be and remain the separate property of Teodoro R. Fonseca.
Page Two: Contains a signature block with designated lines for the signatures of both Teodoro R. Fonseca and Marguerite D. Fonseca, as well as a date line. The signature line attributed to Teodoro R. Fonseca bears what appears to be a signature. The signature line designated for Marguerite D. Fonseca is blank and unsigned. Page two also includes a notary acknowledgment block, which does not appear to have been completed.
We emphasize that the original of this document has not been produced by the contestants and its location, if it exists, is unknown. As noted above, Calderwood & Harkness LLP transmitted a formal demand letter to Brennan, Ortega & Saldívar LLP, dated December 1, 2022, requesting immediate production of the original document, and that demand remains outstanding. We anticipate filing a motion to compel production of the original if it is not voluntarily produced within a reasonable time.
3.2 Specific Questions for Examination
Brindoval Forensic is asked to examine the photocopy of the alleged premarital agreement and to address the following specific questions, to the extent that competent forensic analysis permits:
1. Authenticity of the Photocopy. Is the photocopy a faithful reproduction of a single, unified original document, or does it show evidence of being a composite or assemblage of pages derived from different source documents? Specifically, are there any indications that the two pages of the photocopy were not originally part of the same document or were not reproduced from a single, contiguous original?
2. Signs of Alteration. Does the photocopy exhibit any evidence of alteration, manipulation, erasure, overwriting, paste-up, cut-and-paste construction, digital manipulation, or other modification of any kind? This inquiry should encompass both analog and digital methods of alteration, including but not limited to the insertion or deletion of text, the repositioning of signature images, the modification of dates, and the addition or removal of any content.
3. Signature Analysis. To the extent possible from a photocopy examination — and acknowledging the inherent limitations of analyzing a reproduced image rather than an original ink signature — can any opinion be offered regarding the authenticity of the signature purporting to be that of Teodoro R. Fonseca? Specifically, is the questioned signature consistent with or inconsistent with the known exemplar signatures of Teodoro R. Fonseca that will be provided for comparison?
4. Missing Signature. What is the forensic significance, if any, of the absence of a second signature (that of Marguerite D. Fonseca) on page two of the document? Is the absence of this signature consistent with an incomplete, unexecuted, or draft document? Are there any observable characteristics of the signature block area (e.g., erased markings, evidence of a removed signature, or evidence that a signature was never applied) that bear on this question?
5. Pagination and Formatting. Are the two pages of the photocopy consistent in formatting, font, typeface, point size, line spacing, margin alignment, paragraph indentation, header and footer characteristics, and other typographic attributes such that they appear to have been produced as a single document on a single occasion using the same equipment and settings? Are there any discrepancies in formatting or typographic characteristics that would suggest the pages were produced at different times, on different equipment, or under different circumstances?
6. Copy Generation. Can the generation of the photocopy be determined? Specifically, is the photocopy a first-generation copy (i.e., a direct copy from the original), or is it a second-generation or later-generation copy (i.e., a copy of a copy)? What is the significance, if any, of the copy generation with respect to the reliability of any conclusions that can be drawn from the examination?
7. Paper and Toner Characteristics. To the extent discernible from the photocopy itself, are there any observable characteristics regarding the reproduction method (e.g., electrostatic photocopying, inkjet reproduction, laser reproduction), toner distribution patterns, copy artifacts, edge shadowing, skew, or other mechanical reproduction characteristics that bear on the authenticity or provenance of the document?
We recognize that the questions posed above are comprehensive and that not all may be susceptible to definitive resolution based on examination of a photocopy alone. We ask that you address each question to the extent your professional judgment permits, and that you clearly state the degree of certainty or confidence associated with each opinion rendered.
3.3 Limitations Acknowledged
Calderwood & Harkness LLP expressly acknowledges that forensic examination of a photocopy presents inherent and well-recognized limitations as compared to examination of an original document. Many of the most powerful tools available to the forensic document examiner — including ink dating and chemical analysis, paper fiber analysis, indented writing detection (ESDA), watermark analysis, and certain advanced optical techniques — require access to the original document and cannot be performed on a photocopy.
We understand and accept these limitations. However, given the current posture of the case and the contestants' failure to produce the original, examination of the available photocopy is both necessary and appropriate at this time.
Should the original of the alleged premarital agreement become available at any point — whether through voluntary production by the contestants, court order, or any other means — the scope of this engagement may be expanded to include examination of the original document. Such an expanded examination could encompass, without limitation, ink analysis, paper dating, indented writing analysis (ESDA), watermark examination, ultraviolet and infrared spectral analysis, and other techniques not feasible with a photocopy. We will advise you promptly if the original becomes available and will discuss the expanded scope of examination at that time.
In the interim, we ask that Brindoval Forensic note any and all limitations in its reports, clearly identify any questions that cannot be resolved based on examination of the photocopy alone, and specify what additional conclusions or opinions could potentially be drawn from examination of the original document should it become available.
4. Materials to Be Provided
The following materials will be delivered to Brindoval Forensic under separate cover, via bonded courier, within ten (10) business days of the date of this letter or as soon thereafter as all materials have been compiled:
1. Questioned Document. The photocopy of the alleged premarital agreement (two pages), as produced by Brennan, Ortega & Saldívar LLP in connection with the contestants' amended objection filed on January 9, 2023. This photocopy will be transmitted in the condition in which it was received by this firm, in a protective document sleeve, and accompanied by a chain of custody memorandum.
2. Known Exemplar Signatures of Teodoro R. Fonseca. For purposes of signature comparison, we will provide authenticated exemplar signatures of the decedent, sourced from the following documents:
(a) The operating agreement of Lumiére Canyon Studios LLC, dated March 18, 2009 (California Secretary of State Filing No. 200906410337), bearing the decedent's signature as Managing Member;
(b) Account signature cards from Veltara Basin Bank, N.A., for accounts ending in -4782, -3091, and -6155, which were maintained by the decedent during his lifetime and which bear his authenticated signatures executed on various dates;
(c) Such other business documents, contracts, and instruments bearing the decedent's authenticated signature as are available and as may be identified and transmitted to you as they are compiled. We anticipate being able to provide a minimum of ten (10) to fifteen (15) additional exemplar signatures from various dates spanning the period from 2005 through 2022, in order to provide a robust basis for comparison.
3. Known Exemplar Signatures of Marguerite D. Fonseca. Although the questioned document does not bear our client's signature, we will provide exemplar signatures of Marguerite D. Fonseca for comparison purposes should such comparison be useful in any aspect of your examination.
4. Marriage Certificate. A certified copy of the marriage certificate for Teodoro R. Fonseca and Marguerite D. Fonseca, dated June 14, 2008, filed with the Los Angeles County Registrar-Recorder/County Clerk.
5. Additional Documents and Exemplars. Any additional documents, exemplars, or materials that Dr. Prescott may request upon review of the initial materials. We are prepared to respond promptly to any such requests and to make additional exemplars available as needed to support a thorough and complete examination.
All materials will be accompanied by a detailed transmittal letter and an itemized inventory. We ask that Brindoval Forensic acknowledge receipt of all materials in writing and maintain a chain of custody log documenting the handling and storage of all documents received.
5. Deliverables
5.1 Preliminary Report
We request that Brindoval Forensic prepare and deliver a written preliminary report setting forth initial findings and opinions within approximately six (6) weeks of receipt of all examination materials. The preliminary report should address each of the questions identified in Section 3.2 above to the extent that analysis has progressed at that stage. We understand that certain questions may require additional time or additional materials before a final opinion can be rendered, and we ask that the preliminary report identify any such questions and explain what further steps are needed.
The preliminary report should also identify any additional materials or exemplar signatures that are needed to complete the examination, so that we may take prompt steps to obtain and transmit such materials.
The preliminary report should be clearly marked on each page with the following designation: "DRAFT — ATTORNEY WORK PRODUCT — PRIVILEGED AND CONFIDENTIAL." The preliminary report is intended solely for the use of Calderwood & Harkness LLP in evaluating the case and developing litigation strategy, and is not intended for production to opposing counsel, the court, or any other party.
5.2 Final Report
Following the completion of all analyses and upon receipt of any additional materials that may be required, we request that Brindoval Forensic prepare and deliver a comprehensive final report within approximately twelve (12) weeks of receipt of all examination materials, or as such timeline may be adjusted by mutual agreement of the parties. We recognize that the complexity of the examination, the availability of additional materials, and other factors may necessitate adjustments to this timeline, and we are prepared to discuss any such adjustments as they arise.
The final report should be suitable for submission to the court as an expert report, if needed, and should set forth in full detail the following:
(a) Dr. Prescott's professional qualifications, including education, training, certifications, professional affiliations, and relevant experience in forensic document examination;
(b) A description of the methodology or methodologies employed in the examination, including any standards, protocols, or guidelines followed;
(c) A complete list and description of all materials examined;
(d) A detailed statement of findings for each question addressed;
(e) The opinions rendered by Dr. Prescott, stated with the degree of certainty customary in the field of forensic document examination; and
(f) The bases and reasons for each opinion, including references to specific observations, measurements, comparisons, or other analytical results supporting the opinion.
The final report should conform to applicable evidentiary standards under the California Evidence Code, including but not limited to Sections 720, 801, and 802, as well as the standards set forth in Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, and People v. Kelly (1976) 17 Cal.3d 24, to the extent applicable.
5.3 Expert Testimony
Dr. Prescott should be prepared, if called upon, to testify as an expert witness in the probate proceeding, including at deposition and at trial. We will provide reasonable advance notice of any scheduled testimony and will coordinate with Dr. Prescott's schedule to the greatest extent practicable.
We note that the current litigation timeline is subject to a mediation that has been scheduled for April 12, 2023, before the Honorable Constance Adler (Ret.), and that settlement discussions may occur in connection with or following the mediation. If the matter is resolved through mediation or settlement, expert testimony may not be required. However, we ask that Dr. Prescott remain available for testimony through the conclusion of the matter, and we will keep Brindoval Forensic apprised of significant developments in the litigation timeline.
In the event that Dr. Prescott is designated as a testifying expert, we will discuss with you in advance the implications of such designation for the privilege and work product protections that currently apply to your analyses and communications with this firm.
6. Fee Arrangement
Brindoval Forensic shall be compensated for the services described in this letter at its standard hourly rates for forensic document examination services, as previously discussed between Dr. Prescott and the undersigned. We understand the applicable rates to be as follows:
• Dr. Elaine Prescott, Lead Examiner — Document Examination and Analysis: $____ per hour
• Associate Examiners or Technical Staff, if utilized: $____ per hour
• Expert Testimony and Deposition Preparation (including testimony at deposition, trial, and hearing, as well as time spent in preparation for testimony): $____ per hour
We ask that Dr. Prescott confirm these rates in connection with the execution of this retention letter. Any changes to the applicable rates during the course of the engagement shall be communicated in writing and shall be effective only upon written agreement of Calderwood & Harkness LLP.
An initial retainer in the amount of $____ shall be paid upon execution of this retention agreement. The retainer shall be held by Brindoval Forensic and applied against fees and costs as they are incurred. In the event that the retainer is exhausted, Brindoval Forensic will notify Calderwood & Harkness LLP, and a supplemental retainer may be requested as appropriate.
Monthly invoices should be submitted to Calderwood & Harkness LLP at the address set forth above, to the attention of Elliot Nguyen, Lead Associate. Each invoice should contain detailed time entries, including the date of service, the identity of the person performing the service, a description of the work performed, the time expended (in increments of one-tenth of an hour), and the total amount due. Invoices will be paid within thirty (30) days of receipt.
All fees and costs associated with this retention will be advanced by Calderwood & Harkness LLP on behalf of the client, Marguerite D. Fonseca, and billed as disbursements in the normal course of the attorney-client billing relationship. Brindoval Forensic shall look solely to Calderwood & Harkness LLP for payment and shall not seek payment directly from Ms. Fonseca.
Travel expenses, if any, incurred by Brindoval Forensic in connection with this engagement (including travel for testimony, court appearances, or site inspections) shall be reimbursed at actual cost, provided that such travel has been approved in advance by Calderwood & Harkness LLP. Reimbursable expenses include reasonable airfare, ground transportation, lodging, and meals, in accordance with Brindoval Forensic's standard reimbursement policies.
For reference and for purposes of client cost reporting, we note that total costs advanced in this matter through the current date, across all cost categories — including fees for real and personal property appraisers, the forensic document examination engagement, court filing fees, and mediator fees — are aggregated at approximately Sixty-Two Thousand Three Hundred Forty Dollars ($62,340.00) as of September 30, 2024.
7. Confidentiality and Privilege
All materials provided to Brindoval Forensic in connection with this engagement, including but not limited to the questioned document, exemplar signatures, pleadings, correspondence, and any other documents or information, are confidential and are provided subject to the protections of the attorney-client privilege and the work product doctrine.
Brindoval Forensic shall not disclose the materials, findings, opinions, reports, or any other information relating to this engagement to any third party without the prior written consent of Calderwood & Harkness LLP. This obligation of confidentiality extends to all personnel of Brindoval Forensic who may have access to the materials or who may participate in any aspect of the engagement.
All communications between Brindoval Forensic and Calderwood & Harkness LLP in connection with this engagement, whether oral or written, are made in anticipation of litigation and for the purpose of assisting counsel in the provision of legal services to the client. Such communications are privileged and confidential, and Brindoval Forensic shall take all reasonable steps to preserve and protect the privileged nature of such communications.
In the event that Dr. Prescott is designated as a testifying expert in this proceeding, certain privilege and work product protections may be waived or narrowed as required by applicable rules of evidence and civil procedure, including but not limited to California Code of Civil Procedure Section 2034.210 et seq. Calderwood & Harkness LLP will advise Brindoval Forensic in advance of any such designation and will discuss the implications of designation for the confidentiality of materials and communications. Until such time as a designation is made, all protections remain in full force and effect.
All materials provided to Brindoval Forensic should be maintained in a secure manner, with access limited to those personnel directly involved in the engagement. Upon conclusion of the engagement, all materials shall be returned to Calderwood & Harkness LLP or destroyed at Calderwood & Harkness LLP's direction. In the event that destruction is directed, Brindoval Forensic shall provide written confirmation of destruction.
8. Conflicts and Independence
The integrity and credibility of expert analysis depend upon the independence and objectivity of the expert. Accordingly, we request that Dr. Prescott confirm, by execution of this letter, that Brindoval Forensic Document Services LLC has no prior or current relationship — whether professional, financial, personal, or otherwise — with any of the following parties, entities, or individuals that would create a conflict of interest or compromise the independence or objectivity of Brindoval Forensic's analysis and opinions in this matter:
• Marguerite D. Fonseca (petitioner and surviving spouse)
• Teodoro R. Fonseca (decedent) or the Estate of Teodoro R. Fonseca
• Rafael T. Fonseca (contestant)
• Isabela C. Fonseca-Greer (contestant)
• Nicolás R. Fonseca (contestant)
• Claudette Marchetti
• Brennan, Ortega & Saldívar LLP (counsel for contestants)
• Damian R. Ortega (lead attorney for contestants)
• Lydia Kwan (associate attorney for contestants)
• Lumiére Canyon Studios LLC
• Pacific Rim Narrative Partners LLC
• Hargrove & Linden Appraisals Inc.
• Morton Linden (appraiser retained by contestants)
• Any other party or entity identified in the pleadings or filings in Case No. 22STPB09714
If any such relationship exists or has existed, we ask that you disclose the nature and extent of the relationship so that we may evaluate whether it presents any concern. We further ask that you promptly notify Calderwood & Harkness LLP if, at any time during the course of this engagement, you become aware of any circumstance that could give rise to a conflict of interest or an appearance of bias.
9. Point of Contact
The primary point of contact at Calderwood & Harkness LLP for all matters relating to this engagement is:
Elliot Nguyen Lead Associate Calderwood & Harkness LLP 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-0174
Email: enguyen@calderwoodharkness.com
The supervising attorney for this matter is:
Howard Quinn Responsible Partner Calderwood & Harkness LLP 350 South Grand Avenue, Suite 4800 Los Angeles, California 90071 Telephone: (213) 555-0112
Email: hquinn@calderwoodharkness.com
All deliverables, invoices, and substantive communications relating to this engagement should be directed to Elliot Nguyen, with a copy to Howard Quinn. For urgent matters or issues requiring immediate attention, Dr. Prescott may contact either Mr. Nguyen or Mr. Quinn directly at the telephone numbers listed above.
10. Acceptance and Countersignature
If the terms set forth in this letter accurately reflect your understanding of the engagement and are acceptable to you, please indicate your acceptance by signing in the space provided below and returning a signed copy of this letter to the undersigned at your earliest convenience. A self-addressed return envelope is enclosed for your use.
This letter constitutes the entire agreement between Calderwood & Harkness LLP, on behalf of its client Marguerite D. Fonseca, and Brindoval Forensic Document Services LLC regarding the engagement described herein. This agreement supersedes all prior discussions, negotiations, and understandings, whether oral or written, relating to the subject matter hereof. This agreement may not be amended, modified, or supplemented except by a written instrument signed by both parties.
We look forward to working with you on this important matter. Your expertise in forensic document examination will be an invaluable asset to our client's case, and we are confident that your analysis will provide critical insight into the authenticity and provenance of the questioned document. Please do not hesitate to contact me if you have any questions or if you require any additional information before commencing your examination.
Sincerely,
CALDERWOOD & HARKNESS LLP
By: ________
Name: Elliot Nguyen
Title: Associate
Date: ________
ACCEPTED AND AGREED:
BRINDOVAL FORENSIC DOCUMENT SERVICES LLC
By: ________
Name: Dr. Elaine Prescott
Title: Principal / Lead Forensic Document Examiner
Date: ________
Enclosures: (to follow under separate cover)
1. Photocopy of alleged premarital agreement (2 pages), as produced by Brennan, Ortega & Saldívar LLP
2. Exemplar signature documents (to be compiled and transmitted with detailed transmittal letter and inventory)
cc:
Howard Quinn, Esq. — Calderwood & Harkness LLP Marguerite D. Fonseca — via client file copy