Mistrial motion ‘speculation on steroids’ judge says

A judge called claims in a motion for mistrial, "speculation on steroids," following a fight over a billionaire's inheritance.

San Francisco Superior Court Judge Richard B. Ulmer Jr. wrote in his order on Monday that he found no "new evidence, nothing strategy-changing and nothing warranting a mistrial" after lawyers accused the opposing side of failing to turn over 16 boxes of documents during the discovery phase.

The claims were made in a case involving the billion-dollar estate of movie theater tycoon Robert A. Naify. Naify's stepdaughter, Christina Cortese, claimed that Naify made oral promises that she would inherit assets worth hundreds of millions of dollars following his death. Bartko Zankel Bunzel & Miller represent Naify.

"We are very pleased that the judge denied these unfounded and baseless motions," Benjamin K. Riley, principal at Bartko Zankel Bunzel & Miller, said on Tuesday. "And we look forward to entry of judgment."

In a statement of decision from June, Ulmer wrote that Cortese lacked clear evidence to claim the inheritance. In contrast, Naify had decades of documents that never treated her as equal to his biological children. Cortese v. Sherwood, PTR16299823 (S.F. Sup. Ct., filed May 23, 2016).

Shortly after Ulmer's statement of decision, Cortese's lawyers at Holland & Knight LLP, filed a motion for mistrial alleging that lawyers for Naify's estate engaged in discovery misconduct.

The new documents were found in a storage room in May 2021. Cortese's counsel claimed that the documents included numerous new pieces of evidence that could have changed the course of the trial. But Ulmer disagreed.

Among the unearthed documents was a day planner from 1994. Although Cortese said the planner itself does not contain any new evidence, she would have searched for other planners that might have contained new evidence if she had been reminded of the 1994 planner in time for trial, according to the order.

"This is speculation on steroids," Ulmer wrote.

The new evidence also included tax records, pay records, investment and finance reports.

Under a recent settlement agreement, the trustees of Naify's estate would buy a house for Cortese's sister, Acela. The agreement comes despite claims from the trustees that the estate plans excluded Cortese and her sister, which Cortese's counsel said is new testimony.

But Ulmer wrote that despite the settlement agreement, Naify made no promises to the sisters.

"Bob's sentiment to protect Acela from a life 'on the street'" was compassionate concern for a troubled stepdaughter, not a testamentary promise."

Ulmer wrote that none of the new evidence or testimony "come close to curing the absence of clear and convincing evidence that Bob [Naify] made the oral inheritance promises Christina claimed."

In a comment, Holland & Knight LLP partner Stacie P. Nelson, said a mistrial was warranted and the firm will address the matters in the future.

"But importantly, this is just one piece of a multi-prong breach of fiduciary case against the late Mr. Naify for failing to fully fund his deceased wife's share of their community property built over their 20 plus years marriage and against his longtime attorney Mr. Sherwood for his knowing participation and assistance in Mr. Naify's breaches of duty," Nelson said.