The estate of the late American painter Thomas Kinkade sought Tuesday to compel a dispute with his live-in girlfriend, Amy Pinto-Walsh, over the artist's medical directive, be resolved in closed arbitration.
Douglas W. Dal Cielo, the attorney representing Pinto-Walsh, said Kinkade gave his client a durable power of attorney for health care, including authorizing her to control the disposition of his remains.
However, Pinto-Walsh said in a Santa Clara County Superior Court declaration that she wasn't allowed to do so after the prolific artist, one of America's most famous painters, died the morning of April 6
"We believe she's entitled to damages for that misconduct," Dal Cielo said. He said that a jury or an arbitration panel would have to decide on compensatory and punitive damages for his client because of the alleged violation.
"We intend to pursue a claim for that," Dal Cielo said. "The opposition wants that in front of an arbitration panel where all proceedings would be confidential. We argued this morning to have it litigated in open court."
"Granting petitioners' request to compel arbitration would be contrary to fundamental principles as well as inequitable and unconscionable," Pinto-Walsh's attorneys wrote in court documents obtained by Los Gatos Patch.
The hearing took place in Judge Leslie Nichols' chambers at the civil division of the Santa Clara County Superior Courthouse in downtown San Jose.
Representing Pinto-Walsh were Dal Cielo, Brian M. Affrunti and Sonia M. Agee with the Mountain View-based Burke, Willliams & Sorensent, LLP law firm.
The estate, also known as Windermere Holdings, LLC, includes the painter's widow, Nanette Kinkade, and Kenneth Raasch, co-trustee of the estate.
The estate is trying to get all of the claims filed by Pinto-Walsh litigated in private arbitration, a stipulation the estate contends is part of a confidentiality agreement she signed Feb. 25, 2011. Attorneys Dana Levitt and Daniel Casas represent the estate.
Judge Nichols heard the argument and took the matter under submission for 90 days. If the judge grants the estate's wishes, the panel will deal with the issues behind closed doors. If he denies the estate's request, the claims will be adjudicated in open court. The judge will issue the ruling in writing, according to the court clerk.
Amy Pinto-Walsh's Declaration
The Pinto-Walsh court file is about three inches thick. It contains several pleadings or court documents, including an eight-page declaration she wrote as well as Windermere Holdings' objections to her response.
Pinto Walsh's declaration states she met Kinkade in October 2010, about six months after Nanette Kinkade supposedly filed a petition for legal separation from him in Santa Clara County Superior Court.
"Thomas had a dream of taking his talents and visions internationally and, in particular, to Asian markets, and to use his talents and celebrity for philanthropic purposes. We discussed this vision in detail and I offered my ideas and insight," she wrote.
Kinkade viewed Pinto-Walsh, being of Indian decent and raised in Kuwait, as "a tremendous resource in reaching out to other cultures" to carry out this expansive vision, she said.
She also wrote that because of her professional experience, including several projects in Asia, as well as her contacts in that region, Kinkade "believed I had the acumen, skills and experience to make his vision of expansion into those markets a reality. Thomas offered me the position" of director of strategic projects," she wrote.
She said she resigned her position at ESG Consulting to work for Kinkade.
Three days later, on Feb. 28, 2011, she and Kinkade hosted John Hastings, CEO of Windermere Holdings, and he told them that the painter's widow had "blocked" her hiring as a company employee.
Pinto-Walsh's attorneys say the validity and scope of a confidentiality agreement under which the estate seeks closed arbitration is questionable.
On Feb. 25, 2011, Pinto-Walsh was presented with the agreement after she had accepted Kinkade's offer to be director of strategic projects for the Kinkade Company. She signed the agreement.
However, Pinto-Walsh's attorneys claim that three days later she learned she would not be hired by the company, voiding the agreement.
Planned to Wed in Fiji
In late 2010 and early 2011, Pinto-Walsh wrote that her relationship with Kinkade grew "very serious."
"This was a tumultuous time in both of our lives. Thomas was dealing with the pending legal separation with Nanette ... ." Then, in January 2011, her eldest daughter suffered a severe ruptured appendix and went into septic shock and required emergency surgery and was in critical condition. She said that Kinkade was instrumental in her daughter's recovery.
"Thomas and I often discussed how fate, or a higher being, brought us together in our times of need. These experiences affirmed our [belief] that we had each discovered our true soul mate in each other."
She also wrote that an agreement between Kinkade and his wife allowed the painter to retain the Monte Sereno home located at 16342 Ridgecrest Way and that Kinkade asked her to move in with him in March 2011.
She also said they were deeply in love, had planned to marry in Fiji and that there were trials and tribulations in their relationship. She attributed this to his stress and frustration due to the legal separation from his wife, child custody and visitation and distribution of marital assets. "This was not an easy time in Thomas' life," she added.
Kinkade needed to be hospitalized for several weeks at Good Samaritan Hospital in San Jose and they learned that because they were not married, the medical staff could not discuss his condition with Pinto-Walsh. He requested that his corporate lawyer, Robert Murray, prepare a health-care directive giving her full power of attorney over all health-care decisions for Kinkade.
Murray supposedly faxed the directive to the hospital and a copy of the document was attached to Pinto-Walsh's declaration as an exhibit.
Unfortunately, she wrote, their plans never came to fruition since the painter was found dead the morning of April 6 and could not be resuscitated.
She said Kinkade's personal assistant, Denise Sander, brought with her the directive signed by the painter Jan. 27, 2012. But his former business partner, Kenneth Raasch, arrived at the residence and helped the coroner remove the body and she was excluded from all communications and plans related to the disposition of his remains.
"Not only was she not able to make plans and go through the grieving process, but she was precluded from attending the funeral services," Dal Cielo said, adding that she's still residing in the Monte Sereno home.
In Santa Clara County probate court, where the distribution of assets left by deceased persons' wills is adjudicated, another matter is pending.
Pinto-Walsh has filed a petition to probate the so-called holographic wills made in the painter's almost illegible handwriting where he supposedly gave her the opulent mansion in the small enclave of Monte Sereno, next to Los Gatos, the studio next door and $10 million to run a museum that would showcase all his original artwork for the public.
The Restraining Order
Dal Cielo said Pinto-Walsh, however, was never served the order and was never hired by Kinkade's company, therefore, it became void.
Pinto Walsh's Character 'Defamed'
"They don't know the facts," her attorney said about the large amount of Kinkade supporters who don't believe his client and accuse her of enabling his alcoholism and being a "gold digger" and "home wrecker."
"When the evidence comes out, the people that have painted her in a negative light will be proven incorrect," Dal Cielo stated.
The Kinkade estate issued the following statement Wednesday in response to Tuesday's hearing: “Thomas Kinkade and his wife Nanette initiated and approved a joint estate plan that was final and up to date at the time of his passing.
"The estate is subject to this formal, written, and irrevocable plan and it will contest any other purported estate planning documents. Ms. Pinto-Walsh signed a confidentiality agreement in February 2011 at the express request of Mr. Kinkade who was concerned about his daughters’ privacy. It is the responsibility of the estate to ensure that Mr. Kinkade’s wishes are honored, including seeking to enforce the arbitration clause in the agreement signed by Ms. Pinto-Walsh.”