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ELECTRONICALLY
FILED
Superior Court of Cafifornia,
Niceforo Luceno Avila Jr. (SBN 297964) oy OF eat ener
478 E Santa Clara St, Ste 234 95/07/2019
San Jose, CA 95112 BY:VOLANDA TABO-RAMII
Phone: (669) 800-9035 Deputy Clerk
Attorney for Plaintiff BENITA CHIU
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENITA CHIU, an individual, Case No.: CGC-19-573612
Plaintiff,
DECLARATION OF NICEFORO AVILA
v. IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT, OR, IN THE
CHARLES LI, an individual, ALTERNATIVE, SUMMARY
Defendant. ADJUDICATION OF ISSUES
Date: August 2, 2019
Time: 9:30 A.M.
Department: 501
Date Action Filed: 2019-02-06
Trial Date: non
I, Niceforo Luceno Avila Jr., declare:
1. | am an attorney licensed to practice in California. | make this declaration
based upon personal knowledge, except as indicated. If called upon to do so, |
could and would testify to the truth of the facts stated in this declaration.
2. Attached as Exhibit A is a true and correct copy of the verified complaint in this|
action by plaintiff Benita Chiu with Exhibit 1 (Complaint to set aside fraudulent
transfers, Li v. Chiu et al, Case No. CGC-14-537574) and Exhibit 2 (Second|
Amended Judgment Setting aside fraudulent transfers, Li v. Chiu et al., Case
No. CGC-14-537574).
| declare under penalty of perjury under California law that the foregoing is true and
correct. 7
Date: 5/2/2019 7
et (
NICEFORO L. AVILA JR.w
EXHIBIT ANiceforo Luceno Avila Jr. (SBN 297964) |
478 E Santa Clara St, Ste 234 \
San Jose, CA 95112 |
Phone: (669) 800-9035
Email: nicavilajr@gmail.com
Attorney for Plaintiff BENITA CHIU
SUPERIOR COURT OF THE STATE OF CALIFORNIA :
COUNTY OF SAN FRANCISCO |
BENITA CHIU, an individual, Case ‘e6ec i 9 a 57 3 6 te
Plaintiff,
VERIFIED COMPLAINT FOR
v.
CHARLES LI, an individual, 1) TEMPORARY RESTRAINING ORDER,
Defendant. PRELIMINARY AND PERMANENT
INJUNCTIONS
2) DECLARATORY RELIEF
Plaintiff alleges:
1. Plaintiff BENITA CHIU (“Plaintiff”) is over 18 years old And is now and at all times!
relevant to this complaint was resident of city and county of San Francisco,
California.
1. Defendant CHARLES LI (“Defendant’ or "LI") is over 18 years old and is now and
at all times relevant to this complaint, based on information and belief, was
resident of county of Contra Costa, California.
2. Venue is proper in this court as the events that gave rise to this action occurred
within this county.
SUBSTANTIVE ALLEGATIONS
3. In March of 2010, LI filed an action in San Francisco City and County Superior |
Court against his former attorney DEMAS YAN ("YAN") for professional |
negligence and other claims (Li v. Yan, Case No. CGC-10- 497990). The original |
judgment entered on May 7, 2013 awarded LI $254,411.06 in damages against._ In February of 2014, LI filed an action to set aside fraudulent transfers (Li v. Chiu
. On June 24, 2016, judgment was entered in LI v. CHIU after a jury trial. The
1 Effective January 1, 2016, the UFTA is known as UVTA (Uniform Voidable
Transactions Act).
YAN. The trial court subsequently entered amended judgments. On June 2
2016, the trial court entered a fourth amended judgment, awarding LI damages
for $254,411.06, prejudgment interest for $149,667.29, attorneys fees for
$505,470.00, costs for $26,384.91, and post-judgment interest for $150,067 86
all totaling $1,086,001.12. i
et al, Case No.CGC-14-537574). The property alleged to have been
fraudulently transferred is a residential building on 23rd Avenue in San Francisco
(the "Property"). Through efforts to enforce the judgment in Liv. Yan, Ll learned ;
that in 2007 YAN had transferred the Property to a wholly owned limited liability
company named 547 23RD AVENUE LLC. In 2012, YAN transferred his
memebership interest in the 547 23RD AVENUE LLC to THAI MING CHIU,
KAMAN LIU, and TINA YAN. In 2013, the Property was transferred again to a
newly formed limited liability company named 547 INVESTMENTS LLC with the
same membership interests as 547 23RD AVENUE LiC. The complaint in LI v.
CHIU alleged that the various conveyances were made to prevent LI from
satisfying his judgment against YAN in LI v. YAN. The complaint in LI v. CHIU
asserted causes of action for fraudulent transfer under the UFTA' (Uniform
Fraudulent Transfer Act). A true and correct copy of the complaint is attached as
Exhibit 1.
judgment set aside (1) the transfer of the Property from YAN to 547 23RD
AVENUE LLC, (2) the transfer of YAN's membership interest in 547 23RD
AVENUE LLC to THAI MING CH!U, KAMAN LIU, and TINA YAN, and (3) the
transfer of the Property from 547 23rd AVENUE LLC to 547 INVESTMENTS
LLC. The judgment declared YAN to be the sole equitable and legal owner of thel
Property and permitted LI to execute or foreclose on the Property to satisfy the
underlying judgment.. In addition, the judgment awarded money judgment of a total of $1,220,385.39
and was adjudged jointly against Tina Yan and Cheuk Tin Yan (husband of Tina
Yan who died after shortly after entry of judgment) for $824,180.57, individually
against Thai Ming Chiu for $324,167.58, and individually against Kaman Liu for
$72,037.24.
. On December 21, 2016, the trial court issued an order granting LI's request for
attorneys fees in the amount of $802,059.50 and costs in the amount of
$11,527.19. On December 21, 2017, the first amended judgment was filed the
same day as the order awarding attorneys fees and costs.
. The transferee defendants appealed from the original judgment entered June 24,
2016 and the first amended judgment entered December 21, 2016. In an opinion
issued May 31, 2018, Division Three of the First Appellate District concluded that
the attorney fee award should be modified to apply solely against YAN and
affirmed the judgment as modified.
. On November 16, 2018, the Court granted LI’s supplemental motion for attorneys!
fees and costs on appeal and ordered entry of a second amended judgment that
increased the total amount of attorneys fees awarded to $1,141,383.50 and the
total amount of costs awarded to $12,503.04. In accordance with the opinion of
the Court of Appeal, the second amended judgment further provided that
attorneys fees only may be recovered against YAN. A true and correct copy of
the second amended judgment (hereinafter the "Judgment") is attached as
Exhibit 2.
10. Plaintiff herein is wife of THAI MING CHIU.
VOID JUDGMENT
11. The Judgment is void on its face as to the award of money judgment against
transferee defendants TINA YAN, THAI MING CHIU, and KAMAN LIU (the
"Transferees").12. Under the UVTA, Civil Code section 3439.07 seis forth the relief that a creditor
bringing a fraudulent transfer case may obtain. Subject to the limits contained in
Civil Code section 3439.08, a creditor may obtain “[a]voidance of the transfer .
to the extent necessary to satisfy the creditor's claim.” (Civ.Code, § 3439.07,
subd. (a)(1).)
13. Subdivision (b) of Civil Code section 3439.08 addresses judgments that a
creditor may obtain against a transferee: “Except as otherwise provided in this
section, to the extent a transfer is voidable in an action by a creditor under
paragraph (1) of subdivision (a) of Section 3439.07 ... the creditor may recover
judgment for the value of the asset transferred, as adjusted under subdivision (c),
or the amount necessary to satisfy the creditor's claim, whichever is less. The
judgment may be entered against the ... first transferee of the asset...”
14. Subdivision (c) of Civil Code section 3439.08 provides that “[i]f the judgment
under subdivision (b) is based upon the value of the asset transferred, the
judgment shall be for an amount equal to the value of the asset at the time of the
transfer, subject to adjustment as the equities may require.”
15. The UVTA allows a creditor to obtain avoidance of the transfer and levy
execution on the transferred assets or, if avoidance is not possible, obtain a
money judgment subject to the limitations imposed by Civil Code section
3439.08. (See GATX Corp. v. Addington (E.D.Ky.2012) 879 F.Supp.2d 633, 642
[‘the primary remedy is to void the fraudulent conveyance’] ). Either remedy puts
the creditor in essentially the same position that he would have occupied had
there been no fraudulent transfer. The UVTA does not authorize a creditor to
obtain both a money judgment when avoidance of the transfer is also available
as remedy. (In Forum Ins. Co. v. Devere Ltd. (C.D. Cal. 2001) 154 F.Supp.2d
1145,1148.)
16. The Judgment set aside the transfers of the membership interests in 547 23RD
AVENUE LLC from YAN to the Transferees. The Judgment also awarded money!
judgments against the Transferees. This double remedy exceeds the relief that
the court had the power to grant under the UVTA or under common law where amoney judgment is not justified absent proof that the transferred property is not
available. (Hy-Lo Unit & Metal Products Co. v. Ryon (1937) 21 Cal. App.2d 38,
43.). Because of the excessive relief, the Judgment is void on its face. (Rochin v|
Pat Johnson Manufacturing Co. (Cal. Ct. App. 1998) 67 Cal. App. 4th 1228; see
Selma Auto Mall Il v. Appellate Department (1996) 44 Cal. App.4th 1672, 1683
['When a court grants relief which it has no authority to grant, its judgment is to
that extent void."])
17. A judgment void on its face because rendered when the court lacked personal or
subject matter jurisdiction or exceeded its jurisdiction in granting relief which the
court had no power to grant, is subject to collateral attack at any time.
(County of Ventura v. Tillett (1982) 133 Cal App.3d 105, 110; Wettstein v.
Cameto (1964) 61 Cal. 2d 838, 840 (judgment void on its face is subject to
collateral attack at any time); Ivory v. Superior Court (1938) 12 Cal. 2d 455, 461
[order void on its face is a nullity, assailable wherever and whenever it may be
produced, and whether attack on it is direct or collateral].) A judgment is void on
its face when its invalidity appears from inspection of the judgment roll. (Morgan
v. Clapp (1929) 207 Cal. 221, 224.) The judgment roll in a civil action consists of
the the pleadings; all orders striking out any pleading in whole or in part; a copy
of the jury verdict; the court’s statement of decision or referee’s finding; a copy of
any order made on demurrer, or relating to a change of parties; a copy of the
judgment, if there are multiple defendants in the action, and any one of them has
allowed judgment against him or her by default, the summons, with proof of its
service, on the defendant, and if the service on the defaulting defendant was by
publication, the affidavit or declaration for publication, and the order directing the
publication of summons. (Code Civ. Proc. § 670(b).)
18. The doctrine of res judicata is inapplicable to void orders. It is for all purposes a
nullity, past, present and future. (Rockefeller Technology Investments (Asia) Vil
v. Changzhou SinoType Technology Co., Ltd. (2018) 24 Cal. App. 5th 115, 136.)
A final but void order can have no preclusive effect. “A void judgment is, in legal!
effect, no judgment. By it no rights are divested. From it no rights can be
obtained. Being worthless in itself, all proceedinys founded upon it are equallyworthless. It neither binds nor bars any one.” (Bennett v. Wilson (1898) 122 Cal.
509, 513-514.) A trial court’s order denying a motion to vacate a void judgment,
in that it gives effect to a void judgment, is itself void. (County of Ventura v. Tillett
(1982) 133 Cal.App.3d 105,110.)
FIRST CAUSE OF ACTION
(TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT
INJUNCTIONS)
19. The above allegations in pars. 3 to 18 are incorporated herein.
20. Plaintiff is wife and joint owner of marital community property with THA! MING
CHIU.
21. Defendant LI, in enforcing the money judgment against THAI MING CHIU, has
levy and commenced foreclosure on the home of Plaintiff which is a single family
property located at 38th Avenue in San Francisco.
22. Defendant's threatened foreclosure of Plaintiff's home on the basis of the void
money judgment, unless and until enjoined and restrained by order of this court,
will cause great and irreparable injury to plaintiff as her home of over 30 years is
unique and cannot be replaced or compensated with monetary damages.
23. Plaintiff has no adequate remedy at law for the injuries currently being suffered o
that are threatened as monetary damages cannot replace a home.
SECOND CAUSE OF ACTION
(DECLARATORY RELIEF)
24. The above allegations in pars. 3 to 18 are incorporated herein.25. An actual controversy has arisen and now exists between plaintiff and defendant
concerning their respective rights and duties in that plaintiff contends that the
Judgment is void to the extend that money judgment is awarded against the
Transferees including plaintiffs husband THAI MING CHIU.
26. A judicial declaration is necessary and appropriate at this time under the
circumstances.
27. Plaintiff desires a judicial determination and a declaration as to whether the
Judgment, in so far as the individual money awards are concerned, is void as
against the Transferees including plaintiff's husband THA! MING CHIU.
WHEREFORE, plaintiff prays judgment as follows:
As to the First Cause of Action:
1. For an order requiring defendant to show cause why he should not be
enjoined from enforcement of the money award contained in the Judgment|
during the pendency of this action;
2. For a temporary restraining order, a preliminary injunction, and a
permanent injunction, all enjoining defendant and his agents, servants,
and employees, and all persons acting under, in concert with, or for them,
from enforcement of the money award contained in the Judgment in
general and against Plaintiff's properties in particular; and
3. For such other and further relief as the court deems proper.
As to the Second Cause of Action:
4. For a declaration that the Judgment, in so fer as the individual money
awards are concerned, is void and of no force or effect;
5. For costs of suit herein incurred; and
6. For such other and further relief as the court may deem proper.Dated: S$ zZe/f
By: [signature]
Mic fre Ars Qifped name]
Attorney for Plaintiff
VERIFICATION
|, BENITA CHIU, am the plaintiff in the above-entitled action. | have read the
foregoing complaint and know its contents. The same is true of my own knowledge,
except as to those matters that are alleged in the complaint on information and belief,
and as to those matters, | believe them to be true.
| declare under penalty of perjury under the laws of the State of California that ihe
foregoing is true and correct.
zy YY 7 [date]
7 Ludgh anclasignature]EXHIBIT 1set ee
ui.
Duy Thai, SBN 157345 F I L E D
One Embarcadero Center, Suite 1020 oem n ee ea
San Francisco, California 94111 rR E704
Tel: 415 296-9927 i :
Fax: 415 230-5779 CLERK OF THE COURT
Attorney for Plaintiff Charles Li
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION
CHARLES LI, an individual, Case Fog ¢ ~4 4- 5 37574
Plaintiff, | COMPLAINT TO SET ASIDE
FRAUDULENT TRANSFERS
v.
THAI MING CHIU, an individual,
DEMAS YAN, an individual, KAMAN
LIU, an individual, TINA YAN a/k/a
TINA FOON YU YAN, an individual,
CHEUK TIN YAN, an individual, 547
23"? AVENUE, LLC, a California limited
liability company, 547 INVESTMENTS
LLC, a California limited liability
company, DOES 1 through 50,
Defendants.
1. Plaintiff is a 77-year-old retired individual residing in the State of
California,.with a principal address in Contra Costa County, California.
2u Defendant Thai Ming Chiu is an individual residing in the State of
California, with a principal address in San Francisco County, California. Upon
information and belief, defendant Thai Ming Chiu is defendant Demas Yan’s brother-in-
law.
3. Defendant Demas Yan is an individual residing in the State of
California, with a principal address, upon information and belief, in San Francisco
County, California.4. Defendants Tina Yan (a/k/a Tina Foon Yu Yan) and Cheuk Tin
Yan are individuals residing in the State of California, with a principal address in San
Francisco County, California. Upon information and belief, defendants Tina Yan and
Cheuk Tin Yan are spouses and the mother and father, respectively, of defendant Demas
Yan.
5. Defendant Kaman Liu is an individual residing in the State of
California, with a principal address in Yolo County, California. Upon information and-
belief, defendant Kaman Liu is Defendant Demas Yan’s brother-in-law.
6. Defendant 547 23° AVENUE, LLC is a California limited
liability company with, upon information and belief, a principal place of business in San
Francisco County, California.
7. Defendant 547 INVESTMENTS LLC is a California limited
liability company with, upon information and belief, a principal place of business in San
Francisco County, California.
8. Plaintiff does not know the true names of defendants Does | to 50,
inclusive, and therefore sues them by those fictitious names, Plaintiff is informed and
believes, and on the basis of that information and belief alleges, that each of those
defendants was in some manner legally responsible for the events and happenings alleged
in this complaint and for plaintiff's damages.
9. Upon information and belief, at all times mentioned in this
complaint each defendant was and is the agent, joint venturor, and alter-ego of each other
defendant, and in doing the things alleged in this complaint each defendant was and is
acting within the course and scope of that agency and joint venture.
10. Upon information and belief, beginning on or about May 24, 2000,
defendant Demas Yan has been and currently is the true owner of real property located at
547 234 Avenue, San Francisco, California, and described as a three-unit residential
building (the “Property”).
2
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Li v. Chiu27
28
11. By no later than June 15, 2005, plaintiff had acquired a right to
payment from defendant Demas Yan for approximately $184,000. No payment has ever
been made on this amount.
12. On or about December 17, 2007, during the time when defendant
Demas Yan was engaged in unauthorized practice of law for plaintiff and when defendant
Demas Yan was in bankruptcy, defendant Demas Yan purportedly and fraudulently
transferred the Property to defendant 547 23" Avenue, LLC, by a grant deed recorded as
Document 1503243 BK-PG: -BK-PG: J538- 0442, in the official records of the County of
San Francisco, California.
13, Defendant Demas Yan was, has been, and currently is the true sole
member, true managing member, and true owner of all the interest of defendant 547 23"
Avenue, LLC.
14. On March 19, 2012, trial began in Charles Liv. Demas Yan, San
Francisco Superior Court No. CGC-10-497990, a matter involving claims of professional
negligence (legal malpractice), breach of fiduciary duty, unauthorized practice of law,
breach of contract, and fraud.
15. On or about July 21, 2012, defendant Demas Yan purportedly and
fraudulently transferred his interest in 547 23" Avenue, LLC (the “LLC Interest’’) to
defendants Chiu, Liu, and Tina Yan.
16. On March 3, 2013, the San Francisco Superior Court entered a
Statement of Decision finding that “Plaintiff has proved that Defendant committed
professional negligence, breach of the fiduciary duty, engaged in the unauthorized
practice of law, breach of contract and fraud.”
17. On or about May 7, 2013, plaintiff reduced the debt defendant
Demas Yan owed him to judgment in Charles Li v. Demas Yan, San Francisco Superior
Court No. CGC-10-497990, which judgment was amended on June 26, 2013 and again
on November 13, 2013 to include damages, attorneys’ fees, costs, and prejudgment
3
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiuinterest totaling $552,412.30. A copy of the November 13, 2013 Second Amended
Judgment is attached as Exhibit A. No payment has ever been made on this judgment.
18. Plaintiff has incurred and will incur additional attorneys’ fees,
costs, and post-judgment interest, currently estimated at over $100,000, that he is entitled
to recover and add to his judgment in Charles Li v. Demas Yan, San Francisco Superior
Court No. CGC-10-497990. No payment has ever been made on this amount.
19. On or about November 15, 2013, defendant 547 23 Avenue, LLC
purportedly and fraudulently transferred the Property to 547 Investments LLC, by a grant
deed recorded as Document J784407 BK-PAG: L025-0559, in the official records of the
County of San Francisco, California. Upon information and belief, the grant deed was
signed by defendant Tina Yan.
20. Plaintiff has attempted to execute on the judgment by levying a
charging order against defendant Demas Yan’s interest in 547 23" Avenue LLC, but the
judgment remains entirely unsatisfied. Upon information and belief, all defendants have
conspired and are conspiring to violate the charging order.
21. Upon information and belief, defendants Demas Yan, Tina Yan,
and Cheuk Tin Yan are long-time joint venturors engaged in the business of, among other
things, buying, managing, financially investing in, and developing real property. Upon
information and belief, defendants Demas Yan, Tina Yan, and Cheuk Tin Yan are agents
and alter egos of each other; own real property and other assets in common; commingle
money and other liquid assets for the business purposes of their joint venture; file
lawsuits in each other’s name; and pay compensation and personal support to each other
from the proceeds of their business joint venture.
22. Upon information and belief, defendants Demas Yan, Tina Yan,
and Cheuk Tin Yan have been engaged in a long-running conspiracy to defraud plaintiff
and other creditors by shifting and secreting assets among themselves. For example, upon
information and belief, while defendant Demas Yan was debtor-in-possession during his
4
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiubankruptcy case, he transferred the Property to defendants Tina Yan and Cheuk Tin Yan
in a conspiracy to defraud plaintiff, other creditors, and the United States Bankruptcy
Trustee. The Trustee initiated a fraudulent conveyance action to recover the Property, and
deed was recorded transferring the Property back to defendant Demas Yan’s bankruptcy
estate, whereupon defendant Demas Yan, with knowledge of defendants Tina Yan and
Cheuk Tin Yan, fraudulently conveyed the Property to 547 23 Avenue, LLC, as
described in paragraph 12 above.
23. Defendant Demas Yan has long understood how to effect
fraudulent conveyance by shifting assets among relatives and manipulating familial
relationships. Among defendant Demas Yan’s first acts of unauthorized practice of law
for plaintiff was his advice to plaintiff regarding alleged fraudulent conveyance between
third parties engaged in an alleged “sham divorce.” Even though he had not yet been
admitted to the bar, defendant Demas Yan boasted that he could better handle such a
fraudulent conveyance matter than other attorneys.
FIRST CAUSE OF ACTION
Fraudulent Transfer of the Property by Defendant Demas Yan to
Defendant 547 23" Avenue, LLC
24. Plaintiff realleges and incorporates herein paragraphs 1 through 23.
25. | The conveyance of the Property by defendant Demas Yan to
defendant 547 23" Avenue, LLC described in paragraph 12 of this complaint was made
with the actual intent to hinder, delay and defraud plaintiff as defined by Civ. Code, §
3439.04(a)(1). The transfer was made to a successor in interest, defendant Demas Yan
retained possession or control of the property after it was transferred, defendant Demas
Yan had been threatened with suit before the transfer, the transfer was of substantially all
of defendant Demas Yan’s assets, defendant Demas Yan removed or concealed assets,
defendant Demas Yan was insolvent or became insolvent shortly after the transfer.
26. The conveyance of the Property by defendant Demas Yan to
defendant 547 23" Avenue, LLC described in paragraph 12 of this complaint was a
5
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Li v. Chiuconstructive fraudulent transfer as defined by Civ. Code, § 3439.04(a)(2). Defendant
Demas Yan did not receive a reasonably equivalent value in exchange for the transfer
described in paragraph 12. Defendant Demas Yan received no money or valid discharge
of enforceable debt for said transfer. Defendant Demas Yan was in business or about to
enter into a transaction when his remaining assets were unreasonably small for the
business or transaction.
27. The conveyance of the Property by defendant Demas Yan to
defendant 547 23" Avenue, LLC described in paragraph 12 of this complaint was a
transfer leading to insolvency, as defined by Civ. Code, § 3439.05. Plaintiff has had a
right to payment from defendant Demas Yan for $184,000, and no payment has ever been
made on this amount. Defendant Demas Yan did not receive a reasonably equivalent
value in exchange for the transfer described in paragraph 12. Plaintiff's right to payment
arose before defendant Demas Yan made the transfer. Defendant Demas Yan was
insolvent at the time or became insolvent as a result of the transfer.
28. Plaintiff is harmed. Defendants’ conduct was a substantial factor in
causing plaintiff harm. Plaintiff is entitled to relief for the fraudulent transfer made by
defendants, pursuant to Civ. Code, § 3439.07, as set forth hereinafter.
29. Defendants’ acts were deliberate, willful, malicious, oppressive
and done with conscious disregard for plaintiff's rights, justifying an award of exemplary
and punitive damages.
30. Each defendant acted in concert with each other defendant in a
continuing scheme and conspiracy to defraud and harm plaintiff and to violate plaintiff's
rights.
SECOND CAUSE OF ACTION
Fraudulent Transfer of the LLC Interest by Defendant Demas Yan to Defendants
Kaman Liu, Thai Ming Chiu, and Tina Yan
31. Plaintiff realleges and incorporates herein paragraphs } through 30.
32. The conveyance of the LLC Interest by Defendant Demas Yan to
6
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. ChiuDefendants Kaman Liu, Thai Ming Chiu, and Tina Yan described in paragraph 15 of this
complaint was made with the actual intent to hinder, delay and defraud plaintiff as
defined by Civ. Code, § 3439.04(a)(1). The transfer was made to relatives, defendant
Demas Yan retained possession or control of the property after it was transferred,
defendant Demas Yan had been sued before the transfer, the transfer was of substantially
all of defendant Demas Yan’s assets, defendant Demas Yan removed or concealed assets,
defendant Demas Yan was insolvent or became insolvent shortly after the transfer.
33. | The conveyance of the LLC Interest by Defendant Demas Yan to
Defendants Kaman Liu, Thai Ming Chiu, and Tina Yan described in paragraph 15 of this
complaint was made with the actual intent to hinder, delay and defraud plaintiff as
defined by Civ. Code, § 3439.04(a)(2). Defendant Demas Yan did not receive a
reasonably equivalent value in exchange for the transfer described in paragraph 15
Defendant Demas Yan received no money or valid discharge of enforceable debt for said
transfer. Defendant Demas Yan was in business or about to enter into a transaction when
his remaining assets were unreasonably small for the business or transaction.
34. The conveyance of the LLC Interest by Defendant Demas Yan to
Defendants Kaman Liu, Thai Ming Chiu, and Tina Yan described in paragraph 15 of this
complaint was made with the actual intent to hinder, delay and defraud plaintiff as
defined by Civ. Code, § 3439.05. Plaintiff has had a right to payment from defendant
Demas Yan for at least $552,412.30, and no payment has ever been made on this amount.
Defendant Demas Yan did not receive a reasonably equivalent value in exchange for the
transfer described in paragraph 15. Plaintiff's right to payment arose before defendant
Demas Yan made the transfer. Defendant Demas Yan was insolvent at the time or
became insolvent as a result of the transfer.
35. Plaintiff is harmed. Defendants’ conduct was a substantial factor in
causing plaintiff harm. Plaintiff is entitled to relief for the fraudulent transfer made by
defendants, pursuant to Civ. Code, § 3439.07, as set forth hereinafter.
7
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiu36. Defendants’ acts were deliberate, willful, malicious, oppressive
and done with conscious disregard for plaintiff's rights, justifying an award of exemplary
and punitive damages.
37. Each defendant acted in concert with each other defendant in a
continuing scheme and conspiracy to defraud and harm plaintiff and to violate plaintiff's
tights.
THIRD CAUSE OF ACTION
Fraudulent Transfer of the Property by Defendant 547 23"? Avenue, LLC
to Defendant 547 Investments LLC
38. Plaintiff realleges and incorporates herein paragraphs 1 through 37.
39. The conveyance of the Property by defendant 547 23 Avenue,
LLC to defendant 547 Investments LLC described in paragraph 19 of this complaint was
made with the actual intent to hinder, delay and defraud plaintiff as defined by Civ. Code,
§ 3439.04(a)(1). The transfer was made to a successor in interest, defendant Demas Yan
and/or defendant 547 23" Avenue, LLC retained possession or control of the property
after it was transferred, defendant Demas Yan and/or defendant 547 23" Avenue, LLC
had been threatened with suit before the transfer, the transfer was of substantially all of
defendant Demas Yan’s and/or defendant 547 234 Avenue, LLC’s assets, defendant
Demas Yan and/or defendant 547 23™ Avenue, LLC removed or concealed assets,
defendant Demas Yan and/or defendant 547 23 Avenue, LLC was insolvent or became
insolvent shortly after the transfer.
40. The conveyance of the Property by defendant 547 23" Avenue,
LLC to defendant 547 Investments LLC described in paragraph 19 of this complaint was
a constructive fraudulent transfer as defined by Civ. Code, § 3439.04(a)(2). Defendant
Demas Yan and/or defendant 547 23" Avenue, LLC did not receive a reasonably
equivalent value in exchange for the transfer described in paragraph 19. Defendant
Demas Yan and/or defendant 547 23" Avenue, LLC received no money or valid
discharge of enforceable debt for said transfer. Defendant Demas Yan and/or defendant
8
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiu547 234 Avenue, LLC was in business or about to enter into a transaction when his
remaining assets were unreasonably small for the business or transaction.
41. The conveyance of the Property by defendant 547 23" Avenue,
LLC to defendant 547 Investments LLC described in paragraph 19 of this complaint was
a transfer leading to insolvency, as defined by Civ. Code, § 3439.05. Plaintiff has had a
right to payment from defendant Demas Yan and/or detendant 547 234 Avenue, LLC for
$552,412.30, and no payment has ever been made on this amount. Defendant Demas Yan
and/or defendant 547 23" Avenue, LLC did not receive a reasonably equivalent value in
exchange for the transfer described in paragraph 19. Plaintiff's right to payment arose
before defendant Demas Yan and/or defendant 547 23" Avenue, LLC made the transfer.
Defendant Demas Yan and/or defendant 547 23 Avenue, LLC was insolvent at the time
or became insolvent as a result of the transfer.
42. Plaintiff is harmed. Defendants’ conduct was a substantial factor in
causing plaintiff harm. Plaintiff is entitled to relief for the fraudulent transfer made by
defendants, pursuant to Civ. Code, § 3439.07, as set forth hereinafter.
43. Defendants’ acts were deliberate, willful, malicious, oppressive
and done with conscious disregard for plaintiff's rights, justifying an award of exemplary
and punitive damages.
44. — Each defendant acted in concert with each other defendant in a
continuing scheme and conspiracy to defraud and harm plaintiff and to violate plaintiff's
rights.
PRAYER
WHEREFORE, plaintiff prays for judgment against defendants and each
of them granting the following relief:
1. An Order declaring that the conveyance of the Property from
defendant Demas Yan to defendant 547 23" Avenue, LLC be set aside and voided to the
extent necessary to satisfy plaintiff's judgment against defendant Demas Yan in the
9
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiuamount of $552,412.30 plus additional attorneys’ fees, costs, and interest at the legal rate;
2. An Order declaring that the conveyance of the LLC Interest from
defendant Demas Yan to defendants Thai Ming Chiu, Kaman Liu, and Tina Yan be set
aside and voided to the extent necessary to satisfy plaintiff’s judgment against defendant
Demas Yan in the amount of $552,412.30 plus additional attorneys’ fees, costs, and
interest at the legal rate;
3. An Order declaring that the conveyance of the Property from
defendant 547 23" Avenue, LLC to defendant 547 Investments LLC be set aside and
voided to the extent necessary to satisfy plaintiff's judgment against defendant Demas
Yan in the amount of $552,412.30 plus additional attorneys’ fees, costs, and interest at
the legal rate;
4, An Order declaring that the conveyance of the Property from
defendant 547 23 Avenue, LLC to defendant 547 Investments LLC is void ab initio
because defendant 547 23 Avenue, LLC did not have true title to the Property;
5. An Order declaring that the conveyance of the Property from
defendant 547 23 Avenue, LLC to defendant 547 Investments LLC is void ab initio
because defendant Tina Yan did not have capacity or authority to execute the grant deed:
6. An Order declaring that defendants and each of them shall be
jointly, severally, and personally liable to plaintiff for plaintiff's full judgment against
defendant Demas Yan, including any additional attorneys’ fees, costs, and interest at the
legal rate; and/or the value of any property that was fraudulently conveyed: and/or any
and all benefits and moneys defendants and each of them received derived from any
fraudulently conveyed property; and/or all damages to plaintiff proximately caused by
defendants actions;
7. Punitive damages and exemplary damages against defendants and
each of them;
8. An Order preliminarily and permanently enjoining all defendants
10
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Liv. Chiu27
28
and each of them from selling, encumbering, damaging, impairing, or disposing of the
Property described in Paragraph 10 of this complaint and/or the LLC Interest described in
Paragraph 13 of this complaint;
9. Plaintiff's costs of suit incurred herein; and
10. All such other relief as may be just and proper.
DATED: February 19, 2014 Ser
Duy Thai
Attorney for Plaintiff Charles Li
11
COMPLAINT TO SET ASIDE FRAUDULENT TRANSFERS
Li v. ChiuEXHIBIT 2Duy Thai, SBN 157345
One Embarcadero Center, Suite 1020
San Francisco, California 94111
Tel: 415 296-9927
Fax: 415 230-5779
Attorney for Plaintiff Charles Li
?
Fl Fs edd,
NOV Il, 2018
CLERK OF THE Spurr
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION
CHARLES LI, an individual,
Plaintiff,
v.
THAI MING CHIU, an individual,
DEMAS YAN, an individual, KAMAN
LIU, an individual, TINA YAN a/k/a
TINA FOON YU YAN, an individual,
CHEUK TIN YAN, an individual, 547
23? AVENUE, LLC, a California limited
liability company, 547 INVESTMENTS
LLC, a California limited liability
company,
Defendants.
Case No.: CGC-14-537574
U POSED] SECOND AMENDED
JUDGMENT SETTING ASIDE
FRAUDULENT TRANSFERS
This action came on regularly for trial on April 4, 5, 7, 8, 11, and 14,
2015, in Department 504 of the San Francisco County Superior Court, the Honorable
Suzanne R. Bolanos presiding. Duy Thai and Stewart Kellar appeared as attorneys for
Plaintiff Charles Li, Albert Boasberg and Demas Yan appeared as attorneys for
defendants Thai Ming Chiu, KaMan Liu, Cheuk Tin Yan, and Tina Yan.
The default of defendant Demas Yan was previously entered on May 21,
2014. The default of defendant 547 Investments, LLC was previously entered on May 21,2014, The default of defendant 547 23" Avenue, LLC was previously entered on
September 25, 2014. Plaintiff filed the request for dismissal of Does 1 through 50 on
August 25, 2015.
On April 14, 2016, the jury rendered verdict against each of appearing
defendants Cheuk Tin Yan, Tina Yan, Thai Ming Chiu, and KaMan Liu. On the same
date, the Court also ruled that defendants have failed to establish any equitable grounds
for altering the jury verdict.
Plaintiff filed his memorandum of costs on July 11, 2016. No motion to
tax costs were filed. On November 9, 2016, the Court heard plaintiffs motion for
attorney’s fees, which was filed on August 31, 2016.
Accordingly, the Court hereby ADJUDGES, ORDERS, and DECLARES
against all defendants as follows:
A. Judgment of $824,180.57 is hereby entered jointly against Cheuk
Tin Yan and Tina Yan.
B, Judgment of $324,167.58 is hereby entered against Thai Ming
Chiu.
c. Judgment of $72,037.24 is hereby entered against KaMan Liu.
D. The real property referred to herein is situated in the State of
California, City and County of San Francisco, and is legally described as follows:
“Commencing at a point on the Westerly line of 23rd Avenue, distant thereon 275 feet
Southerly from the Southerly line of Anza Street; running thence Southerly along said
Westerly line of 23rd Avenue 25 feet; thence at a right angle Westerly 120 fect; thence at
aright angle Northerly 25 feet; and thence at a right angle Easterly 120 feet to the
Westerly line of 23rd Avenue and the point of commencement. Being a portion of
Outside Land Block No. 306. Assessor's Lot 12, Block 1566.” It is referred to herein as
the “Subject Property.”
E. Default judgment is hereby entered against defendants Demas Yan
2
SECOND AMENDED JUDGMENT SETTING ASIDE FRAUDULENT TRANSFERS
Liv. Chiu, et al, CGC-14-53757410
1k
27
28
and 547 23" Avenue, LLC. The transfer of the Subject Property from defendant Demas
Yan to defendant 547 23 Avenue, LLC, recorded as Document 1503243 BK-PG: J538-
0442 in the records of the Office of the Assessor-Recorder, City and County of San
Francisco, California, is fraudulent, void, and hereby set aside to the extent necessary to
satisfy plaintiff's judgment against defendant Demas Yan in Charles Li v. Demas Yan,
San Francisco Superior Court No. CGC-10-497990, as further amended to include any
additional attorneys’ fees, costs, and interest provided by law (“Underlying Judgment”),
along with the costs and attorneys’ fees specified in this Judgment;
F. The transfer of Demas Yan’s membership interests in 547 23"¢
Avenue, LLC, from defendant Demas Yan to defendants Thai Ming Chiu, Kaman Liu,
and Tina Yan was made with the intent to hinder, delay, or defraud plaintiff; was
received without good faith and not in exchange for reasonably equivalent value; and is
hereby set aside to the extent necessary to satisfy plaintiff's Underlying Judgment along
with the costs and attorneys’ fees specified in this Judgment;
G. Default judgment is hereby entered against defendants 547 23"
Avenue, LLC and 547 Investments, LLC. The conveyance of the Subject Property from
defendant 547 23" Avenue, LLC to defendant 547 Investments LLC, recorded as
Document J784407 BK-PAG: L025-0559 in the records of the Office of the Assessor-
Recorder, City and County of San Francisco, California, is fraudulent, void, and hereby
set aside to the extent necessary to satisfy plaintiff's Underlying Judgment along with the
costs and attorneys’ fees specified in this Judgment.
H. For the purpose of satisfying plaintiff's Underlying Judgment,
along with the costs and attorneys’ fees specified in this Judgment, and for that purpose
only, Demas Yan is DECLARED the sole owner of all legal and equitable title or interest
in the Subject Property. Plaintiff may execute or foreclose on the Subject Property to
satisfy plaintiff's Underlying Judgment along with the costs and attorneys’ fees specified
in this Judgment.
3
SECOND AMENDED JUDGMENT SETTING ASIDE FRAUDULEN't TRANSFERS
Li v. Chiu, et al., CGC-14-537574I. Plaintiff may seize, execute on, or foreclose on any real or personal
property of any defendant provided that recovery against any defendant shall not exceed
the money judgment amount entered above against that specific defendant, and further
provided that plaintiff's aggregate recovery shall not exceed plaintiff's Underlying
Judgment.
J. The Court hereby ORDERS all defendants to do the following in
relation to the Subject Property: (1) maintain, receive, and collect all rents, security
deposits, and other rental or lease payments in the ordinary course of business; (2)
maintain and continue payment on all required taxes, fees, mortgages, reasonable
insurance, and reasonable expenses in the ordinary course of business; (3) secure and
maintain all books, documents, and records relating to the matters in (1) and (2) in this
Section, and render an accounting of the same upon request by plaintiff.
K. The Court hereby ENJOINS all defendants from doing the
following in relation to the Subject Property: (1) committing or permitting any waste on
the Subject Property; (2) committing or permitting any act in violation of law; (3)
removing, encumbering, wasting, or otherwise disposing of any of the fixtures on the
property; (2) selling, transferring, disposing, encumbering, concealing, or otherwise
transferring the Subject Property without a prior court order; and (3) doing any act that
will impair the preservation of the Subject Property or plaintif?’s interest in the Subject
Property.
L. Costs of $12,543.04 and attorneys’ fees of $1,141,383.50 are
hereby awarded to plaintiff. Plaintiff's recovery pursuant to Paragraph I above may be
increased to include these amounts, provided that attorneys’ fees may only be recovered
against Demas Yan.
DATED:
helix ?
fonorable S) e R. a
Jud ic Superior
SECOND AMENDED JUDGMENT SETTING ASIDE FRAUDULENT TRANSFERS
Liv. Chin, et al., CGC-14-537574