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DAVID J. COOK, ESQ. SBN 060859
COOK COLLECTION ATTORNEYS ELECTRONICALLY
A PROFESSIONAL LAW CORPORATION FILED
165 Fell Street, San Francisco, CA 94102 Superior Court of California
P.O. Box 270, San Francisco, CA 94104-0270 County of San Francisco
Telephone: (415) 989-4730
Facsimile: (415) 989-0491 04/22/2019
cook@cookcollectionattomeys.com BY:CAROL BALISTRERI
Our File No. 58,002 Deputy Clerk
Attorneys for Plaintiffs ROBBIE LEE GILLELAND
and REBECCA GILLELAND +
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
‘COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
ROBBIE LEE GILLELAND CASE NO. CPF 19-516563
and REBECCA GILLELAND,
MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF THE
NOTICE OF MOTION AND FOR
vs. ASSIGNMENT OF RIGHTS, TURNOVER
ORDER, AND RESTRAINING ORDER
SHENZHEN FEST TECHNOLOGY UNDER C.C.P. SECTION 708.501 SEQ.
CO., LTD,
Defendant. Date of Hearing: April 23, 2019
Time of Hearing: 9:00 a.m.
Department: 301 (Enforcement of a Judgment)
Name of Judge: Honorable: PAUL RENNE
tt eee
FULL FAITH AND CREDIT ENABLE PLAINTIFF TO DOMESTICATE THIS
JUDGMENT IN THE STATE OF CALIFORNIA
Judgment has been rendered in the trial courts of the State of Georgia, a copy of which is
attached hereto, marked Exhibit “A” and incorporated by reference.
-l-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT
OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.om NDA WH
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The issue raised by the court is whether ths court has the jurisdiction to issue any relief.
The starting point is that this court granted on April 22, 2019 the Notice of Motion and
Motion for an Assigment before the Honorable Ethan Schulman.
Under the Full, Faith and Credit Clause of the United Stated Constitution, Plaintiff is
entitled to domesticate this judgment in this state as follows:
The situation, rather, falls within the principle enunciated in Lewis v. Linder (1963) 217
Cal.App.2d 150, 151—152, 31 Cal.Rptr. 563, 564:
‘We agree that as a general rule a judgment of a sister state having no jurisdiction to render
the judgment is not entitled to the full faith and tredit which the Constitution of the United
States demands and further that the courts of our state will not recognize a judgment of a
sister state if that state did not have jurisdiction.
However, ‘If the court of the sister state which rendered the decree has
expressly litigated the question of jurisdiction, that determination is res judicata
and is itself protected by the full faith and credit clause. The question may not
be relitigated in ths state. (Citation,) In the Perkins’ case (Perkins v. Benguet
Consol. Min. Co., 55 Cal.App.2d 720, 132 P.2d 70) the court declared, 55
Cal.App.2d 743, 132 P.2d page 85: ‘The rule that it always may be shown that
the judgment of the other state, territory, or country subject to the jurisdiction of
the United States is in excess of jurisdiction or affected with fraud, is, however,
subject to the limitation that if the court of the state which rendered the
judgment has expressly litigated the jurisdictional questions or the matter of
fraud, that determination becomes res judicata on those points and is itself
protected by the full faith and credit clause. The jurisdictional and fraud
questions cannot be relitigated a second time in another state. (Citations.) “
(Tomkins v. Tomkins, 89 Cal.App.2d 243, 251, 200 P.2d 821, 826.)
fanpietro v. Collins, 250 Cal. App. 2d 203, 208, 58 Cal. Rptr. 219, 222-23 (Ct.
App. 1967)
See also Brinker v. Superior Court, 235 Cal. App. 3d 1296, 1299-300, 1 Cal. Rptr. 2d 358,
359-60 (Ct. App. 1991) as follows:
“Article IV, section 1 of the United States Constitution provides that “full faith and credit
shall be given in each state to the public acts, records and judicial proceedings of every
other state.” The Federal Judicial Code further provides, “Such Acts, records and judicial
proceedings or copies thereof ... shall have the same full faith and credit in every court
within the United States and its Territories and Possessions as they have by law or usage in
the courts of such State, Territory or Possession from which they are taken,” (28 U.S.C., §
1738.) “It has long been the law that ‘the judgment of a state court should have the same,
credit, validity, and effect in every other court in the United States, which it had in the state
where it was pronounced.’ ” (Thomas v. Washington Gas Light Co. (1980) 448 U.S. 261,
270, 100 S.Ct. 2647, 2655, 65 L.Ed.2d 757.) “The rare exceptions to the application of the
full faith and credit clause arise only when there is a violation of some fundamental state
public policy.... [T]here is no precedent for an exception in the case of a money judgment
ina civil suit.” (Silbrico Corp. v. Raanan (1985) 170 Cal.App.3d 202, 208, 216 Cal Rpt.
201, citing United Bank of Denver v. K & Y Trucking Co., Inc. (1983) 147 Cal.App.3d 217,
222, 195 Cal.Rptr. 49.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT
OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.om IY A HW RB YW NY |
N NN NY =| | — es
B&B ®RRPEBBREBSGESIVIABDESERTS
DATED: April 22, 2019
Therefore, under California law, the judgment of a sister state must be given full faith and
credit if that sister state had jurisdiction over the parties and the subject matter, and all
interested parties were given reasonable notice and opportunity to be heard. *1300 (World
Wide Imports, Inc. v. Bartel 1983) 145 Cal.App.3d 1006, 1010, 193 Cal.Rptr. 830.) All
these criteria were met in the present case.
See Washoe Dev. Co. v. Guar. Fed. Bank, 47 Cal. App. 4th 1518, 1523-24, 55 Cal. Rptr.
2d 479, 483 (1996):
There are several cases which demonstrate that the defenses raised by appellants cannot
overcome the full faith and credit obligation California must accord the Nevada judgment.
In United Bank of Denver v. K & W Trucking Co. (1983) 147 Cal.App.3d 217, 195
Cal.Rptr. 49, the court determined ‘that a Colorado judgment registered in California under
the Act was entitled to full faith and credit and could not be vacated under section 1710.40
despite a claim that it violated the public policy of California, as expressed in section
580d, prohibiting deficiency judgments following a nonjudicial foreclosure sale. It was
undisputed that the Colorado court had the requisite fundamental jurisdiction in the action;
it had jurisdiction over both subject matter and the judgment debtors in the case, who were
given ample opportunity to defend the case. Consequently, the public policy or laws of the
enforcing state regarding deficiency judgments could not contravene the full faith and
credit clause of the Constitution. The court reasoned: “Deficiency judgments are only
statutorily limited and are not inherently objectionable, as such judgments are not a threat
to the moral or ethical standards of the citizens of this state. We, therefore, conclude that a
deficiency judgment in a sister state is not so offensive so as to compel this court to
recognize an exception to the full faith and credit clause of the United States Constitution.”
(Ud. at p. 223, 195 Cal.Rptr. 49, italics added.)
The case of Silbrico Corp. v. Raanan, supra, 170 Cal.App.3d 202, 216 Cal.Rptr. 201, dealt
explicitly with a sister state money judgment entered pursuant to a settlement agreement
sought to be enforced under the Act. The court considered and rejected the judgment
debtor's arguments that the judgment should be vacated under section 1710.40 because the
terms of the sister state judgment constituted an unenforceable penalty under California
law and failed to meet the requirements of section 1133 pertaining to judgment by
confession. The court held that the judgment debtor's“So-called” defenses under section
1710.40 could not be asserted in response to the i ia j
the court rendering the judgment had fundamerta
California court was required to give it Pe
REBECCA GILLELAND .
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT
OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.EXHIBIT “A”EXEMPLIFICATION
Georgia, Harris County
yy, jennifer Guerrero, Deputy, Clerk of Superior Court of Harris County, do hereby certify that I have compared the foregoing
copy of, IF DEFAULT At ANT SHENZHEN FEST TE! {e) Y, 16-CV-:
with the original record thereof, now remaining in this office, and the same is a correct transcript therefrom, and the whole of such
original record, and that said Court is a Court of Record. .
IN TESTIMONY WHEREOF, ] have thereunto set my hand and affixed the seal of said Court, this 11th day of FEBRUARY. 2019,
Ds
. . Georgia, Harris County
do certify that I am Judge of the Superior Court of said county, and that I am the presiding Judge of
‘L Maureen Gottfried,
said Coust and that the above attestation, subscribed by Clerk’of: ‘said Court, is. sufficient and in due form of law, and that his signature
thereto is genuine.
- Witness my hand an official signature, this 11th day of FEBRUARY, 2019
Gottfried, Jidge «
Superior Court of Harris Cot
Chattahoochee Judicial Circuit
Georgia, Harris County
‘the Superior Court in and for said County, hereby certify that the above attestation of
i Jennifer Guerrero, Deputy Clerk of
f the Superior Court of Harris County, Georgia, is his genuine signature, and that he is Judge
‘Wonorable Maureen Gottfried, Judge o
of said) Court, and said certificate is in due form of law.
' :Given under my hand and seal of office, this 11th day of FEBRUARY, 2019IN THE SUPERIOR COURT OF HARRIS COUNTY
STATE OF GEORGIA
ROBBIE LEE GILELAND and :
REBECCA GILLELAND : CIVILACTION
"Plaintiffs ; -FILENO. 16-CV-206
. : Yo° | FILEDIN
_ SHENZHEN FEST TECHNOLOGY : t~ OPEN Cour
CO.,LTD. TASTEFULL VAPES,LLC, : JAN 22.
_ JOHN DOEDISTRIBUTORS 1-10, : ' 22 20g
and JOHN DOR WHOLESALERS 1-10: Hanis County Clerk of Supetior 6
3 or Court
Defendants Stacy K. Haralson
JUDGMENT OF DEFAULT AGAINST DEFENDANT
SHENZHEN FEST TECHNOLOGY CO., LTD.
‘The above styled action, having come before the Court for a bench trial on Pleintifis!
Motion for a Default Judgment as to ShenZhen Fest ‘Technology Ca., Ltd. on thea” day of
20185 and the Court having heard testimony and admitted into evidence
and considered the testimony and other tangible evidence hereby renders a final judgment in
favor of Plaintiffs against Defendant ShenZhen Fest Technology Co., Ltd. in the amount of
$4,203, 242. ° |
Findings of Fact and Conclusions of, Law
‘ Lo
The Court finds that Plaintiffs’ U.S.C.R. 15 Certification attached hereto as Exhibit “A”
is an accurate description of the procedural history of the case (and is also set out fully in
Plaintiff's Motion for Default and Exhibits thereto) up to the time of trial and this Court is
EJORIGINALauthorized to enter a default judgment as to liability against Defendant ShenZhen Fest
' Technology Co., Ltd. and hear evidence as to damages.
2.
All allegations against Defendant ShenZhen Fest Technology Co., Ltd. in the Complaint
‘ are admitted by virtue of Defendant ShenZhen Fest Technology Co., Ltd’s failure to answer or
otherwise respond and resultant default and are , therefore, hereby considered as true by this
Court,
3.
The Court hereby adopts and incorporates Plaintiffs’ US.CR 15 Certification into this
final award and Judgment and issues a default judement as to liability against this Defendant.
4.
The Defendant ShenZhen Fest Technology Co., Ltd. isa Chinese corporation located in
China, The United States and China are signatures to The Hague Convention. This Court is
authorized to render a default judgment pursuant to The Hague Convention, Article 15,
Paragraph 2 and 0.C.G.A. §9-11-52. ,
5.
The Plaintiffs prébented evitience sufficient to bear their burden of proof to authorize this
Court to enter a verdict in their favor as tq the issue of damages.
6.
The Plaintiff Robbie Lee Gilleland suffered serious bums and other injuries to his body as
aresult of the Defendant ShenZhen Fest’s defective ion lithium e-cigarette battery which
exploded in his pocket.
-2-7.
Plaintiff Robbie Lee Gilleland is entitled to special and compensatory damages as a result
of the same. He required skin grafts, suffered extreme physical pain, mental and emotional
anguish and has permanent disfigurement and scarring.
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He has incurred medical expenses and lost wages as aresult of this injuries.
9.
The Plaintiff Rebecca Gilleland suffered a loss of consortium and a loss of the society,
comfort, companionship of her spouse, Robbie Lee Gilleland, as a result of his injuries and
damages.
10,
The Court hereby awards the Plaintifis the following damages pursuant to 0.C.G.A. §§
51-12-1; 51-12-2; and 5-1-9.
(a) Special damages: ff /(2, 712. ;
(bt) Compensatory/general damages: (including permanent disfigurement and
scarring) 6 GSO. * and °
(c) ° Damages for loss of consortium: Z Io, rab: ” :
: Total Award:_{ 2,203, 342.
This Court renders a verdict in favor of. Plaintiffs against Defendant ShenZhen Fest
Technology Co., Ltd. in the amount of $. a ; 203, 399. wv which is hereby made the
oP
3.Final Judgment of this Court.
i
This BA sy SG eracey,— 201
Z
‘ Ke i
Hon. WititerG-Remer Arthur Sl.
hoocher Fudieial Cirenit
Superior Court of Harris CountyCERTIFICATE OF SERVICE
I hereby certify that on September , 2017; 1 electronically filed the foregoing
JUDGMENT OF DEFAULT with the Clerk of Court using the CM/ECF system which will
send notification of such filing by e-mail to the following:
Cody B. Gillies
Meacham & Earley, P.C.
P.O, Box 9031
* Columbus, GA 31908 .
_ Attorney for Defendant Tasteful Vapes, LLC
Lalso certify that I have mailed by United States Postal Service the document and a copy of the
Notice of Electronic Filing to the following non-CM-ECF participants:
ShenZhen Fest Technology Co., LTD
Floor 8, Building C, SAR.
1980 Cultural Industry Park
Minfa Road, Minzhi, Longhua new district
Shenzhen, Guandong, China
This___"_day of September, 2017
Jsi David A, Sleppy
DAVID A. SLEPPY
Ga, State Bar No. 652410
Cathey & Strain, LLC
P.O. Box 689
Comelia, GA 30531
706-778-2601 (telephone)
106-776-2899 (facsimile)
dsleppy@catheyandstrain.com
/sf Prakash Patel
PRAKASH PATEL
Ga. State Bar No. 565817
Josht & Patel, LLC
P.O. Box 1837
Buford, GA 30515
404-969-1212 (telephone)
678-868-1009 (facsimile)
ppatel@jpattorneys.com
ATTORNEYS FOR PLAINTIFFS
SeIN THE SUPERIOR COURT OF HARRIS COUNTY
STATE OF GEORGIA
ROBBIE LEE GILLELAND and : .
REBECCA GILLELAND CIVIL ACTION
Plaintiffs : FILENO, 16-CV-206
vs, :
SHENZHENFEST TECHNOLOGY:
CO.,LTD, TASTEFULL VAPES,LLC, =
JOHN DOE DISTRIBUTORS 1-10,
and JOHN DOE WHOLESALERS 1-10
Defendants
SUPERIOR COURT RULE.15 CERTIFICATION
Comes now the Plaintiffs, by and through their undersigned counsel and pursuant to
Unifom Superior Court Rule 15 hereby certifies to the Court as follows:
1(s) The Defendant ShenZhen Fest Technology Co., Ltd. is a Chinese corporation with
its principal plac of business in ShenZhen, Guandong Province, China. Itisa
signatary to the Hague Convention. ,
(®) _ APS International, Ltd. is a company which specializes in international service of
process and was appointed by this Court a8 special agent for service ofthe ~
Summons, Complaint, and other necessary documents in the instant case upon
Defendant. ShenZhen Fest Technology Co., Ltd. in China in accordance withthe = '
provisions of the Hague Convention on July 19, 2016, Diane K. Myers, an
authorized paralegal inthe employ of APS Intemational, Ltd. executed an
Affidavit on May 18, 2017, showing proof of service upon ShenZhen Fest
EXHIBIT A
@ EFILED IN OFFICE
CLERK OF SUPERIOR COURT
HARRIS GOUNTY, GEORGIA
16-CV-206
SEP 19, 2017 04:20 PM(©)
@.
©
©
2.
Téchziology Co., Ltd. in accordancé with paragraph 2, Article 15 of the Hague
Conventions and the Default Provisions of the Hague Convention. The Affidavit
has been filed with the Court. ,
APS Intemational , Ltd. followed the formal service procedures required by the
Hague Convention (TIAS No. 10072 and 20 UST 361)
The documents of the suit in the instant action were properly transmitted to the
appropriate Central Authority in China by intemational courier on August 11, 2016-
and delivered to the Chinese Central Authority, the Ministry of Justice at the
Intemational Legal'Corporation Center in Beijing, China on August 15, 2016 and
signed for by “Y. Chen” at The Central Authority. ,
A period of time in excess of six months has elapsed since the suit documents were
transmitted abroad for service and no proof of service, by The Central Authority on
Defendant ShenZhen Fest Technology Co., Ltd., or any certificate of service, bas
been received, ,
On December 12, 2016, follow up documents were sent to the Central Authority by
Federal Express requesting status of service as reflected in the Affidavit of Diane
K. Myers. . ‘ ,
Pursuant to the Hague Convention, paragraph 2, Article 15, this Court is authorized
to grant a default judgment notwithstanding the absence of proof of actual physical
service. ‘
‘The proof of service upon ShenZhen Fest Technology Co., Ltd, was filed as an
exhibit to Plaintiff's Motion for Default Judgment on August 10, 2017, and the Affidavit of Diane
QeK. Myers of APS Intemational, Ltd. referenced herein was separately filed on September 19,
2017.
3. No defensive pleading has been filed by the Defendant ShenZhen Fest Technology
Co., Ltd. as shown by Court records,
4, — There is no issue as to the Defendant's military status.
5. Acopy of this certificate will be attached to the proposed default judgment when
presented to this Court for signature.
ds[ David A. Sleppy
DAVID A. SLEPPY
Gaz State Bar No, 652410
Cathey & Strain, LLC
P.O. Box 689
Comelia, GA 30531”
706-778-2601 (telephone)
706-776-2899 (facsimile)
dsleppy@catheyandstrain.com
is{ Prakash Patel
PRAKASH PATEL
Ga, State Bar No, 565817
Joshi & Patel, LLC
P.O, Box 1837
Buford, GA 30515
404-969-1212 (telephone)
678-868-1009 (facsimile)
ppatel@jpattomeys.com
ATTORNEYS FOR PLAINTIFFSR ERVIC
Thereby certify that on September _]]_, 2017, I electronically filed the foregoing
: SUPERIOR COURT RULE 15 CERTIFICATION with the Clerk of Court using the CM/ECF
* system which will send notification of such filing by e-mail to the following:
Cody B. Gillies
Meacham & Earley, P.C,
P.O. Box 9031
Columbus, GA 31908
Attorney for Defendant Tasteftil Vapes, LLC
ShenZhen Fest Technology Co., LTD
Floor 8, Building C, SAR.
1980 Cultural Industry Park
Minfia Road, Minzhi, Longhua new district
Shenzhen, Guandong, China
' Talso certify that I have mailed by United States Postal Service the document and a copy of the
Notice of Blectronic Filing to the following non-CM-ECF participants: ShenZhen Fest
* ‘Technology Co., Ltd,
this 4 day of September, 2017
: . ds! David A. Sleppy
. DAVID A. SLEPPY
Ga, Staté Bar No. 652410
Cathey & Strain, LLC
P.O. Box 689
Cornelia, GA 30531
706-778-2601 (telephone)
706-776-2899 (facsimile)
dsleppy@catheyandstrain.com
dst Prakash Patel
PRAKASH PATEL
Ga, State Bar No. 565817
Joshi & Patel, LLC
P.O. Box 1837
' Buford, GA 30515
404-969-1212 (telephone)
678-868-1009 (facsimile)
ppatel@jpattorneys.com
ATTORNEYS FOR PLAINTIFFSvA kwon
oOo Oo ND
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PROOF OF SERVICE
SHENZHEN FEST TECHNOLOGY CO., LTD
hongyan@cadmon.net
zhanghonglu@inipa.com
efest @efestpower.com
Tina@efestpower.com
sales@efestpower.com
admin@efestpower.com
help@efestpower.com
kiko@efestpower.com
I declare:
Iam employed in the County of San Francisco, California. I am over the age of eighteen
(18) years and not a party to the within cause. My business address is 165 Fell Street, San
Francisco, CA 94102, On the date set forth below, I served the attached:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE
OF MOTION AND FOR ASSIGMENT OF RIGHTS, TURNOVER ORDER, AND
RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.
[PROPOSED] ORDER GRANTING MOTION FOR ASSIGNMENT OF RIGHTS
UNDER C.C.P. §708.510(a), RESTRAINING ORDER UNDER C.C.P. §708.520(a), AND
TURNOVER ORDER UNDER C.C.P. §699.040, PURSUANT TO C.C.P. §1710.45(b)(2),
AND THAT ALL ASSETS LEVIED UPON SHALL BE IMPOUNDED PENDING
SERVICE OF THE NOTICE OF ENTRY OF THE SISTER STATE JUDGMENT AND
APPLICATION THEREON, PURSUANT TO C.C.P. §1710.30(a).
[ASSIGNMENT MOTION]
on the above-named person(s) by:
(USPS FIRST CLASS MAIL) Delivering a true copy thereof, enclosed in a
sealed envelope with postage thereon fully prepaid, to a USPS mailbox at San Francisco,
California, addressed to the person(s) served above.
(FEDERAL EXPRESS OVERNIGHT MAIL) Delivering a true copy thereof,
enclosed in a sealed envelope with postage thereon fully prepaid, to a Federal Express dropoff
location at San Francisco, California, addressed to the person(s) served above.
XXX (BY E-SERVICE) Via One Legal’s electronic service systemtoTieemail
address(es) above
I declare under penalty of perjury that the foregoing is true and 9
Executed on April 22, 2019 at San Francisco, Califop
Preview
oe IN DAH BR WN Nv tv rr a ar RBueRRRBEBREBSGESRVEBDESBHAS DAVID J. COOK, ESQ. SBN 060859 COOK COLLECTION ATTORNEYS ELECTRONICALLY A PROFESSIONAL LAW CORPORATION FILED 165 Fell Street, San Francisco, CA 94102 Superior Court of California P.O. Box 270, San Francisco, CA 94104-0270 County of San Francisco Telephone: (415) 989-4730 Facsimile: (415) 989-0491 04/22/2019 cook@cookcollectionattomeys.com BY:CAROL BALISTRERI Our File No. 58,002 Deputy Clerk Attorneys for Plaintiffs ROBBIE LEE GILLELAND and REBECCA GILLELAND + SUPERIOR COURT FOR THE STATE OF CALIFORNIA ‘COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION ROBBIE LEE GILLELAND CASE NO. CPF 19-516563 and REBECCA GILLELAND, MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR vs. ASSIGNMENT OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER SHENZHEN FEST TECHNOLOGY UNDER C.C.P. SECTION 708.501 SEQ. CO., LTD, Defendant. Date of Hearing: April 23, 2019 Time of Hearing: 9:00 a.m. Department: 301 (Enforcement of a Judgment) Name of Judge: Honorable: PAUL RENNE tt eee FULL FAITH AND CREDIT ENABLE PLAINTIFF TO DOMESTICATE THIS JUDGMENT IN THE STATE OF CALIFORNIA Judgment has been rendered in the trial courts of the State of Georgia, a copy of which is attached hereto, marked Exhibit “A” and incorporated by reference. -l- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.om NDA WH 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The issue raised by the court is whether ths court has the jurisdiction to issue any relief. The starting point is that this court granted on April 22, 2019 the Notice of Motion and Motion for an Assigment before the Honorable Ethan Schulman. Under the Full, Faith and Credit Clause of the United Stated Constitution, Plaintiff is entitled to domesticate this judgment in this state as follows: The situation, rather, falls within the principle enunciated in Lewis v. Linder (1963) 217 Cal.App.2d 150, 151—152, 31 Cal.Rptr. 563, 564: ‘We agree that as a general rule a judgment of a sister state having no jurisdiction to render the judgment is not entitled to the full faith and tredit which the Constitution of the United States demands and further that the courts of our state will not recognize a judgment of a sister state if that state did not have jurisdiction. However, ‘If the court of the sister state which rendered the decree has expressly litigated the question of jurisdiction, that determination is res judicata and is itself protected by the full faith and credit clause. The question may not be relitigated in ths state. (Citation,) In the Perkins’ case (Perkins v. Benguet Consol. Min. Co., 55 Cal.App.2d 720, 132 P.2d 70) the court declared, 55 Cal.App.2d 743, 132 P.2d page 85: ‘The rule that it always may be shown that the judgment of the other state, territory, or country subject to the jurisdiction of the United States is in excess of jurisdiction or affected with fraud, is, however, subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional questions or the matter of fraud, that determination becomes res judicata on those points and is itself protected by the full faith and credit clause. The jurisdictional and fraud questions cannot be relitigated a second time in another state. (Citations.) “ (Tomkins v. Tomkins, 89 Cal.App.2d 243, 251, 200 P.2d 821, 826.) fanpietro v. Collins, 250 Cal. App. 2d 203, 208, 58 Cal. Rptr. 219, 222-23 (Ct. App. 1967) See also Brinker v. Superior Court, 235 Cal. App. 3d 1296, 1299-300, 1 Cal. Rptr. 2d 358, 359-60 (Ct. App. 1991) as follows: “Article IV, section 1 of the United States Constitution provides that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” The Federal Judicial Code further provides, “Such Acts, records and judicial proceedings or copies thereof ... shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken,” (28 U.S.C., § 1738.) “It has long been the law that ‘the judgment of a state court should have the same, credit, validity, and effect in every other court in the United States, which it had in the state where it was pronounced.’ ” (Thomas v. Washington Gas Light Co. (1980) 448 U.S. 261, 270, 100 S.Ct. 2647, 2655, 65 L.Ed.2d 757.) “The rare exceptions to the application of the full faith and credit clause arise only when there is a violation of some fundamental state public policy.... [T]here is no precedent for an exception in the case of a money judgment ina civil suit.” (Silbrico Corp. v. Raanan (1985) 170 Cal.App.3d 202, 208, 216 Cal Rpt. 201, citing United Bank of Denver v. K & Y Trucking Co., Inc. (1983) 147 Cal.App.3d 217, 222, 195 Cal.Rptr. 49.) -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.om IY A HW RB YW NY | N NN NY =| | — es B&B ®RRPEBBREBSGESIVIABDESERTS DATED: April 22, 2019 Therefore, under California law, the judgment of a sister state must be given full faith and credit if that sister state had jurisdiction over the parties and the subject matter, and all interested parties were given reasonable notice and opportunity to be heard. *1300 (World Wide Imports, Inc. v. Bartel 1983) 145 Cal.App.3d 1006, 1010, 193 Cal.Rptr. 830.) All these criteria were met in the present case. See Washoe Dev. Co. v. Guar. Fed. Bank, 47 Cal. App. 4th 1518, 1523-24, 55 Cal. Rptr. 2d 479, 483 (1996): There are several cases which demonstrate that the defenses raised by appellants cannot overcome the full faith and credit obligation California must accord the Nevada judgment. In United Bank of Denver v. K & W Trucking Co. (1983) 147 Cal.App.3d 217, 195 Cal.Rptr. 49, the court determined ‘that a Colorado judgment registered in California under the Act was entitled to full faith and credit and could not be vacated under section 1710.40 despite a claim that it violated the public policy of California, as expressed in section 580d, prohibiting deficiency judgments following a nonjudicial foreclosure sale. It was undisputed that the Colorado court had the requisite fundamental jurisdiction in the action; it had jurisdiction over both subject matter and the judgment debtors in the case, who were given ample opportunity to defend the case. Consequently, the public policy or laws of the enforcing state regarding deficiency judgments could not contravene the full faith and credit clause of the Constitution. The court reasoned: “Deficiency judgments are only statutorily limited and are not inherently objectionable, as such judgments are not a threat to the moral or ethical standards of the citizens of this state. We, therefore, conclude that a deficiency judgment in a sister state is not so offensive so as to compel this court to recognize an exception to the full faith and credit clause of the United States Constitution.” (Ud. at p. 223, 195 Cal.Rptr. 49, italics added.) The case of Silbrico Corp. v. Raanan, supra, 170 Cal.App.3d 202, 216 Cal.Rptr. 201, dealt explicitly with a sister state money judgment entered pursuant to a settlement agreement sought to be enforced under the Act. The court considered and rejected the judgment debtor's arguments that the judgment should be vacated under section 1710.40 because the terms of the sister state judgment constituted an unenforceable penalty under California law and failed to meet the requirements of section 1133 pertaining to judgment by confession. The court held that the judgment debtor's“So-called” defenses under section 1710.40 could not be asserted in response to the i ia j the court rendering the judgment had fundamerta California court was required to give it Pe REBECCA GILLELAND . -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGNMENT OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ.EXHIBIT “A”EXEMPLIFICATION Georgia, Harris County yy, jennifer Guerrero, Deputy, Clerk of Superior Court of Harris County, do hereby certify that I have compared the foregoing copy of, IF DEFAULT At ANT SHENZHEN FEST TE! {e) Y, 16-CV-: with the original record thereof, now remaining in this office, and the same is a correct transcript therefrom, and the whole of such original record, and that said Court is a Court of Record. . IN TESTIMONY WHEREOF, ] have thereunto set my hand and affixed the seal of said Court, this 11th day of FEBRUARY. 2019, Ds . . Georgia, Harris County do certify that I am Judge of the Superior Court of said county, and that I am the presiding Judge of ‘L Maureen Gottfried, said Coust and that the above attestation, subscribed by Clerk’of: ‘said Court, is. sufficient and in due form of law, and that his signature thereto is genuine. - Witness my hand an official signature, this 11th day of FEBRUARY, 2019 Gottfried, Jidge « Superior Court of Harris Cot Chattahoochee Judicial Circuit Georgia, Harris County ‘the Superior Court in and for said County, hereby certify that the above attestation of i Jennifer Guerrero, Deputy Clerk of f the Superior Court of Harris County, Georgia, is his genuine signature, and that he is Judge ‘Wonorable Maureen Gottfried, Judge o of said) Court, and said certificate is in due form of law. ' :Given under my hand and seal of office, this 11th day of FEBRUARY, 2019IN THE SUPERIOR COURT OF HARRIS COUNTY STATE OF GEORGIA ROBBIE LEE GILELAND and : REBECCA GILLELAND : CIVILACTION "Plaintiffs ; -FILENO. 16-CV-206 . : Yo° | FILEDIN _ SHENZHEN FEST TECHNOLOGY : t~ OPEN Cour CO.,LTD. TASTEFULL VAPES,LLC, : JAN 22. _ JOHN DOEDISTRIBUTORS 1-10, : ' 22 20g and JOHN DOR WHOLESALERS 1-10: Hanis County Clerk of Supetior 6 3 or Court Defendants Stacy K. Haralson JUDGMENT OF DEFAULT AGAINST DEFENDANT SHENZHEN FEST TECHNOLOGY CO., LTD. ‘The above styled action, having come before the Court for a bench trial on Pleintifis! Motion for a Default Judgment as to ShenZhen Fest ‘Technology Ca., Ltd. on thea” day of 20185 and the Court having heard testimony and admitted into evidence and considered the testimony and other tangible evidence hereby renders a final judgment in favor of Plaintiffs against Defendant ShenZhen Fest Technology Co., Ltd. in the amount of $4,203, 242. ° | Findings of Fact and Conclusions of, Law ‘ Lo The Court finds that Plaintiffs’ U.S.C.R. 15 Certification attached hereto as Exhibit “A” is an accurate description of the procedural history of the case (and is also set out fully in Plaintiff's Motion for Default and Exhibits thereto) up to the time of trial and this Court is EJORIGINALauthorized to enter a default judgment as to liability against Defendant ShenZhen Fest ' Technology Co., Ltd. and hear evidence as to damages. 2. All allegations against Defendant ShenZhen Fest Technology Co., Ltd. in the Complaint ‘ are admitted by virtue of Defendant ShenZhen Fest Technology Co., Ltd’s failure to answer or otherwise respond and resultant default and are , therefore, hereby considered as true by this Court, 3. The Court hereby adopts and incorporates Plaintiffs’ US.CR 15 Certification into this final award and Judgment and issues a default judement as to liability against this Defendant. 4. The Defendant ShenZhen Fest Technology Co., Ltd. isa Chinese corporation located in China, The United States and China are signatures to The Hague Convention. This Court is authorized to render a default judgment pursuant to The Hague Convention, Article 15, Paragraph 2 and 0.C.G.A. §9-11-52. , 5. The Plaintiffs prébented evitience sufficient to bear their burden of proof to authorize this Court to enter a verdict in their favor as tq the issue of damages. 6. The Plaintiff Robbie Lee Gilleland suffered serious bums and other injuries to his body as aresult of the Defendant ShenZhen Fest’s defective ion lithium e-cigarette battery which exploded in his pocket. -2-7. Plaintiff Robbie Lee Gilleland is entitled to special and compensatory damages as a result of the same. He required skin grafts, suffered extreme physical pain, mental and emotional anguish and has permanent disfigurement and scarring. 8 He has incurred medical expenses and lost wages as aresult of this injuries. 9. The Plaintiff Rebecca Gilleland suffered a loss of consortium and a loss of the society, comfort, companionship of her spouse, Robbie Lee Gilleland, as a result of his injuries and damages. 10, The Court hereby awards the Plaintifis the following damages pursuant to 0.C.G.A. §§ 51-12-1; 51-12-2; and 5-1-9. (a) Special damages: ff /(2, 712. ; (bt) Compensatory/general damages: (including permanent disfigurement and scarring) 6 GSO. * and ° (c) ° Damages for loss of consortium: Z Io, rab: ” : : Total Award:_{ 2,203, 342. This Court renders a verdict in favor of. Plaintiffs against Defendant ShenZhen Fest Technology Co., Ltd. in the amount of $. a ; 203, 399. wv which is hereby made the oP 3.Final Judgment of this Court. i This BA sy SG eracey,— 201 Z ‘ Ke i Hon. WititerG-Remer Arthur Sl. hoocher Fudieial Cirenit Superior Court of Harris CountyCERTIFICATE OF SERVICE I hereby certify that on September , 2017; 1 electronically filed the foregoing JUDGMENT OF DEFAULT with the Clerk of Court using the CM/ECF system which will send notification of such filing by e-mail to the following: Cody B. Gillies Meacham & Earley, P.C. P.O, Box 9031 * Columbus, GA 31908 . _ Attorney for Defendant Tasteful Vapes, LLC Lalso certify that I have mailed by United States Postal Service the document and a copy of the Notice of Electronic Filing to the following non-CM-ECF participants: ShenZhen Fest Technology Co., LTD Floor 8, Building C, SAR. 1980 Cultural Industry Park Minfa Road, Minzhi, Longhua new district Shenzhen, Guandong, China This___"_day of September, 2017 Jsi David A, Sleppy DAVID A. SLEPPY Ga, State Bar No. 652410 Cathey & Strain, LLC P.O. Box 689 Comelia, GA 30531 706-778-2601 (telephone) 106-776-2899 (facsimile) dsleppy@catheyandstrain.com /sf Prakash Patel PRAKASH PATEL Ga. State Bar No. 565817 Josht & Patel, LLC P.O. Box 1837 Buford, GA 30515 404-969-1212 (telephone) 678-868-1009 (facsimile) ppatel@jpattorneys.com ATTORNEYS FOR PLAINTIFFS SeIN THE SUPERIOR COURT OF HARRIS COUNTY STATE OF GEORGIA ROBBIE LEE GILLELAND and : . REBECCA GILLELAND CIVIL ACTION Plaintiffs : FILENO, 16-CV-206 vs, : SHENZHENFEST TECHNOLOGY: CO.,LTD, TASTEFULL VAPES,LLC, = JOHN DOE DISTRIBUTORS 1-10, and JOHN DOE WHOLESALERS 1-10 Defendants SUPERIOR COURT RULE.15 CERTIFICATION Comes now the Plaintiffs, by and through their undersigned counsel and pursuant to Unifom Superior Court Rule 15 hereby certifies to the Court as follows: 1(s) The Defendant ShenZhen Fest Technology Co., Ltd. is a Chinese corporation with its principal plac of business in ShenZhen, Guandong Province, China. Itisa signatary to the Hague Convention. , (®) _ APS International, Ltd. is a company which specializes in international service of process and was appointed by this Court a8 special agent for service ofthe ~ Summons, Complaint, and other necessary documents in the instant case upon Defendant. ShenZhen Fest Technology Co., Ltd. in China in accordance withthe = ' provisions of the Hague Convention on July 19, 2016, Diane K. Myers, an authorized paralegal inthe employ of APS Intemational, Ltd. executed an Affidavit on May 18, 2017, showing proof of service upon ShenZhen Fest EXHIBIT A @ EFILED IN OFFICE CLERK OF SUPERIOR COURT HARRIS GOUNTY, GEORGIA 16-CV-206 SEP 19, 2017 04:20 PM(©) @. © © 2. Téchziology Co., Ltd. in accordancé with paragraph 2, Article 15 of the Hague Conventions and the Default Provisions of the Hague Convention. The Affidavit has been filed with the Court. , APS Intemational , Ltd. followed the formal service procedures required by the Hague Convention (TIAS No. 10072 and 20 UST 361) The documents of the suit in the instant action were properly transmitted to the appropriate Central Authority in China by intemational courier on August 11, 2016- and delivered to the Chinese Central Authority, the Ministry of Justice at the Intemational Legal'Corporation Center in Beijing, China on August 15, 2016 and signed for by “Y. Chen” at The Central Authority. , A period of time in excess of six months has elapsed since the suit documents were transmitted abroad for service and no proof of service, by The Central Authority on Defendant ShenZhen Fest Technology Co., Ltd., or any certificate of service, bas been received, , On December 12, 2016, follow up documents were sent to the Central Authority by Federal Express requesting status of service as reflected in the Affidavit of Diane K. Myers. . ‘ , Pursuant to the Hague Convention, paragraph 2, Article 15, this Court is authorized to grant a default judgment notwithstanding the absence of proof of actual physical service. ‘ ‘The proof of service upon ShenZhen Fest Technology Co., Ltd, was filed as an exhibit to Plaintiff's Motion for Default Judgment on August 10, 2017, and the Affidavit of Diane QeK. Myers of APS Intemational, Ltd. referenced herein was separately filed on September 19, 2017. 3. No defensive pleading has been filed by the Defendant ShenZhen Fest Technology Co., Ltd. as shown by Court records, 4, — There is no issue as to the Defendant's military status. 5. Acopy of this certificate will be attached to the proposed default judgment when presented to this Court for signature. ds[ David A. Sleppy DAVID A. SLEPPY Gaz State Bar No, 652410 Cathey & Strain, LLC P.O. Box 689 Comelia, GA 30531” 706-778-2601 (telephone) 706-776-2899 (facsimile) dsleppy@catheyandstrain.com is{ Prakash Patel PRAKASH PATEL Ga, State Bar No, 565817 Joshi & Patel, LLC P.O, Box 1837 Buford, GA 30515 404-969-1212 (telephone) 678-868-1009 (facsimile) ppatel@jpattomeys.com ATTORNEYS FOR PLAINTIFFSR ERVIC Thereby certify that on September _]]_, 2017, I electronically filed the foregoing : SUPERIOR COURT RULE 15 CERTIFICATION with the Clerk of Court using the CM/ECF * system which will send notification of such filing by e-mail to the following: Cody B. Gillies Meacham & Earley, P.C, P.O. Box 9031 Columbus, GA 31908 Attorney for Defendant Tasteftil Vapes, LLC ShenZhen Fest Technology Co., LTD Floor 8, Building C, SAR. 1980 Cultural Industry Park Minfia Road, Minzhi, Longhua new district Shenzhen, Guandong, China ' Talso certify that I have mailed by United States Postal Service the document and a copy of the Notice of Blectronic Filing to the following non-CM-ECF participants: ShenZhen Fest * ‘Technology Co., Ltd, this 4 day of September, 2017 : . ds! David A. Sleppy . DAVID A. SLEPPY Ga, Staté Bar No. 652410 Cathey & Strain, LLC P.O. Box 689 Cornelia, GA 30531 706-778-2601 (telephone) 706-776-2899 (facsimile) dsleppy@catheyandstrain.com dst Prakash Patel PRAKASH PATEL Ga, State Bar No. 565817 Joshi & Patel, LLC P.O. Box 1837 ' Buford, GA 30515 404-969-1212 (telephone) 678-868-1009 (facsimile) ppatel@jpattorneys.com ATTORNEYS FOR PLAINTIFFSvA kwon oOo Oo ND 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE SHENZHEN FEST TECHNOLOGY CO., LTD hongyan@cadmon.net zhanghonglu@inipa.com efest @efestpower.com Tina@efestpower.com sales@efestpower.com admin@efestpower.com help@efestpower.com kiko@efestpower.com I declare: Iam employed in the County of San Francisco, California. I am over the age of eighteen (18) years and not a party to the within cause. My business address is 165 Fell Street, San Francisco, CA 94102, On the date set forth below, I served the attached: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE NOTICE OF MOTION AND FOR ASSIGMENT OF RIGHTS, TURNOVER ORDER, AND RESTRAINING ORDER UNDER C.C.P. SECTION 708.501 SEQ. [PROPOSED] ORDER GRANTING MOTION FOR ASSIGNMENT OF RIGHTS UNDER C.C.P. §708.510(a), RESTRAINING ORDER UNDER C.C.P. §708.520(a), AND TURNOVER ORDER UNDER C.C.P. §699.040, PURSUANT TO C.C.P. §1710.45(b)(2), AND THAT ALL ASSETS LEVIED UPON SHALL BE IMPOUNDED PENDING SERVICE OF THE NOTICE OF ENTRY OF THE SISTER STATE JUDGMENT AND APPLICATION THEREON, PURSUANT TO C.C.P. §1710.30(a). [ASSIGNMENT MOTION] on the above-named person(s) by: (USPS FIRST CLASS MAIL) Delivering a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, to a USPS mailbox at San Francisco, California, addressed to the person(s) served above. (FEDERAL EXPRESS OVERNIGHT MAIL) Delivering a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, to a Federal Express dropoff location at San Francisco, California, addressed to the person(s) served above. XXX (BY E-SERVICE) Via One Legal’s electronic service systemtoTieemail address(es) above I declare under penalty of perjury that the foregoing is true and 9 Executed on April 22, 2019 at San Francisco, Califop