Preview
Ryan K. J. Mau — SBN 146221
LAW OFFICE OF RYAN MAU, PC
333
San
Tel:
Fax:
Bush Street, 21“ Floor
Francisco, CA 94104
(415) 296-7700
(415) 296-7600
Email: ryan@rmaulaw.com
Atto:
mmeys for Defendants,
WILLIAM WONG and WWJW FAMILY LLC
TON KIANG RESTAURANT, INC.
vs.
WILLIAM WONG, WWIJW FAMILY LLC,
a California Limited Liability Company, and
ELECTRONICALLY
FILED
Superior Court of Catifornia,
County of San Francisco
04/11/2019
Clerk of the Court
BY: EDWARD SANTOS
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION
Plaintiff,
DOES | - 10, inclusive,
Defendants.
Ne
Case No. CGC-19-574262
DEFENDANTS’ REQUEST FOR
JUDICIAL NOTICE IN SUPPORT OF
DEMURRER TO COMPLAINT
Hearing Date: May 10, 2019
Time: 9:30 a.m.
Department: 501
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Defendants WILLIAM WONG and WWJW FAMILY LLC hereby move for and request,
pursuant to California Evidence Code §§452 (d) and 453, that judicial notice is taken of the
following records in the matter of Ton Kiang Restaurant, Inc. v. William Wong, WWJW Family
LLC, a California Limited Liability Company, et al.:
dt
1. Plaintiff's Complaint filed on March 4, 2019
California Evidence Code §452 (d) states in pertinent part:
Records of (1) any court of this state or (2) any court of record of the United
States or any state of the United States.
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINT27
28
California Evidence Code §453 states:
The trial court shall take judicial notice of any matter specified in section 452
if a party requests it and: (a) Gives each adverse party sufficient notice of the
request, through the pleadings or otherwise, to enable such adverse party to
prepare to meet the request; and (b) Furnishes the court with sufficient
information to enable it to take judicial notice of the matter.
Here, Record No. 1, of which judicial notice is requested, is part of the Court’s file in the
matter of Ton Kiang Restaurant, Inc. v. William Wong, WWJW Family LLC, a California Limited
Liability Company, et al., San Francisco Superior Court Case No. CGC-19-574262.
The matters which Defendants WILLIAM WONG and WWJW FAMILY LLC request
judicial notice of are matters well within that type of matters which courts take judicial notice.
The facts for which Judicial Notice are requested are not in dispute.
Dated: April 11,2019 LAW OFFICE OF RYAN MAU, PC
By: __/s/ Ryan K.J. Mau
Ryan K. J. Mau
Attorneys for Defendants
WILLIAM WONG and
WWJW FAMILY LLC
DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINTRECORD NO. 1—PLAINTIFF’S COMPLAINT
(COURTESY COPY)cy
FREAR STEPHEN SCHMID (CSB #96089)
ATTORNEY AT LAW
7585 Valley Ford Road
Petaluma, CA 94952
Telephone: (415) 788-5957
JOHN K. KAO (CSB #68346)
JOHN KAO LAW OFFICE
Russ Building, Suite 1026
235 Montgomery Street
San Francisco, CA 94104
Telephone: (415) 362-9390
Facsimile: (415) 362-9398
Email: JKao@Kaolaw.com
| Attorneys for Plaintiff
TON KIANG RESTAURANT, INC.
SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRAGISCO, 9-57
UNLIMITED CIVIL JURISDICTION
TON KIANG RESTAURANT, INC.
Plaintiff,
vs.
WILLIAM WONG, WWJW FAMILY LLC,
a California Limited Liability Company, and
DOES 1-10, inclusive,
Defendants.
4262
No.
VERIFIED COMPLAINT FOR BREACH
OF TRUST, BREACH OF FIDUCIARY
DUTY, QUIET TITLE, DECLARATORY
RELIEF, AND INJUNCTIVE RELIEF
Comes now plaintiff Ton Kiang Restaurant, Inc. ("Ton Kiang") and alleges as follows:
FIRST CAUSE OF ACTION
[Breach of Trust]
VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
iii| WWJW FAMILY LLC. As between them, the allegations herein against either or both apply to both
where appropriate. Defendants Does 1-10 are responsible for and liable for the acts herein alleged
i and are sued by such fictitious names and will be named herein by their true names and identities
I} when they are discovered.
Ching Su Wong. The funds were provided in trust for, conditioned on, and subject to the family
| beneficial interest of the establishment and operation of a restaurant business conducted by plaintiff
jj at said property. The Property was only placed in the name of defendants and their predecessors in
ij interest for the convenience and benefit of plaintiff. Defendants and their predecessors in interest
hu any
7 et
1. Plaintiffis a closely held California corporation doing business as a restaurant at 5821
Geary Boulevard in the City and County of San Francisco, State of California and is the true owner off
real property (hereinafter “Property’”) at that address in San Francisco, California. The plaintiff is a
family corporation, made up completely of the parents and their children. Defendant WWJW
FAMILY LLC is the name in which naked legal title to the Property is currently vested. As set
below due to his acts of and assertion of control over the naked title to the Property, defendant
William Wong ("Wong") is a controlling shareholder in plaintiff. Defendant Wong is the alter ego of|
2. The Property was purchased with funds provided by the parents Chin Boon Wong and
took title being fully aware of the trust imposed on the Property and that no beneficial title was
attached to the bare naked legal title to the Property. Defendants therefor never acquired any
beneficial interest in said property, including any possessory interest, but were to hold said property
as a fiduciary for plaintiff. Defendants, to induce plaintiff's reliance, have acted consistent with the
trust on the Property for numerous years, and plaintiff acted in reliance thereon to its detriment by
actively building the Property out, maintaining and operating the restaurant business on the
Property, such that defendants are equitably estopped from claiming any interest in the property
other than as a fiduciary without any beneficial interest in the property, including any possessory
interest. Defendants only obtained naked title and the claimed interest to the Property by actively
concealing their hidden intent to abuse the naked title and use it to claim a beneficial title in breach
of the trust and deceptively by taking advantage of the natural trust assumed and reposed between
siblings, parents and children.
VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
-2-c
3. On or about November 1, 2018, defendants engaged in self-dealing activity in breach of
their fiduciary status for their own gain and violative of plaintiff ‘s rights in and to the Property by
improperly initiating eviction proceedings against plaintiff from said property. Such self-dealing
action are detrimental to plaintiff's business as an eviction would destroy the restaurant, which has
been in business for over 25 years and currently employs 33 people between the kitchen and the
dining room. Defendants’ action is in breach of the trust under which the property is held for
plaintiff's benefit. Such action constitutes constructive fraud on plaintiff. Such action unless
enjoined will irreparably harm plaintiff.
SECOND CAUSE OF ACTION
[Breach of Fiduciary Duty Against Defendant Wong]
4, Plaintiff incorporates and realleges by this reference the foregoing paragraphs.
5. Defendant Wong, by virtue of his wrongfully asserted and claimed control over the legal
title to the Property, is a de facto controlling shareholder in plaintiff and is acting as a controlling
shareholder. Defendant Wong has wrongfully initiated, orchestrated, and instituted eviction
proceedings against plaintiff for his own benefit and to plaintiff's financial and business detriment,
all of which breached and breaches his duty of loyalty owed to the plaintiff. Such action constitutes
constructive fraud. Such actions unless enjoined will irreparably harm plaintiff.
THIRD CAUSE OF ACTION
[Quiet Title]
6. Plaintiff incorporates and realleges by this reference the foregoing allegations.
7. The named defendants are, to the best of plaintiff's knowledge, the only persons/entities
with any putative claim of interest in the subject real property.
8. Plaintiff seeks to quiet title to said property by an order directing the conveyance of all
legal and beneficial title into plaintiffs name only, free of any trust, and divesting defendants of any
interest in the Property.
FOURTH CAUSE OF ACTION
[Declaratory Relief]
9. Plaintiff realleges and incorporates herein by reference the paragraphs set forth above.
VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
-3-© Oo
~ ed
10. An actual controversy exists between plaintiff and defendants regarding the Property.
Plaintiff seeks declaratory relief of the respective rights and interests of the parties to this litigation.
Specifically, plaintiff seeks a determination of plaintiff's rights in the Property and that defendants’
actions are violative of plaintiff's rights, and further seeks an order divesting defendants of any
interest in the property and vesting all interest, legal and beneficial, in plaintiff.
11. Plaintiff seeks declaratory relief that defendants' claim of any title to or interest in the
Property is forfeited by defendants’ malfeasance and breach of fiduciary duties.
12. Alternatively, plaintiff seeks declaratory relief that defendants’ interest in the Property is
only as a fiduciary strictly for the benefit of plaintiff, that defendants have no beneficial interest in
said property, including any possessory interest, and that defendants are estopped from claiming any
beneficial interest in the property, including any possessory interest.
FIFH CAUSE OF ACTION
[Injunctive Relief]
13. Plaintiff realleges and incorporates herein by reference the paragraphs set forth above.
14. Plaintiff seeks injunctive relief that defendants be enjoined from interfering with
plaintiff's beneficial interest in the Property, by means of eviction or threats thereof, and
demanding money for rent or use of said property.
WHEREFORE, Plaintiff prays judgment against defendants as follows:
1. That plaintiff be declared the sole legal and beneficial owner of the Property and that
defendants be declared without any interest in said property;
2. That defendants be enjoined from interfering with plaintiff's interest in the Property;
3. That all interest in and title to the Property be vested in plaintiff:
4. That defendant Wong has violated his fiduciary duties and thereby forfeited all interest in
the Property and be ordered jointly with defendant WWJW FAMILY LLC to deed said property to
plaintiff;
‘VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
-4-1
2
3
4
10
11
27
28
>,
/
5. that defendants are estopped from claiming any beneficial interest in the Property and that
constructive trust be placed on the Property reserving all beneficial interest in the Property to
plaintiff,
6. That plaintiff be awarded the costs of suit; and
7. For such other relief as may be just and appropriate.
Dated: March 4, 2019 FREAR STEPHEN SCHMID
JOHN KAO LAW OFFICE
hg
lohy K.
ttprpeys for Plaintiff TON KIANG
TAURANT, INC.
VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
-5-SL?
of,
oO
VERIFICATION
I, Richard Wong, declare:
Jam the president and chief executive officer of Ton Kiang Restaurant, Inc., the plaintiff in
the above-entitled action, and am authorized to make this verification on its behalf. I have read the
foregoing and know the contents thereof, and I certify that the same is true of my knowledge, except
as to those matters which are therein stated upon information and belief, and as to those matters
I believe it to be true.
I declare under penalty of perjury that the foregoing is true and correct. Executed on March 4
2019 at San Francisco, California.
ke
RICHABD YIQNG
VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE,
DECLARATORY RELIEF, AND INJUNCTIVE RELIEF
-6-
Preview
Ryan K. J. Mau — SBN 146221 LAW OFFICE OF RYAN MAU, PC 333 San Tel: Fax: Bush Street, 21“ Floor Francisco, CA 94104 (415) 296-7700 (415) 296-7600 Email: ryan@rmaulaw.com Atto: mmeys for Defendants, WILLIAM WONG and WWJW FAMILY LLC TON KIANG RESTAURANT, INC. vs. WILLIAM WONG, WWIJW FAMILY LLC, a California Limited Liability Company, and ELECTRONICALLY FILED Superior Court of Catifornia, County of San Francisco 04/11/2019 Clerk of the Court BY: EDWARD SANTOS Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO — UNLIMITED CIVIL JURISDICTION Plaintiff, DOES | - 10, inclusive, Defendants. Ne Case No. CGC-19-574262 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINT Hearing Date: May 10, 2019 Time: 9:30 a.m. Department: 501 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Defendants WILLIAM WONG and WWJW FAMILY LLC hereby move for and request, pursuant to California Evidence Code §§452 (d) and 453, that judicial notice is taken of the following records in the matter of Ton Kiang Restaurant, Inc. v. William Wong, WWJW Family LLC, a California Limited Liability Company, et al.: dt 1. Plaintiff's Complaint filed on March 4, 2019 California Evidence Code §452 (d) states in pertinent part: Records of (1) any court of this state or (2) any court of record of the United States or any state of the United States. DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINT27 28 California Evidence Code §453 states: The trial court shall take judicial notice of any matter specified in section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Here, Record No. 1, of which judicial notice is requested, is part of the Court’s file in the matter of Ton Kiang Restaurant, Inc. v. William Wong, WWJW Family LLC, a California Limited Liability Company, et al., San Francisco Superior Court Case No. CGC-19-574262. The matters which Defendants WILLIAM WONG and WWJW FAMILY LLC request judicial notice of are matters well within that type of matters which courts take judicial notice. The facts for which Judicial Notice are requested are not in dispute. Dated: April 11,2019 LAW OFFICE OF RYAN MAU, PC By: __/s/ Ryan K.J. Mau Ryan K. J. Mau Attorneys for Defendants WILLIAM WONG and WWJW FAMILY LLC DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEMURRER TO COMPLAINTRECORD NO. 1—PLAINTIFF’S COMPLAINT (COURTESY COPY)cy FREAR STEPHEN SCHMID (CSB #96089) ATTORNEY AT LAW 7585 Valley Ford Road Petaluma, CA 94952 Telephone: (415) 788-5957 JOHN K. KAO (CSB #68346) JOHN KAO LAW OFFICE Russ Building, Suite 1026 235 Montgomery Street San Francisco, CA 94104 Telephone: (415) 362-9390 Facsimile: (415) 362-9398 Email: JKao@Kaolaw.com | Attorneys for Plaintiff TON KIANG RESTAURANT, INC. SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRAGISCO, 9-57 UNLIMITED CIVIL JURISDICTION TON KIANG RESTAURANT, INC. Plaintiff, vs. WILLIAM WONG, WWJW FAMILY LLC, a California Limited Liability Company, and DOES 1-10, inclusive, Defendants. 4262 No. VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF Comes now plaintiff Ton Kiang Restaurant, Inc. ("Ton Kiang") and alleges as follows: FIRST CAUSE OF ACTION [Breach of Trust] VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF iii| WWJW FAMILY LLC. As between them, the allegations herein against either or both apply to both where appropriate. Defendants Does 1-10 are responsible for and liable for the acts herein alleged i and are sued by such fictitious names and will be named herein by their true names and identities I} when they are discovered. Ching Su Wong. The funds were provided in trust for, conditioned on, and subject to the family | beneficial interest of the establishment and operation of a restaurant business conducted by plaintiff jj at said property. The Property was only placed in the name of defendants and their predecessors in ij interest for the convenience and benefit of plaintiff. Defendants and their predecessors in interest hu any 7 et 1. Plaintiffis a closely held California corporation doing business as a restaurant at 5821 Geary Boulevard in the City and County of San Francisco, State of California and is the true owner off real property (hereinafter “Property’”) at that address in San Francisco, California. The plaintiff is a family corporation, made up completely of the parents and their children. Defendant WWJW FAMILY LLC is the name in which naked legal title to the Property is currently vested. As set below due to his acts of and assertion of control over the naked title to the Property, defendant William Wong ("Wong") is a controlling shareholder in plaintiff. Defendant Wong is the alter ego of| 2. The Property was purchased with funds provided by the parents Chin Boon Wong and took title being fully aware of the trust imposed on the Property and that no beneficial title was attached to the bare naked legal title to the Property. Defendants therefor never acquired any beneficial interest in said property, including any possessory interest, but were to hold said property as a fiduciary for plaintiff. Defendants, to induce plaintiff's reliance, have acted consistent with the trust on the Property for numerous years, and plaintiff acted in reliance thereon to its detriment by actively building the Property out, maintaining and operating the restaurant business on the Property, such that defendants are equitably estopped from claiming any interest in the property other than as a fiduciary without any beneficial interest in the property, including any possessory interest. Defendants only obtained naked title and the claimed interest to the Property by actively concealing their hidden intent to abuse the naked title and use it to claim a beneficial title in breach of the trust and deceptively by taking advantage of the natural trust assumed and reposed between siblings, parents and children. VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF -2-c 3. On or about November 1, 2018, defendants engaged in self-dealing activity in breach of their fiduciary status for their own gain and violative of plaintiff ‘s rights in and to the Property by improperly initiating eviction proceedings against plaintiff from said property. Such self-dealing action are detrimental to plaintiff's business as an eviction would destroy the restaurant, which has been in business for over 25 years and currently employs 33 people between the kitchen and the dining room. Defendants’ action is in breach of the trust under which the property is held for plaintiff's benefit. Such action constitutes constructive fraud on plaintiff. Such action unless enjoined will irreparably harm plaintiff. SECOND CAUSE OF ACTION [Breach of Fiduciary Duty Against Defendant Wong] 4, Plaintiff incorporates and realleges by this reference the foregoing paragraphs. 5. Defendant Wong, by virtue of his wrongfully asserted and claimed control over the legal title to the Property, is a de facto controlling shareholder in plaintiff and is acting as a controlling shareholder. Defendant Wong has wrongfully initiated, orchestrated, and instituted eviction proceedings against plaintiff for his own benefit and to plaintiff's financial and business detriment, all of which breached and breaches his duty of loyalty owed to the plaintiff. Such action constitutes constructive fraud. Such actions unless enjoined will irreparably harm plaintiff. THIRD CAUSE OF ACTION [Quiet Title] 6. Plaintiff incorporates and realleges by this reference the foregoing allegations. 7. The named defendants are, to the best of plaintiff's knowledge, the only persons/entities with any putative claim of interest in the subject real property. 8. Plaintiff seeks to quiet title to said property by an order directing the conveyance of all legal and beneficial title into plaintiffs name only, free of any trust, and divesting defendants of any interest in the Property. FOURTH CAUSE OF ACTION [Declaratory Relief] 9. Plaintiff realleges and incorporates herein by reference the paragraphs set forth above. VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF -3-© Oo ~ ed 10. An actual controversy exists between plaintiff and defendants regarding the Property. Plaintiff seeks declaratory relief of the respective rights and interests of the parties to this litigation. Specifically, plaintiff seeks a determination of plaintiff's rights in the Property and that defendants’ actions are violative of plaintiff's rights, and further seeks an order divesting defendants of any interest in the property and vesting all interest, legal and beneficial, in plaintiff. 11. Plaintiff seeks declaratory relief that defendants' claim of any title to or interest in the Property is forfeited by defendants’ malfeasance and breach of fiduciary duties. 12. Alternatively, plaintiff seeks declaratory relief that defendants’ interest in the Property is only as a fiduciary strictly for the benefit of plaintiff, that defendants have no beneficial interest in said property, including any possessory interest, and that defendants are estopped from claiming any beneficial interest in the property, including any possessory interest. FIFH CAUSE OF ACTION [Injunctive Relief] 13. Plaintiff realleges and incorporates herein by reference the paragraphs set forth above. 14. Plaintiff seeks injunctive relief that defendants be enjoined from interfering with plaintiff's beneficial interest in the Property, by means of eviction or threats thereof, and demanding money for rent or use of said property. WHEREFORE, Plaintiff prays judgment against defendants as follows: 1. That plaintiff be declared the sole legal and beneficial owner of the Property and that defendants be declared without any interest in said property; 2. That defendants be enjoined from interfering with plaintiff's interest in the Property; 3. That all interest in and title to the Property be vested in plaintiff: 4. That defendant Wong has violated his fiduciary duties and thereby forfeited all interest in the Property and be ordered jointly with defendant WWJW FAMILY LLC to deed said property to plaintiff; ‘VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF -4-1 2 3 4 10 11 27 28 >, / 5. that defendants are estopped from claiming any beneficial interest in the Property and that constructive trust be placed on the Property reserving all beneficial interest in the Property to plaintiff, 6. That plaintiff be awarded the costs of suit; and 7. For such other relief as may be just and appropriate. Dated: March 4, 2019 FREAR STEPHEN SCHMID JOHN KAO LAW OFFICE hg lohy K. ttprpeys for Plaintiff TON KIANG TAURANT, INC. VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF -5-SL? of, oO VERIFICATION I, Richard Wong, declare: Jam the president and chief executive officer of Ton Kiang Restaurant, Inc., the plaintiff in the above-entitled action, and am authorized to make this verification on its behalf. I have read the foregoing and know the contents thereof, and I certify that the same is true of my knowledge, except as to those matters which are therein stated upon information and belief, and as to those matters I believe it to be true. I declare under penalty of perjury that the foregoing is true and correct. Executed on March 4 2019 at San Francisco, California. ke RICHABD YIQNG VERIFIED COMPLAINT FOR BREACH OF TRUST, BREACH OF FIDUCIARY DUTY, QUIET TITLE, DECLARATORY RELIEF, AND INJUNCTIVE RELIEF -6-