Preview
1 Gary M. Kaplan (State Bar No. 155530)
gkaplan@fbm.com
2 Farella Braun + Martel LLP ELECTRONICALLY
235 Montgomery Street, 17th Floor
3 San Francisco, California 94104 F I L E D
Superior Court of California,
Telephone: (415) 954-4400 County of San Francisco
4 Facsimile: (415) 954-4480
08/08/2022
Clerk of the Court
5 Attorneys for Plaintiffs BY: ANGELICA SUNGA
CRYSTAL LEI and BRYANT FU Deputy Clerk
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 CRYSTAL LEI and BRYANT FU, Case No. CGC-17-556769
12 Plaintiffs, PLAINTIFFS’ REPLY IN SUPPORT OF
MOTION FOR RIGHT TO ATTACH
13 vs. ORDERS AND ISSUANCE OF WRITS OF
ATTACHMENT AND PROTECTIVE
14 TINA YAN, individually and as personal ORDERS
representative of the estate of CHEUK TIN
15 YAN, deceased; THAI MING CHIU; Date: August 15, 2022
KAMAN LIU; and DOES 1-20 inclusive, Time: 9:30 am
16 Dept.: 501
Defendants. The Hon. Charles F. Haines
17
[HEARING TO BE CONDUCTED VIA
18 ZOOM VIDEO CONFERENCE
PURSUANT TO COURT DIRECTION]
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Farella Braun + Martel LLP
41312\14958442.2
235 Montgomery Street, 17th Floor
REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS
San Francisco, California 94104
(415) 954-4400
AND PROTECTIVE ORDERS - Case No. CGC-17-556769
1 Plaintiffs’ instant Motion demonstrates that the Court should issue right to attach orders
2 (followed by writs of attachment) against all three defendants, as well as temporary protective
3 orders, to secure the subject property of those writs. Defendants’ Opposition to the requests for
4 attachment orders and writs rests on two conclusory arguments, both of which fail upon
5 inspection. Defendants do not even attempt to oppose Plaintiffs’ right to temporary protective
6 orders. Therefore, pursuant to Code of Civil Procedure section 484.090, the Court should issue
7 right to attach orders and temporary protective orders against the properties of Defendants.
8 Code of Civil Procedure section 484.090 provides that a writ of attachment “shall” be
9 issued if four necessary requirements are met. These four requirements are (1) the claim upon
10 which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has
11 established the probable validity of the claim upon which the attachment is based; (3) the
12 attachment is not sought for a purpose other than the recovery on the claim upon which the
13 attachment is based; and (4) the amount to be secured by the attachment is greater than zero.
14 Plaintiffs’ Motion establishes that all four prongs are met. Defendants’ Opposition only
15 challenges the first two prongs, in a combined three sentences of argument. Defendants do not
16 support this argument with a factual affidavit, as required by Code of Civil Procedure section
17 484.060(a).
18 As to the first prong (the claim is one upon which attachment may be issued), and as
19 explained more fully in Plaintiffs’ Motion, Code of Civil Procedure 483.010(a) sets forth four
20 requirements, which Plaintiffs’ Motion established. Defendants’ Opposition only challenges one
21 of those requirements: that the fraudulent transfer must arise from Defendants’ business conduct.
22 Defendants not only offer no supporting affidavit, but hardly any reasoning, stating: “The FAC
23 merely alleged that properties were transferred to the defendants to defraud plaintiffs as creditors.”
24 But Plaintiffs’ Motion explains how Defendants carried out their fraud through the use of
25 corporate entities, and indeed corporate entities created solely for the purpose of this fraud. See
26 Memorandum of Points and Authorities at 8:5-9:17. There is no requirement in Section
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Farella Braun + Martel LLP 2 41312\14958442.2
235 Montgomery Street, 17th Floor
REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS
San Francisco, California 94104
(415) 954-4400
AND PROTECTIVE ORDERS - Case No. CGC-17-556769’
1 483.010(a) or elsewhere that this contention must be made in the operative complaint.1
2 Defendants do not deny that they were managing members of 547 23rd Avenue LLC and 547
3 Investments LLC, nor that they operated and directed the fraudulent transfer of the Subject
4 Property. It is a fact that these LLCs were operated to defraud Yan’s creditors and fraudulently
5 transfer the Subject Property, which was proven against all Defendants in the Li v. Chiu action.
6 As the fraudulent transfer of the Subject Property was carried out by Defendants’ use of those two
7 LLCs (RJN Ex. 4 at 3), it is clear that Plaintiffs’ fraudulent transfer claim arises from Defendants’
8 fraudulent business conduct.
9 As to the second prong of Code of Civil Procedure section 484.090(a), Defendants contend
10 that “plaintiff has not established the probable validity of the claims as required under Section
11 484.090(a)(2) as evidenced by the Court’s denial of plaintiffs’ motion for summary adjudication.”
12 There are two major problems with Defendants’ reasoning. First and most importantly, Plaintiffs’
13 motion for summary adjudication was denied on technical grounds, not on the merits. The denial
14 simply has no bearing on “the probable validity of the claims.” Second, the standard Plaintiffs
15 must meet under section 484.090(a) (“probable validity”) is lower than the standard on summary
16 adjudication (“no genuine dispute of material fact”). Thus, an order denying summary
17 adjudication would not resolve the probable validity of Plaintiffs’ claims.
18 Both courts and juries have already established that Defendants fraudulently transferred the
19 Subject Property to defraud Yan’s creditors, with those findings affirmed by the Court of Appeal
20 in the Li v. Chiu action. Since Plaintiffs’ claims are based on the same operative facts proven in Li
21 v. Chiu, these facts thus clearly establish that Plaintiffs’ claims qualify as having “probable
22 validity” within the meaning of Code of Civil Procedure section 484.090(a)(2).
23 Defendants do not deny their history of fraudulently transferring assets and causing
24 significant harm to Plaintiffs, which has been established in prior proceedings. Defendants’ limp
25 effort to resist issuance of right to attach orders and writs of attachment is unpersuasive, and is not
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27 1
In any event, paragraph 12 of the First Amended Complaint explains that the fraudulent transfer
28 was effectuated through the two LLCs.
Farella Braun + Martel LLP 3 41312\14958442.2
235 Montgomery Street, 17th Floor
REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS
San Francisco, California 94104
(415) 954-4400
AND PROTECTIVE ORDERS - Case No. CGC-17-556769’
1 even supported by an affidavit, as required. Plaintiffs are thus entitled to the requested writs of
2 attachment, amounting to $1,629,801.28.
3 Nor do Defendants even attempt to dispute Plaintiffs’ contention, supported in their
4 Motion and accompanying papers, that Plaintiffs will suffer irreparable harm without protective
5 orders preventing use or transfer of Defendants’ assets.
6 Based on the foregoing, the Court should grant Plaintiffs’ Motion and enter right to attach
7 orders, protective orders and writs of attachment on the assets of Defendants, and any other order
8 the Court deems just and proper.
9
Dated: August 8, 2022 FARELLA BRAUN + MARTEL LLP
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By:
12 Gary M. Kaplan
13 Attorneys for PLAINTIFFS
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Farella Braun + Martel LLP 4 41312\14958442.2
235 Montgomery Street, 17th Floor
REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS
San Francisco, California 94104
(415) 954-4400
AND PROTECTIVE ORDERS - Case No. CGC-17-556769’
1 PROOF OF SERVICE
2 Bryant Fu and Crystal Lei v. Tina Yan, et al.
Case No. CGC-17-556769
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
4
At the time of service, I was over 18 years of age and not a party to this action. I am
5 employed in the County of San Francisco, State of California. My business address is 235
Montgomery Street, 17th Floor, San Francisco, CA 94104.
6
On August 8, 2022, I served true copies of the following document(s) described as
7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR RIGHT TO ATTACH ORDERS
AND ISSUANCE OF WRITS OF ATTACHMENT AND PROTECTIVE ORDERS on the
8 interested parties in this action as follows:
9 BY ELECTRONIC SERVICE: I electronically served the documents described above via
File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File &
10 ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
establishing the case website and authorizing service of documents.
11
Counsel for Stella Chen: Counsel for Thai Ming Chiu, Kaman Liu and
12 Tina Yan:
Charlie W. Yu
The Essential Law Group, PC Mark Lapham
13
Counsel for Thai Ming Chiu and Kaman Liu:
14
Demas Yan
15
BY E-MAIL OR ELECTRONIC TRANSMISSION: I further caused a copy of the
16 documents to be sent from e-mail address jwingard@fbm.com to the persons at the e-mail
addresses listed below. I did not receive, within a reasonable time after the transmission, any
17 electronic message or other indication that the transmission was unsuccessful.
18
Attorney for Tina Yan, Thai Ming Chiu, Ting Cham Poon
19 Kaman Liu, and Legal Recovery, LLC: 331A 28th Avenue
San Francisco, CA 94121
William Leeds Disston
20 E-Mail: peterpoon.sf@gmail.com
409 13th Street, Fl 9
21 Oakland, CA 94612
E-Mail: casdiss@yahoo.com
22
I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct.
24 Executed on August 8, 2022, at Concord, California.
25
26
Janetta Wingard
27
28
Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104
(415) 954-4400
PROOF OF SERVICE - Case No. CGC-17-556769
Preview
1 Gary M. Kaplan (State Bar No. 155530) gkaplan@fbm.com 2 Farella Braun + Martel LLP ELECTRONICALLY 235 Montgomery Street, 17th Floor 3 San Francisco, California 94104 F I L E D Superior Court of California, Telephone: (415) 954-4400 County of San Francisco 4 Facsimile: (415) 954-4480 08/08/2022 Clerk of the Court 5 Attorneys for Plaintiffs BY: ANGELICA SUNGA CRYSTAL LEI and BRYANT FU Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CRYSTAL LEI and BRYANT FU, Case No. CGC-17-556769 12 Plaintiffs, PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR RIGHT TO ATTACH 13 vs. ORDERS AND ISSUANCE OF WRITS OF ATTACHMENT AND PROTECTIVE 14 TINA YAN, individually and as personal ORDERS representative of the estate of CHEUK TIN 15 YAN, deceased; THAI MING CHIU; Date: August 15, 2022 KAMAN LIU; and DOES 1-20 inclusive, Time: 9:30 am 16 Dept.: 501 Defendants. The Hon. Charles F. Haines 17 [HEARING TO BE CONDUCTED VIA 18 ZOOM VIDEO CONFERENCE PURSUANT TO COURT DIRECTION] 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 41312\14958442.2 235 Montgomery Street, 17th Floor REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS San Francisco, California 94104 (415) 954-4400 AND PROTECTIVE ORDERS - Case No. CGC-17-556769 1 Plaintiffs’ instant Motion demonstrates that the Court should issue right to attach orders 2 (followed by writs of attachment) against all three defendants, as well as temporary protective 3 orders, to secure the subject property of those writs. Defendants’ Opposition to the requests for 4 attachment orders and writs rests on two conclusory arguments, both of which fail upon 5 inspection. Defendants do not even attempt to oppose Plaintiffs’ right to temporary protective 6 orders. Therefore, pursuant to Code of Civil Procedure section 484.090, the Court should issue 7 right to attach orders and temporary protective orders against the properties of Defendants. 8 Code of Civil Procedure section 484.090 provides that a writ of attachment “shall” be 9 issued if four necessary requirements are met. These four requirements are (1) the claim upon 10 which the attachment is based is one upon which an attachment may be issued; (2) the plaintiff has 11 established the probable validity of the claim upon which the attachment is based; (3) the 12 attachment is not sought for a purpose other than the recovery on the claim upon which the 13 attachment is based; and (4) the amount to be secured by the attachment is greater than zero. 14 Plaintiffs’ Motion establishes that all four prongs are met. Defendants’ Opposition only 15 challenges the first two prongs, in a combined three sentences of argument. Defendants do not 16 support this argument with a factual affidavit, as required by Code of Civil Procedure section 17 484.060(a). 18 As to the first prong (the claim is one upon which attachment may be issued), and as 19 explained more fully in Plaintiffs’ Motion, Code of Civil Procedure 483.010(a) sets forth four 20 requirements, which Plaintiffs’ Motion established. Defendants’ Opposition only challenges one 21 of those requirements: that the fraudulent transfer must arise from Defendants’ business conduct. 22 Defendants not only offer no supporting affidavit, but hardly any reasoning, stating: “The FAC 23 merely alleged that properties were transferred to the defendants to defraud plaintiffs as creditors.” 24 But Plaintiffs’ Motion explains how Defendants carried out their fraud through the use of 25 corporate entities, and indeed corporate entities created solely for the purpose of this fraud. See 26 Memorandum of Points and Authorities at 8:5-9:17. There is no requirement in Section 27 28 Farella Braun + Martel LLP 2 41312\14958442.2 235 Montgomery Street, 17th Floor REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS San Francisco, California 94104 (415) 954-4400 AND PROTECTIVE ORDERS - Case No. CGC-17-556769’ 1 483.010(a) or elsewhere that this contention must be made in the operative complaint.1 2 Defendants do not deny that they were managing members of 547 23rd Avenue LLC and 547 3 Investments LLC, nor that they operated and directed the fraudulent transfer of the Subject 4 Property. It is a fact that these LLCs were operated to defraud Yan’s creditors and fraudulently 5 transfer the Subject Property, which was proven against all Defendants in the Li v. Chiu action. 6 As the fraudulent transfer of the Subject Property was carried out by Defendants’ use of those two 7 LLCs (RJN Ex. 4 at 3), it is clear that Plaintiffs’ fraudulent transfer claim arises from Defendants’ 8 fraudulent business conduct. 9 As to the second prong of Code of Civil Procedure section 484.090(a), Defendants contend 10 that “plaintiff has not established the probable validity of the claims as required under Section 11 484.090(a)(2) as evidenced by the Court’s denial of plaintiffs’ motion for summary adjudication.” 12 There are two major problems with Defendants’ reasoning. First and most importantly, Plaintiffs’ 13 motion for summary adjudication was denied on technical grounds, not on the merits. The denial 14 simply has no bearing on “the probable validity of the claims.” Second, the standard Plaintiffs 15 must meet under section 484.090(a) (“probable validity”) is lower than the standard on summary 16 adjudication (“no genuine dispute of material fact”). Thus, an order denying summary 17 adjudication would not resolve the probable validity of Plaintiffs’ claims. 18 Both courts and juries have already established that Defendants fraudulently transferred the 19 Subject Property to defraud Yan’s creditors, with those findings affirmed by the Court of Appeal 20 in the Li v. Chiu action. Since Plaintiffs’ claims are based on the same operative facts proven in Li 21 v. Chiu, these facts thus clearly establish that Plaintiffs’ claims qualify as having “probable 22 validity” within the meaning of Code of Civil Procedure section 484.090(a)(2). 23 Defendants do not deny their history of fraudulently transferring assets and causing 24 significant harm to Plaintiffs, which has been established in prior proceedings. Defendants’ limp 25 effort to resist issuance of right to attach orders and writs of attachment is unpersuasive, and is not 26 27 1 In any event, paragraph 12 of the First Amended Complaint explains that the fraudulent transfer 28 was effectuated through the two LLCs. Farella Braun + Martel LLP 3 41312\14958442.2 235 Montgomery Street, 17th Floor REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS San Francisco, California 94104 (415) 954-4400 AND PROTECTIVE ORDERS - Case No. CGC-17-556769’ 1 even supported by an affidavit, as required. Plaintiffs are thus entitled to the requested writs of 2 attachment, amounting to $1,629,801.28. 3 Nor do Defendants even attempt to dispute Plaintiffs’ contention, supported in their 4 Motion and accompanying papers, that Plaintiffs will suffer irreparable harm without protective 5 orders preventing use or transfer of Defendants’ assets. 6 Based on the foregoing, the Court should grant Plaintiffs’ Motion and enter right to attach 7 orders, protective orders and writs of attachment on the assets of Defendants, and any other order 8 the Court deems just and proper. 9 Dated: August 8, 2022 FARELLA BRAUN + MARTEL LLP 10 11 By: 12 Gary M. Kaplan 13 Attorneys for PLAINTIFFS 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 4 41312\14958442.2 235 Montgomery Street, 17th Floor REPLY ISO MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRIT OF ATTACHMENTS San Francisco, California 94104 (415) 954-4400 AND PROTECTIVE ORDERS - Case No. CGC-17-556769’ 1 PROOF OF SERVICE 2 Bryant Fu and Crystal Lei v. Tina Yan, et al. Case No. CGC-17-556769 3 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 4 At the time of service, I was over 18 years of age and not a party to this action. I am 5 employed in the County of San Francisco, State of California. My business address is 235 Montgomery Street, 17th Floor, San Francisco, CA 94104. 6 On August 8, 2022, I served true copies of the following document(s) described as 7 PLAINTIFFS’ REPLY IN SUPPORT OF MOTION FOR RIGHT TO ATTACH ORDERS AND ISSUANCE OF WRITS OF ATTACHMENT AND PROTECTIVE ORDERS on the 8 interested parties in this action as follows: 9 BY ELECTRONIC SERVICE: I electronically served the documents described above via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & 10 ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order establishing the case website and authorizing service of documents. 11 Counsel for Stella Chen: Counsel for Thai Ming Chiu, Kaman Liu and 12 Tina Yan: Charlie W. Yu The Essential Law Group, PC Mark Lapham 13 Counsel for Thai Ming Chiu and Kaman Liu: 14 Demas Yan 15 BY E-MAIL OR ELECTRONIC TRANSMISSION: I further caused a copy of the 16 documents to be sent from e-mail address jwingard@fbm.com to the persons at the e-mail addresses listed below. I did not receive, within a reasonable time after the transmission, any 17 electronic message or other indication that the transmission was unsuccessful. 18 Attorney for Tina Yan, Thai Ming Chiu, Ting Cham Poon 19 Kaman Liu, and Legal Recovery, LLC: 331A 28th Avenue San Francisco, CA 94121 William Leeds Disston 20 E-Mail: peterpoon.sf@gmail.com 409 13th Street, Fl 9 21 Oakland, CA 94612 E-Mail: casdiss@yahoo.com 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 Executed on August 8, 2022, at Concord, California. 25 26 Janetta Wingard 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 (415) 954-4400 PROOF OF SERVICE - Case No. CGC-17-556769