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
03/11/2022
Clerk of the Court
5 Attorneys for BY: SANDRA SCHIRO
Deputy Clerk
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
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11 CRYSTAL LEI, an individual, and Case No. CGC-17-556769
BRYANT FU, an individual,
12 PLAINTIFFS’ MOTION FOR LEAVE TO
Plaintiffs, FILE FIRST AMENDED COMPLAINT
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vs. (CONCURRENTLY FILED:
14 DECLARATION OF BRYANT FU IN
TINA YAN, individually and as personal SUPPORT OF MOTION)
15 representative of the estate of CHEUK TIN
YAN, deceased; THAI MING CHIU, an Date: April 7, 2022
16 individual; KAMAN LIU, an individual; and Time: 9:30 am
DOES 1-20 inclusive, Dept.: 501
17 The Hon. Charles F. Haines
Defendants.
18 [HEARING TO BE CONDUCTED VIA
ZOOM VIDEO CONFERENCE
19 PURSUANT TO COURT DIRECTION]
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104
41312\14666190.4
(415) 954-4400
PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769
1 NOTICE OF MOTION AND MOTION
2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on April 7, 2022 at 9:30 a.m., or as soon thereafter as the
4 matter may be heard in Department 501 of the above-titled court, located at 400 McAllister Street,
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San Francisco, California, plaintiffs Bryant Fu (“Fu”) and Crystal Lei (“Lei”) (collectively
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“Plaintiffs”) will and hereby do move the Court for leave to file their First Amended Complaint
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pursuant to California Code of Civil Procedure Section 473(a)(1) (the “Motion”).
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Pursuant to Court direction, such hearing will be conducted by Zoom video conference,
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10 which can be accessed as follows:
11 https://sfsuperiorcourt-org.zoom.us/webinar/register/WN_GddZiBrxR62vLWy46L-wjQ.
12 If unable to join using the link above, the hearing may be joined by telephone by dialing:
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415-762-9988 and entering Meeting ID: 836 2280 0051 and Password: 613303.
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This Motion will be based on this notice of motion and motion, the accompanying
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memorandum of points and authorities, the concurrently submitted declaration of Fu (“Fu Decl.”),
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17 all pleadings and documents filed in this matter, and upon such other oral and documentary
18 evidence and arguments of counsel at the hearing as the Court may wish to consider.
19 This motion is filed after Plaintiffs' counsel met and conferred with William Leeds Disston,
20 attorney for Transferee Defendants, regarding the scheduling of the hearing on this Motion
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pursuant to Local Rule 8.2A.(2)(a).
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Respectfully submitted,
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Dated: March 11, 2022 FARELLA BRAUN + MARTEL LLP
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25
By:
26 Gary M. Kaplan
27 Attorneys for Plaintiffs
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104 2 41312\14666190.4
(415) 954-4400
PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs seek leave to file the First Amended Complaint (“FAC”), in substantially the form
4 attached to the Fu Decl. as Exhibit A, pursuant to California Code of Civil Procedure (“CCP”)
5 Section 473(a)(1). No trial date has been set in the matter, and no prejudice will result from the
6 proposed amendment, which is primarily intended to clarify allegations in the already plead causes
7 of action, and appropriately amend the relief sought thereby. Because granting the requested leave
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will not cause prejudice to any party (while denial of such leave will unfairly prejudice Plaintiffs),
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the Motion should be granted.
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II. FACTUAL AND PROCEDURAL HISTORY
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On January 31, 2017, Plaintiffs filed their initial Complaint in the instant action for
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fraudulent transfer and conspiracy to defraud.
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On April 28, 2017, defendant Kaman Liu (“Liu”) filed an Answer to the Complaint and also
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filed a cross-complaint virtually identical to the cross-complaint filed in Case No. CGC-16-553702
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in this Court. Liu’s cross-complaint in this case was subsequently abated pursuant to this Court’s
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order entered March 24, 2021.
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18 On May 8, 2017, Tony Fu, a cross-defendant on Liu’s cross-complaint, filed a notice of stay
19 of proceedings based on his pending bankruptcy case.
20 On June 12, 2017, defendant Thai Ming Chiu (“Chiu”) filed an Answer to the Complaint
21 and also filed a cross-complaint on the same basis as Liu. A motion is set for hearing on March 9,
22 2022 in this case to sever Chiu’s cross-complaint and consolidate it with a pending action before
23 this Court involving the same facts and claims, styled Legal Recovery LLC v. Crystal Lei, et al.,
24 Case no. CGC-19-579664.
25 As the case has developed, Plaintiffs have determined that amendment to the complaint is
26 necessary. Pursuant to this Motion, Plaintiffs seek leave from the Court to amend the complaint.
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104 3 41312\14666190.4
(415) 954-4400
PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769
1 III. LEGAL STANDARD
2 CCP Section 473(a)(1) provides in relevant part: "[t]he court may... in its discretion after
3 notice to the adverse party, allow, under any terms as may be just, an amendment to any pleading
4 or proceeding in other particulars . . . ." Similarly, CCP Section 576 provides in pertinent part: "[a]ny
5 judge, at any time before or after the commencement of trial, in the furtherance of justice, and upon
6 such terms as may be proper, may allow the amendment of any pleading . . . ."
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These statutory provisions giving courts the power to permit amendments in furtherance of
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justice have received a very liberal interpretation and application. Atkinson v. Elk Corp. (2003) 109
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Cal.App.4th 739, 760. Trial courts liberally permit such amendments, at any stage of the
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proceeding, due to the “fundamental policy that case should be decided on their merits.” Hirsa v.
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Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 489. It is judicial policy to resolve all disputes
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between the parties on their merits, and to allow amendment of the pleadings to put all such disputes
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at issue at the time of trial. Id. “There is a strong policy in favor of liberal allowance of
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amendments.” Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 296. If the granting of a timely
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16 motion for leave to amend “will not prejudice the opposing party, it is error to refuse permission to
17 amend, and where the refusal also results in a party being deprived of the right to assert a meritorious
18 cause of action[;] it is not only error but an abuse of discretion.” Morgan v. Super. Ct. (1959) 172
19 Cal.App.2d 527, 530 (finding the trial court abused its discretion in denying a motion for leave to
20 file an amended complaint that was filed before a trial date has been set).
21 IV. LEGAL ARGUMENT
22 The proposed FAC is based on the same facts plead in the initial Complaint regarding
23 judgment debtor Demas Yan’s (“Yan”) fraudulent transfer of property to Defendants, and their
24 related conspiracy with Yan. As reflected by the “redlined” version attached as Exhibit B to the Fu
25 Decl., the proposed amendment makes non-substantive corrections and clarifications of the
26 allegations in the initial Complaint, and appropriately amends the relief sought thereby.
27 Plaintiffs would be prejudiced if they are not allowed to amend the Complaint, including by
28 being prevented from appropriately clarifying their allegations and being deprived of the ability to
Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104 4 41312\14666190.4
(415) 954-4400
PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769
1 seek appropriate relief. Conversely, Defendants would not be prejudiced by such amendment, as
2 the substantive set of facts remains unchanged, no trial date has been set, and the proposed
3 amendment does not raise any new or substantially different issues. Under such circumstances, a
4 motion to amend even during a trial should be granted. Sachs, Inc. v. City of Oceanside (1984) 151
5 Cal.App.3d 315, 321-332; Hirsa v. Superior Court (Vickers) 118 Cal.App.3d 486-490; Clarkv.
6 Pullins (1959) 171 Cal.App.2d. 703, 711-712. It is an abuse of discretion to deny leave to amend
7 where the opposing party was not misled or prejudiced by the amendment. Berman v. Bromberg
8 (1997) 56 Cal.App.4th 936, 945; Glaser v. Meyers (1982) 137 Cal.App.3d 770-777. Defendants
9 have also indicated that
10 V. CONCLUSION
11 Based on the foregoing, Plaintiffs respectfully request the Court grant the motion allowing
12 Plaintiffs leave to file their FAC.
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Dated: March 11, 2022 FARELLA BRAUN + MARTEL LLP
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15 By:
16 Gary M. Kaplan
17 Attorneys for Plaintiffs
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104 5 41312\14666190.4
(415) 954-4400
PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769
1 PROOF OF SERVICE
2 Crystal Lei and Bryant Fu v. Tina Yan, et al.
CGC-17-556769
3
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
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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.
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On March 11, 2022, I served true copies of the following document(s) described as
7 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT on the
interested parties in this action as follows:
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SEE ATTACHED SERVICE LIST
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BY ELECTRONIC SERVICE: I electronically served the document(s) described above
10 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the
File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order
11 establishing the case website and authorizing service of documents.
12 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on March 11, 2022, at Rodeo, California.
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16 Grant D. Groettum
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104
(415) 954-4400
1 SERVICE LIST
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3 William Leeds Disston Charlie Yu
409 13th St Fl 9 548 Market St Pmb 48752
4 Oakland, CA 94612 San Francisco, CA 94104
E-Mail: casdiss@yahoo.com E-Mail: cyu@essentiallawgroup.com
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Attorney for Tina Yan, Thai Ming Chiu, Attorney for Cross-Defendant
6 Kaman Liu, and Legal Recovery, LLC Stella Chen
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Ting Cham Poon
8 331A 28th Avenue
San Francisco, CA 94121
9 E-Mail: peterpoon.sf@gmail.com
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Farella Braun + Martel LLP
235 Montgomery Street, 17th Floor
San Francisco, California 94104
(415) 954-4400
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 03/11/2022 Clerk of the Court 5 Attorneys for BY: SANDRA SCHIRO Deputy Clerk 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 CRYSTAL LEI, an individual, and Case No. CGC-17-556769 BRYANT FU, an individual, 12 PLAINTIFFS’ MOTION FOR LEAVE TO Plaintiffs, FILE FIRST AMENDED COMPLAINT 13 vs. (CONCURRENTLY FILED: 14 DECLARATION OF BRYANT FU IN TINA YAN, individually and as personal SUPPORT OF MOTION) 15 representative of the estate of CHEUK TIN YAN, deceased; THAI MING CHIU, an Date: April 7, 2022 16 individual; KAMAN LIU, an individual; and Time: 9:30 am DOES 1-20 inclusive, Dept.: 501 17 The Hon. Charles F. Haines Defendants. 18 [HEARING TO BE CONDUCTED VIA ZOOM VIDEO CONFERENCE 19 PURSUANT TO COURT DIRECTION] 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 41312\14666190.4 (415) 954-4400 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769 1 NOTICE OF MOTION AND MOTION 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on April 7, 2022 at 9:30 a.m., or as soon thereafter as the 4 matter may be heard in Department 501 of the above-titled court, located at 400 McAllister Street, 5 San Francisco, California, plaintiffs Bryant Fu (“Fu”) and Crystal Lei (“Lei”) (collectively 6 “Plaintiffs”) will and hereby do move the Court for leave to file their First Amended Complaint 7 pursuant to California Code of Civil Procedure Section 473(a)(1) (the “Motion”). 8 Pursuant to Court direction, such hearing will be conducted by Zoom video conference, 9 10 which can be accessed as follows: 11 https://sfsuperiorcourt-org.zoom.us/webinar/register/WN_GddZiBrxR62vLWy46L-wjQ. 12 If unable to join using the link above, the hearing may be joined by telephone by dialing: 13 415-762-9988 and entering Meeting ID: 836 2280 0051 and Password: 613303. 14 This Motion will be based on this notice of motion and motion, the accompanying 15 memorandum of points and authorities, the concurrently submitted declaration of Fu (“Fu Decl.”), 16 17 all pleadings and documents filed in this matter, and upon such other oral and documentary 18 evidence and arguments of counsel at the hearing as the Court may wish to consider. 19 This motion is filed after Plaintiffs' counsel met and conferred with William Leeds Disston, 20 attorney for Transferee Defendants, regarding the scheduling of the hearing on this Motion 21 pursuant to Local Rule 8.2A.(2)(a). 22 Respectfully submitted, 23 Dated: March 11, 2022 FARELLA BRAUN + MARTEL LLP 24 25 By: 26 Gary M. Kaplan 27 Attorneys for Plaintiffs 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 2 41312\14666190.4 (415) 954-4400 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs seek leave to file the First Amended Complaint (“FAC”), in substantially the form 4 attached to the Fu Decl. as Exhibit A, pursuant to California Code of Civil Procedure (“CCP”) 5 Section 473(a)(1). No trial date has been set in the matter, and no prejudice will result from the 6 proposed amendment, which is primarily intended to clarify allegations in the already plead causes 7 of action, and appropriately amend the relief sought thereby. Because granting the requested leave 8 will not cause prejudice to any party (while denial of such leave will unfairly prejudice Plaintiffs), 9 the Motion should be granted. 10 II. FACTUAL AND PROCEDURAL HISTORY 11 On January 31, 2017, Plaintiffs filed their initial Complaint in the instant action for 12 fraudulent transfer and conspiracy to defraud. 13 On April 28, 2017, defendant Kaman Liu (“Liu”) filed an Answer to the Complaint and also 14 filed a cross-complaint virtually identical to the cross-complaint filed in Case No. CGC-16-553702 15 in this Court. Liu’s cross-complaint in this case was subsequently abated pursuant to this Court’s 16 order entered March 24, 2021. 17 18 On May 8, 2017, Tony Fu, a cross-defendant on Liu’s cross-complaint, filed a notice of stay 19 of proceedings based on his pending bankruptcy case. 20 On June 12, 2017, defendant Thai Ming Chiu (“Chiu”) filed an Answer to the Complaint 21 and also filed a cross-complaint on the same basis as Liu. A motion is set for hearing on March 9, 22 2022 in this case to sever Chiu’s cross-complaint and consolidate it with a pending action before 23 this Court involving the same facts and claims, styled Legal Recovery LLC v. Crystal Lei, et al., 24 Case no. CGC-19-579664. 25 As the case has developed, Plaintiffs have determined that amendment to the complaint is 26 necessary. Pursuant to this Motion, Plaintiffs seek leave from the Court to amend the complaint. 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 3 41312\14666190.4 (415) 954-4400 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769 1 III. LEGAL STANDARD 2 CCP Section 473(a)(1) provides in relevant part: "[t]he court may... in its discretion after 3 notice to the adverse party, allow, under any terms as may be just, an amendment to any pleading 4 or proceeding in other particulars . . . ." Similarly, CCP Section 576 provides in pertinent part: "[a]ny 5 judge, at any time before or after the commencement of trial, in the furtherance of justice, and upon 6 such terms as may be proper, may allow the amendment of any pleading . . . ." 7 These statutory provisions giving courts the power to permit amendments in furtherance of 8 justice have received a very liberal interpretation and application. Atkinson v. Elk Corp. (2003) 109 9 Cal.App.4th 739, 760. Trial courts liberally permit such amendments, at any stage of the 10 proceeding, due to the “fundamental policy that case should be decided on their merits.” Hirsa v. 11 Superior Court (Vickers) (1981) 118 Cal.App.3d 486, 489. It is judicial policy to resolve all disputes 12 between the parties on their merits, and to allow amendment of the pleadings to put all such disputes 13 at issue at the time of trial. Id. “There is a strong policy in favor of liberal allowance of 14 amendments.” Mesler v. Bragg Mgmt. Co. (1985) 39 Cal.3d 290, 296. If the granting of a timely 15 16 motion for leave to amend “will not prejudice the opposing party, it is error to refuse permission to 17 amend, and where the refusal also results in a party being deprived of the right to assert a meritorious 18 cause of action[;] it is not only error but an abuse of discretion.” Morgan v. Super. Ct. (1959) 172 19 Cal.App.2d 527, 530 (finding the trial court abused its discretion in denying a motion for leave to 20 file an amended complaint that was filed before a trial date has been set). 21 IV. LEGAL ARGUMENT 22 The proposed FAC is based on the same facts plead in the initial Complaint regarding 23 judgment debtor Demas Yan’s (“Yan”) fraudulent transfer of property to Defendants, and their 24 related conspiracy with Yan. As reflected by the “redlined” version attached as Exhibit B to the Fu 25 Decl., the proposed amendment makes non-substantive corrections and clarifications of the 26 allegations in the initial Complaint, and appropriately amends the relief sought thereby. 27 Plaintiffs would be prejudiced if they are not allowed to amend the Complaint, including by 28 being prevented from appropriately clarifying their allegations and being deprived of the ability to Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 4 41312\14666190.4 (415) 954-4400 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769 1 seek appropriate relief. Conversely, Defendants would not be prejudiced by such amendment, as 2 the substantive set of facts remains unchanged, no trial date has been set, and the proposed 3 amendment does not raise any new or substantially different issues. Under such circumstances, a 4 motion to amend even during a trial should be granted. Sachs, Inc. v. City of Oceanside (1984) 151 5 Cal.App.3d 315, 321-332; Hirsa v. Superior Court (Vickers) 118 Cal.App.3d 486-490; Clarkv. 6 Pullins (1959) 171 Cal.App.2d. 703, 711-712. It is an abuse of discretion to deny leave to amend 7 where the opposing party was not misled or prejudiced by the amendment. Berman v. Bromberg 8 (1997) 56 Cal.App.4th 936, 945; Glaser v. Meyers (1982) 137 Cal.App.3d 770-777. Defendants 9 have also indicated that 10 V. CONCLUSION 11 Based on the foregoing, Plaintiffs respectfully request the Court grant the motion allowing 12 Plaintiffs leave to file their FAC. 13 Dated: March 11, 2022 FARELLA BRAUN + MARTEL LLP 14 15 By: 16 Gary M. Kaplan 17 Attorneys for Plaintiffs 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 5 41312\14666190.4 (415) 954-4400 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT - Case No. CGC-17-556769 1 PROOF OF SERVICE 2 Crystal Lei and Bryant Fu v. Tina Yan, et al. 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 March 11, 2022, I served true copies of the following document(s) described as 7 PLAINTIFFS’ MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT on the interested parties in this action as follows: 8 SEE ATTACHED SERVICE LIST 9 BY ELECTRONIC SERVICE: I electronically served the document(s) described above 10 via File & ServeXpress, on the recipients designated on the Transaction Receipt located on the File & ServeXpress website (https://secure.fileandservexpress.com) pursuant to the Court Order 11 establishing the case website and authorizing service of documents. 12 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 13 Executed on March 11, 2022, at Rodeo, California. 14 15 16 Grant D. Groettum 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 (415) 954-4400 1 SERVICE LIST 2 3 William Leeds Disston Charlie Yu 409 13th St Fl 9 548 Market St Pmb 48752 4 Oakland, CA 94612 San Francisco, CA 94104 E-Mail: casdiss@yahoo.com E-Mail: cyu@essentiallawgroup.com 5 Attorney for Tina Yan, Thai Ming Chiu, Attorney for Cross-Defendant 6 Kaman Liu, and Legal Recovery, LLC Stella Chen 7 Ting Cham Poon 8 331A 28th Avenue San Francisco, CA 94121 9 E-Mail: peterpoon.sf@gmail.com 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Farella Braun + Martel LLP 235 Montgomery Street, 17th Floor San Francisco, California 94104 (415) 954-4400