Motion,Ex Parte: BRYANT FU ET AL VS. TINA YAN ET AL

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                                Mark A. Serlin, CSBN: 122155
SERLIN & WHITEFORD, LLP

700 E Street

Sacramento, CA 95814
Telephone: (916) 446-0790
Facsimile: (916) 446-0791

Email: mserlin@globelaw.com

Attorneys for Plaintiffs
BRYANT FU and CRYSTAL LEI

ELECTRONICALLY

FILED

Superior Court of Catifornia,
County of San Francisco

05/16/2017
Clerk of the Court
BY: CAROL BALISTRERI
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO

BRYANT FU and CRYSTAL LEI,
Plaintiffs,

vs.

TINA YAN, individually and as personal

representative of the estate of Cheuk Tin

Yan, deceased; THAI MIN _ CHIU;

KAMAN LIU; and DOES 1 — 20, inclusive,

Defendants.

KAMAN LIU,

Cross-complaint,
vs.
TONY FU aka DONG XING FU,
CRYSTAL LEI aka LI MING LEI,
BRYANT FU, STELLA CHEN aka HONG
XING FU aka HONG XING CHEN, and
ROES 1-10,

Cross-defendants.

CASE NO. CGC-17-556769
Unlimited Civil

DECLARATION OF MARK A. SERLIN IN
OPPOSITION TO MOTION TO QUASH
SERVICE OF PROCESS

Date: May 30, 2017
Time: 9:30 a.m.
Dept: 302

Complaint filed:
Cross-complaint filed:
Trial date:

January 31, 2017
April 28, 2017
Not set yet

Reservation No. 04270530-05

SERLIN DECLARATION IN OPPOSITION TO.
MOTION TO QUASH SERVICE OF PROCESS,

Fu, etal. v. Yan, et al.
Case No. CGC-17-556769w

1, Mark A. Serlin, declare: |

1. I am an attorney duly licensed to practice law by the State of California and am |
counsel to plaintiffs Bryant Fu and Crystal Lei in the above-captioned matter. I make this |
declaration based on personal knowledge. and if called as a witness to testify as to matters stated
herein, | would be willing and competent to do so.

2. Attached hereto as Exhibit A is a true and correct copy of a notice of disciplinary

charges filed on January 10, 2017 by the California State Bar against Demas W. Yan, counsel for
I

_ defendants herein. | obtained this through a public records search and request that the Court take

udicial notice of its contents.

3. Attached hereto as Exhibit B is a true and correct copy a final order entered by the

| Ninth Circuit Court of Appeals on November 1, 2016 with respect to attorney Demas W. Yan. As |
with Exhibit A, I obtained this from public records and request that the Court take judicial notice of |

its contents.

I declare under penalty of perjury that the foregoing is true and gfrggt and that this

|| declaration was executed at Sacramento, California, on May 1S , 2014)
a |]
Af

Whe

MARK A. SERLIN*

SERLIN DECLARATION IN OPPOSITION TO. i Fu, et al. y. Yan, et al.

|
S:\Active Files\LEI & FU\fraudulent transfer\court docs\quash motion. mas decl.docx
|
|
|
}| MOTION TO QUASH SERVICE OF PROCESS. Case No. CGC-17-556769 |Ce Ia DA

e @ PUBLIC MATTER
FILED

STATE BAR OF CALIFORNIA JAN 10 2017
OFFICE OF CHIEF TRIAL COUNSEL

GREGORY DRESSER, No, 136532

INTERIM CHIEF TRIAL COUNSEL STATE BAR COURT CLERK'S OFFICE
MELANIE J, LAWRENCE, No. 230102 a
ACTING DEPUTY CHIEF TRIAL COUNSEL

SUSAN:CHAN, No. 233229

ACTING ASSISTANT CHIEF TRIAL COUNSEL

DONALD R. STEEDMAN, No. 104927

ACTING ASSISTANT CHIEF TRIAL COUNSEL

SUSAN I. KAGAN, No, 214209

SENIOR TRIAL COUNSEL

180 Howard Street

San Francisco, California 94105-1639

Telephotie: (415) 538-2037

HW
X
a STATE BAR COURT
: HEARING DEPARTMENT - SAN FRANCISCO

In the Matter of: ) Case No. 16-J-17889
: )
DEMAS‘W. YAN, ) NOTICE OF DISCIPLINARY CHARGES
No. 257854, )
i )
) (Bus. & Prof. Code, § 6049.1; Rules Proc. Of

A Member of the State Bar ) State Bar, rules 5.350 to 5.354)

h NOTICE - FAILURE TO RESPOND!

IF YOU FAIL TO FILE A WRITTEN ANSWER TO THIS NOTICE
WITHIN 20 DAYS AFTER SERVICE, OR IF YOU FAIL TO APPEAR AT
THE STATE BAR COURT TRIAL:

(1) YOUR DEFAULT WILL BE ENTERED;

(2) YOUR STATUS WILL BE CHANGED TO INACTIVE AND YOU
» WILL NOT BE PERMITTED TO PRACTICE LAW;

(3) YOU WILL NOT BE PERMITTED TO PARTICIPATE FURTHER IN
* THESE PROCEEDINGS UNLESS YOU MAKE A TIMELY MOTION
“ AND THE DEFAULT IS SET ASIDE, AND;

(4) YOU SHALL BE SUBJECT TO ADDITIONAL DISCIPLINE.
~ SPECIFICALLY, IF YOU FAIL TO TIMELY MOVE TO SET ASIDE

OR VACATE YOUR DEFAULT, THIS COURT WILL ENTER AN
* ORDER RECOMMENDING YOUR DISBARMENT WITHOUT
* FURTHER HEARING OR PROCEEDING. SEE RULE 5.80 ET SEQ.,
* RULES OF PROCEDURE OF THE STATE BAR OF CALIFORNIA.

cai

EXHIBIT AThe State Bar of California alleges:
: JURISDICTION
1.,DEMAS W. YAN ("respondent") was admitted to the practice of law in the State of
California on December 1, 2008, was a member at all times pertinent to these charges, and is
currently a member of the State Bar of California.

PROFESSIONAL MISCONDUCT IN A FOREIGN JURISDICTION

2. ‘On or about November 1, 2016, the United States Court of Appeals for the Ninth
Cireuit ordered that respondent be disciplined upon findings that respondent had committed
professional misconduct in that jurisdiction as set forth in the Final Order of November 1, 2016.
Thereafter; the decision of the foreign jurisdiction became final. ;

3. ‘A certified copy of the final order of disciplinary action of the foreign jurisdiction is
attached, as Exhibit 1, and incorporated by reference.

4. ‘A copy of the statutes, rules or court orders of the foreign jurisdiction found to have
been violated is attached, as Exhibit 2, and incorporated by reference.

5, SRespondent’s culpability as determined by the foreign jurisdiction indicates that the
following ‘California statutes or rules have been violated or warrant the filing of this Notice of

Disciplinary Charges:

Misconduct Violations of Rules and California Rules and
i Statutes Found by Court Statutes
of Appeals
Submittixig a False Federal Rule of Appellate Business and Professions Code
Application for Procedure 46(a), Federal sections 6106, 6068(a),
Admission Rule of Appellate Procedure 6068(b) and 6068(d)

46(b)(1)(B), Federal Rule of
Appellate Procedure 46(c),
Ninth Circuit Rule 46-2(a)

aConflict. of Interest in

Yan v. Lombard Flats

Making Threats in Yan
v. Lombard Flats

“oN

Filing Frivolous

Appeals:

Failing to Comply with
Court Rules and

Orders «

Unauthorized Practice

of Law ©

Rules of Professional
Conduct, rule 3-310(C)

Federal Rule of Appellate
Procedure 46(a), Federal
Rule of Appellate Procedure
46(b)(1)(B), Federal Rule of
Appellate Procedure 46(c),
Ninth Circuit Rule 46-2(a)

Business and Professions

Code section 6068(c)
Ninth Circuit Rule 46-1.2,

Ninth Circuit Rule 46-2(a)

Ninth Circuit Rule 46-1.2,
Ninth Circuit Rule 46-2(a)

Rules of Professional Conduct,

rule 3-310(C)

Business and Professions Code
section 6106; Rules of
Professional Conduct, rule

5-100(A)

Business and Professions Code

section 6068(c)

Business and Professions Code

sections 6103 and 6068(b)

Rules of Professional Conduct,

rule 1-300(B)

ISSUES FOR DISCIPLINARY PROCEEDINGS

6. The attached findings and final order are conclusive evidence that respondent is

culpable of professional misconduct in this state subject only to the following issues:

: A. The degree of discipline to impose;

B. Whether, as a matter of law, respondent’s culpability determined in the

proceeding in the other jurisdiction would not warrant the imposition of discipline in the State of

California under the laws or rules binding upon members of the State Bar at the time the member

committed misconduct in such other jurisdiction; andoD DH Fw

« C. Whether the proceedings of the other jurisdiction lacked fundamental
constitutional protection.
7. Respondent shall bear the burden of proof with regard to the issues set forth in

subparagraphs B and C of the preceding paragraph.

NOTICE - INACTIVE ENROLLMENT!

YOU ARE HEREBY FURTHER NOTIFIED THAT IF THE STATE BAR
COURT FINDS, PURSUANT TO BUSINESS AND PROFESSIONS CODE
SECTION 6007(c), THAT YOUR CONDUCT POSES A SUBSTANTIAL
THREAT OF HARM TO THE INTERESTS OF YOUR CLIENTS OR TO
THE PUBLIC, YOU MAY BE INVOLUNTARILY ENROLLED AS AN
INACTIVE MEMBER OF THE STATE BAR, YOUR INACTIVE
ENROLLMENT WOULD BE IN ADDITION TO ANY DISCIPLINE
RECOMMENDED BY THE COURT.

NOTICE - COST ASSESSMENT!

IN THE EVENT THESE PROCEDURES RESULT IN_ PUBLIC
DISCIPLINE, YOU MAY BE SUBJECT TO THE PAYMENT OF COSTS
INCURRED BY THE STATE BAR IN THE INVESTIGATION, HEARING
AND REVIEW OF THIS MATTER PURSUANT TO BUSINESS AND
PROFESSIONS CODE SECTION 6086.10.

a

é Respectfully submitted,
a THE STATE BAR OF CALIFORNIA
° OFFICE OF CHIBF TRIAL COUNSEL

DATED: January 10, 2017 By:

7 SUSANY. AN
% Senior Trial Counsel
%

4.Case: 1 Mer, 11/01/2016, ID: 10181261, DktEntry: 7, Page 1 of 10

UNITED STATES COURT OF APPEALS Fl LE D
NOV 1 2016

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DEMAS W. YAN, Esq., Admitted to} No. 16-80097
the Bar of the Ninth Circuit: June 29, 2016

A TRUE COPY
ATTEST 41 (24 [

2oh
MOLLY C. DWYER

Respondent. FINAL ORDER Clerk of Court
by: OU [
uty Clerk
Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF,” District

Judge.

On July 28, 2016, the panel ordered respondent, Demas Wai Yan, Esq., to
show cause why his membership in this Court’s bar should not be rescinded
because of false statements he provided in his application for membership on June
29, 2016. The panel referred the order to show cause (OSC) and Yan’s response to
the Appellate'Commissioner for a report and recommendation to the panel for the
disposition of the OSC. See 9th Cir. R. 46-2(f).

On October 7, 2016, the Commissioner filed a report and recommendation

i
finding “a clear basis for rescinding Yan’s membership in the bar of the Ninth

Circuit.” Comm’r’s R&R at 7 (ECF No. 6). For the reasons stated below, the

panel adopts the Commissioner’s recommendation and rescinds Yan’s membership

7 The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

EXHIBIT

Po.Case: 1¢-Mer, 11/01/2016, iD: 10181261, vel 7, Page 2 of 10

in the bar of the Ninth Circuit.

I. LEGAL STANDARD

Federal Rule of Appellate Procedure 46(a)(1) provides that “[a]n attorney is
eligible for admission to the bar of a court of appeals if that attorney is of good
moral and professional character.” Fed. R. App. P. 46(a)(1). “A member of the

court’s bar‘is subject to suspension or disbarment by the court if the member . . . is

3

guilty of conduct unbecoming a member of the court’s bar.” Id. R. 46(b)(1)(B).

“A court of appeals may discipline an attorney who practices before it for conduct

unbecoming a member of the bar or for failure to comply with any court rule.” Jd.
R. 46(c).
Ninth Circuit Rule 46-2(a) provides that “{t]his Court may impose discipline

on any attomey practicing before this Court who engages in conduct violating

applicable rules of professional conduct, or who fails to comply with rules or
orders of this Court.” 9th Cir. R. 46-2(a). “The discipline may consist of

disbarment . . . or any other action that the Court deems appropriate and just.” Jd.

: The panel finds this disposition appropriate without further hearing pursuant

to Yan’s waiver of a hearing in his response to the OSC. See 9th Cir. R. 46-2(d);
Resp. to Osc (ECF No. 4) (“Respondent waives hearing .. ..”). The panel also
declines Yan’s request “to voluntarily withdraw [his] application of June 29,
2016.” Resp. to OSC.Case: 1 7, 11/01/2016, ID: 10181261, DktEntry: 7, Page 3 of 10

HI. DISCUSSION

Demas Wai Yan was admitted to practice law in California on December 1,
2008. Although he was previously suspended from the State Bar from October 11,
2013 to October [1, 2014, currently Yan is an active member of the State Bar of
California, Bat No. 257854. See OSC, Attach. 2 (ECF No. 2). On June 29, 2016,
Yan filed an Application and Oath for Admission to the bar of the Ninth Circuit.
See OSC, Attach. 1. The application form contained four “Yes” or “No” questions.
Question 3 asked whether there were any actions for disbarment or suspension

i

“pending against” Yan. Question 4 asked whether Yan was “currently under
investigation by ... any court or government agency.” Jd. Yan answered “No” to
Questions 3 and 4, and he certified his answers under penalty of perjury. /d. His
answers, however, were false.

a
A. Yan Submitted a False Application for Admission

California State Bar Court records show that, on December 30, 2014, the
State Bar filed a “Notice of Disciplinary Charges” against Yan in Case No.
13-O-17331, which alleged that Yan had filed a Chapter 7 bankruptcy petition “in
bad faith and for an improper purpose of frustrating a creditor’s efforts to foreclose
2 A “Notice of Disciplinary Charges” is “the initial pleading that provides

notice of the rules, statutes, or orders the member is alleged to have violated” and
begins a State Bar disciplinary proceeding. State Bar Rule 5.4(37); see id. R. 5.20.Case: Ber, 11/01/2016, ID: 10181261, DktEntry: 7, Page 4 of 10

on a property that was not owned by the debtor, in violation of rule 9011(b) of the
Federal Rules of Bankruptcy Procedure.” OSC, Attach. 2 at 4.

In his fesponse to the OSC, Yan provided a copy of a May 23, 2016 status
conference thee in Case No. 13-O-17331, which noted that Yan’s disciplinary
action was in “Abatement pending [a] new case.” Resp. to OSC, Ex. A. Yan
states that he, assumed a “pending” disciplinary action in Question 3 meant an
“active” diseptnary action. He contends that he answered “No” because he
assumed that his disciplinary action was “not active during abatement.” Resp. to
ose.

Yan’s:contentions are not credible. His public profile on the California State
Bar website explicitly states that Case No. 13-O-17331 is “pending.” Demas Wf]
Yan, THE STATE BAR CALIFORNIA, http://members.calbar.ca.gov/fal/Member/
Detai’257854 (last visited October 27, 2016). In addition, the May 23, 2016 status
conference order had set the disciplinary matter for a further status conference on
August 29, 2016.

Furthermore, neither the State Bar Rules of Procedure nor the Rules of
Practice provide that an abated case is no longer “pending” or “active.” See State
Bar Rules, tt 5. Rather, State Bar Rule 5.50 provides: “On.any party’s motion or

on its own motion after notice to the parties, the [State Bar] Court may abate any

proceeding in whole or in part. Abatement stays the proceeding in the State Bar
(Case: Mr, 11/01/2016, 1D: 10181261, DktEntry: 7, Page 5 of 10

Court and tolls all time limitations in the proceeding, but the Court may grant a
motion for perpetuation of evidence.” State Bar Rule 5.50(A). “Evidence is
perpetuated by obtaining depositions or stipulations as to facts.” Jd. R. 5.423(B).
“[T}he evidence perpetuated may be admitted in evidence in any future proceeding
pertaining to the member’s conduct or qualifications to practice law.” Id. R. 5.425.
Abatement thus contemplates that the proceeding will continue. See R. 5.50(B)
(providing alist of “relevant factors” that the State Bar Court considers in
determining whether to abate an action, all of which contemplate that the action
will continue).

Yan's. purported ignorance of State Bar disciplinary procedures is even more
implausible given his experience in previous disciplinary proceedings that resulted
in his onecydhe suspension from the State Bar on October 11, 2013. We therefore
conclude that Yan submitted a false answer to Question 3.

We are also informed that Yan’s disciplinary action was abated because the
State Bar aniicipates opening a new case against Yan, with which his pending
disciplinary action will be consolidated. See Comm’r’s R&R at 6. State Bar Rule
5.50 indeed provides that, in determining whether to abate a proceeding, relevant
factors include the extent to which “the issues in the proceeding are substantially

the same as in a related proceeding” and “evidence to be adduced in a related

proceeding would aid in determining the [present] proceeding.” State Bar RuleCase: 1 Mer, 11/01/2016, ID: 10181261, oe 7, Page 6 of 10

5.50(B)(1), (4); see also id. R. 5.50(C) (defining a “related proceeding” as a “civil,
criminal, administrative, or State Bar Court proceeding that involves the same
subject matter,” parties, or witnesses).

Because Yan’s disciplinary proceeding was abated on a duly noticed motion,
see id. R. 5.50(A), Yan was aware that his case was.in abatement because more
disciplinary charges were in the offing. Yan therefore submitted a false answer to

Question 4, which asked whether he was “currently under investigation by... any
court or Bede tine agency.” OSC, Attach. 1.

We thus adopt the Commissioner’s finding that “it is not credible that [Yan]
answered ‘No’ to both [Questions 3 and 4] in the good faith belief that there was
no need to disclose either Case No. 13-O-17331 or any ‘new case’ he knew to be
fortheoming,4 Comm’r’s R&R at 7. Accordingly, Yan has failed to show cause
why we should not rescind his membership to the Ninth Circuit bar for submitting

fF
a false application.

B. Yan's Conduct in Cheuk Tin Yan y. Lombard Flats, LLC

In addition to submitting a false application, Yan “engageld] in conduct
violating applicable tules of professional conduct.” 9th Cir. R. 46-2(a). In the
bankruptcy appeal underlying this disciplinary matter, Yan represented his father
against his former client, Martin Eng. See Cheuk Tin Yan v. Lombard Flats, LLC,

No. 14-16624, However, Yan admitted during oral argument that he did not obtainCase: 16. My, 11/01/2016, ID: 10181261, one. 7, Page 7 of 10

a conflict of interest waiver from Eng or refer Eng to separate counsel to advise
him on whether to waive the conflict of interest. See Oral Argument at 2:30 (July
20, 2016), http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=
0000009995. “California Rule of Professional Conduct 3-310(C) prohibits the
representation of clients with actual or potential conflicts of interest absent an
express waiver.” Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 1157, 1167 (9th
Cir. 2013); see also Cal. R. Prof’] Conduct 3-310(E) (“A member shall not,

i
without the informed written consent of the client or former client, accept
employment adverse to the client or former client... .”).

Yan also admitted to sending an email to Eng on August 18, 2009, which
stated: “your family is still liable for fraud. I will tell the judge about your [fraud]
... your[] is going to jail.” OSC, Attach. 4. These statements constitute a

* violation of California Rule of Professional Conduct 5-100(A), which provides that
“(al member shall not threaten to present criminal, administrative, or disciplinary
charges to obain an advantage in a civil dispute.” Cal. R. Prof] Conduct
5-100(A).

Additionally, Yan did not dispute that, in that very same email, he threatened
Eng’s life by writing: “you cheated [W]ong out of money. [H]e wants your
[redacted] alo. [YJou better buy life insurance now.” OSC, Attach. 4; see Oral

Arg. at 7:10-8:20. Such conduct is patently unbecoming a member of the Court’sCase: 16 Mer, 11/01/2016, ID: 10181261, nec: 7, Page 8 of 10

bar, Fed. R. App. P. 46(b)(1)(B), and Yan’s responses as to whether he was
threatening Eng’s life with that email and his apparent lack of contrition
undeniably Ssrhaatate a lack of “good moral and professional character,” id.
R. 46(a)(1).

Cc. “Yan's Multiple Frivolous Appeals

Moreover, Yan has filed multiple frivolous appeals in this Court. In Demas

Wai Yan v. Fu (In re Demas Wai Yan), No. 12-15204, we imposed sanctions on
%

Yan for filing a frivolous appeal and held that “Yan’s position in th[e] appeal [was]
wholly without merit.” 586 F. App’x 686, 686-88 (9th Cir. 2014) (unpublished
decision). We then imposed sanctions on Yan again in a separate appeal in which
we also found “Yan’s appeal frivolous.” See June 23, 2016 Order at 2, Demas Wai
Yan v. Fu, No. 14-16937 (ECF No. 32). Additionally, in Demas Wai Yan v.
Lombard Fi tats, LLC, No. 15-80043, we took judicial notice of a bankruptcy
court’s “Order Determining Demas Yan to Be a Vexatious Litigant.” See June 11,

2015 Order, id. (ECF No. 5); id. (ECF No. 1 at 27) (“Demas Yan is determined to

be a vexatious litigant.”). We reiterate that finding here.

D. Yan's Repeated Violations of Circuit Rule 46-1.2
f :
Finally, Yan has repeatedly “fail[ed] to comply with rules or orders of this
Court.” 9th Cir. R. 46-2(a). Ninth Circuit Rule 46-1.2 provides that “[a]ny

attorney who causes a case to be docketed in this Court or who enters an¢

Case: 16-0, 11/01/2016, iD: 10181261, nee 7, Page 9 of 10

appearance in this Court, and who is not already admitted to the Bar of the Court,
shall simultangously apply for admission.” 9th Cir. R. 46-1.2. It is undisputed that
Yan submitted his first application for membership to the Ninth Circuit bar on June
29, 2016.

On leary 30, 2012, however, Yan “cause[d] a case to be docketed in this
Court” when he filed a pro se appeal in In re Demas Wai Yan, No 12-15204. In
that same case, Yan then entered an appearance to represent himself as counsel.

Id. (ECF No. ». However, Yan did not “simultaneously apply for admission”
either of those times in clear violation of Circuit Rule 46-1.2. On March 18, 2015,
Yan again represented himself as counsel in opposing a petition for permission to
appeal in Demas Wai Yan, No. 15-80043, without applying for admission in

violation of Circuit Rule 46-1.2. See id. (ECF No. 3).

. Ill. CONCLUSION
Revocation of Yan’s bar membership is warranted because of Yan’s record
of persistent misconduct unbecoming a member admitted to practice before our
Court. See Fed. R. App. P. 46(b)(1)(B). Yan has “faile({d] to comply with rules
.. of this Court” and has “engage[d] in conduct violating applicable rules of
i :
professional conduct.” 9th Cir. R. 46-2(a). It is evident that Yan lacks the “good

moral and professional character” for admission to the bar of the Ninth Circuit.

Fed. R. App. P. 46(a), Accordingly, it is hereby ORDERED that Yan’sCase: 16-0, 11/01/2016, ID: 10181261, outer, Page 10 of 10

membership in the bar of the Ninth Circuit be rescinded effective on the date this

Order is filed.
A copy of this Order shall be furnished to the State Bar of California in
accordance with Circuit Rule 46-2(f).
The Clerk of the Court is directed to send this Final Order to the following:
(1) " Office of Chief Trial Counsel/Intake
t The State Bar of California
., 845 South Figueroa Street
© Los Angeles, CA 90017-2515
(2) {Demas W. Yan
300 Frank Ogawa Plaza
Suite 218
Oakland, CA 94612

IT IS SO ORDERED.

10FRAP 46

(As amended Mar. 10, 1986, eff. July 1, 1986; Apr. 24, 1998, eff. Dec. 1, 1998.)

CIRCUIT RULE 46-1. ATTORNEYS

46-1.1. Forms for Written Motions

Written motions for admission to the bar of the Court shall be on the form approved by the Court
and furnished by the Clerk, (Rev. 7/93)

46-1.2, Time for Application

Any attorney who causes a case to be docketed in this Court or who enters an appearance in this
Court, and who is not already admitted to the Bar of the Court, shal! simultaneously apply for
admission. (Rev. 7/93)

CIRCUIT RULE 46-2, ATTORNEY SUSPENSION,
? DISBARMENT.OR OTHER DISCIPLINE

(a) Conduct Subject to Discipline. This Court may impose discipline on any attorney
practicing before this Court who engages in conduct violating applicable rules of
professional conduct, or who fails to comply with rules or orders of this Court. The
discipline may consist of disbarment, suspension, reprimand, counseling, education, a
monetary penalty, restitution, or any other action that the Court deems appropriate and
just. «

(b) Initiation of Disciplinary Proceedings Based on Conduct Before This Court. The
Chief Judge or a panel of judges may initiate disciplinary proceedings based on conduct
before this Court by issuing an order to show cause under this rule that identifies the basis
for imposing discipline.

(c) Reciprocal Discipline. An attorney who practices before this Court shall provide the
Clerk of this Court with a copy of any order or other official notification that the attorney
has been'subjected to suspension or disbarment in another jurisdiction, When this Court
learns that a member of the bar of this Court has been disbarred or suspended from the
practice of law by any court or other competent authority or resigns during the pendency
of disciplinary proceedings, the Clerk shall issue an order to show cause why the attorney
should not be suspended or disbarred from practice in this Court.

(d) Response, An attorney against whom an order to show cause is issued shall have 28 days
from the date of the order in which to file a response. The attorney may include in the
response a request for a hearing pursuant to FRAP 46(c). The failure to request a hearing
will be deemed a waiver of any right to a hearing. The failure to file a timely response
may result in the imposition of discipline without further notice. (Rev. 12/1/09)FRAP 46

(©)

®

@®

(h)

@

Hearings on Disciplinary Charges, If requested, the Court will hold a hearing on the
disciplinary charges, at which the attorney may be represented by counsel. In a maiter
based'on an order to show cause why reciprocal discipline should not be imposed, an
appellate commissioner will conduct the hearing. In a matter based on an order to show
cause based on conduct before this Court, the Court may refer the matter to an appellate
commissioner or other judicial officer to conduct the hearing. In appropriate cases, the
Court may appoint an attorney to prosecute charges of misconduct. (Rev. 1/1/12)

Report and Recommendation. If the matter is referred to an appellate commissioner or
other judicial officer, that judicial officer shall prepare a report and recommendation. The
report and recommendation shall be served on the attorney, and the attorney shal} have 21
days from the date of the order within which to file a response. The report and
recommendation together with any response shall be presented to a three-judge panel.
(Rev. 12/1/09)

Final Disciplinary Action. The final order in a disciplinary proceeding shall be issued by
a three-j ~judge panel. If the Court disbars or suspends the attorney, a copy of the final order
shall be furnished to the appropriate courts and state disciplinary agencies. If the order
imposes a sanction of $1,000 or more, the Court may furnish a copy of the order to the
appropriate courts and state disciplinary agencies. Ifa copy of the final order is
distributed to other courts or state disciplinary agencies, the order will inform the attorney
of that distribution.

Reinstatement. A suspended or disbarred attorney may file a petition for reinstatement
with the Clerk. The petition shall contain a concise statement of the circumstances of the
disciplinary proceedings, the discipline imposed by this Court, and the grounds that
justify reinstatement of the attomey.

Monetary Sanctions. Nothing in the rule limits the Court’s power to impose monetary
sanctions as authorized under other existing authority. (New 1/1/02)

CIRCE IT ADVISORY COMMITTEE NOTE TO RULE 46-2

The Court indy impose monetary sanctions as follows:

@

@)

8)

Against a party, its counsel, or both under FRAP 38, where the Court determines that
“an appeal is is frivolous, it may award just damages and single or double costs to the
appellee,”

Against @ party, its counsel, or both under 28 U.S.C. § 1912, “[w]here a judgment is
affirmed by... a court of appeals, the Court in its discretion may adjudge to the
prevailing party just damages for his delay, and single or double costs.”

Under 28 U.S.C. § 1927, where counsel “so multiplies the proceedings in any case
unreasonably or vexatiously,” counsel “may be required by the Court to satisfy
personally the excess costs, expenses and attorneys’ fees reasonably incurred because of
such conduct,”

1?2-FRAP 46

(4) ~—- Under Circuit Rules 17-2 and 30-2, against counsel who “vexatiously and unreasonably
increases the cost of litigation by inclusion of unnecessary material in the excerpts of
record,

(3) Under Circuit Rule 42-1, against counsel for “failure to prosecute an appeal to hearing
as required by FRAP and the Circuit Rules,

(6) Against counsel for failure to comply with the requirements of FRAP 28 and Circuit
Rules 28-] through 28-3, dealing with the form and content of briefs on appeal. See, ¢.g.,
Mitchel v, General Electric Co., 689 F.2d 877 (9th Cir, 1982).

(7) Against counsel for conduct that violates the orders or other instructions of the Court, or
for failure to comply with the Federal Rules of Appellate Procedure or any Circuit Rule.

(8) Under the inherent powers of the Court. See, e.g., Chambers v. Nasco, Inc., 501 U.S. 32,
45-50 (1991).

(9) As & form of discipline under FRAP 46(c) and Circuit Rule 46-2, with notice of such
ions provided to the appropriate courts and state disciplinary agencies when the
Court deems such notice to be justified. (Rev. 1/1/02)

“ CIRCUIT RULE 46-3. CHANGE OF ADDRESS

Changes in’the address of counsel and pro se litigants registered for the Appellate CM/ECF
system must be reported by updating their account at;

https://pacer.psc.uscourts. gov/pscof/login.jsf. Changes in the address of counsel and pro se
litigants who are exempt from or who are not registered for the Appellate. CM/ECF system must
be reported to’the Clerk of this Court immediately and in writing, (Rev. 12/1/09)

a

CIRCUIT RULE 46-4. PARTICIPATION OF LAW STUDENTS

An eligible law student acting under the supervision of a member of the bar of this Court may
appear on behalf of any client in a case before this Court with the written consent of the client if
the Requirements for Student Practice before this Court are met. The Requirements for Student
Practice are available from the Clerk of Court and on the website at www.ca9.uscourts.gov,

CIRCUIT RULE 46-5. RESTRICTIONS ON PRACTICE BY
2 FORMER COURT EMPLOYEES

No former employee of the Court shall participate or assist, by way of representation,
consultation, or otherwise, in any case that was pending in the Court during the employee’s
period of employment. It shall be the responsibility of any former employee, as well as the

A739FRAP 46

persons employing or associating with a former employee in the practice of law before this
Court, to ensure compliance with this rule.

An attorney who is a former employee may apply to the Court for an exemption. The application
must demonstrate that the attorney had no direct or indirect involvement with the case during
employment with the Court, and that the attorney was not employed or assigned in the chambers
of any judge: who participated in the case during the attorney’s employment with the Court. (Rev.
V//11; Rev. 7/1/13)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 46-5

The rule is intended to avoid the appearance of impropriety if a former court employee were to
work on a matter that was pending in the court during the employee's period of employment.

With respect to attorneys employed or assigned in the chambers of any judge, an application for
an exemption. shall show that the judge did not participate in ruling on any motion or other
aspect of the case, including making, responding to, or voting on an en banc call during the
employee's period of employment. (New 7/1/13)

174DECLARATION OF SERVICE BY CERTIFIED AND REGULAR MAIL

RE: YAN
CASE NOS.: 16-J3-17889

I, the undersigned, over the age of eighteen (18) years, whose business address and place of
employment is the State Bar of California, 180 Howard Street, San Francisco, California
94105, declare that I am not a party to the within action; that I am readily familiar with the
State Bar of California’s practice for collection and processing of correspondence for mailing
with the United States Postal Service; that in the ordinary course of the State Bar of
California’s practice, correspondence collected and processed by the State Bar of Califomia
would be deposited with the United States Postal Service that same day; that ] am aware that
on motion of party served, service is presumed invalid if postal cancellation date or postage
meter date on the envelope or package is more than one day after date of deposit for mailing
contained in the affidavit; and that in accordance with the practice of the State Bar of
California for collection and processing of mail, I deposited or placed for collection and
mailing in the City and County of San Francisco, on the date shown below, a true copy of the
within &

NOTICE OF DISCIPLINARY CHARGES

in a sealed envelope placed for collection and mailing as certified mail, return receipt
requested, and in an additional sealed envelope as regular mail, at San Francisco, on the date
shown below, addressed to:

Article No. 9414 7266 9904 2069 9448 94

Samuel C. Bellicini

SamuelC. Bellicini, Lawyer

1005 Northgate Dr #240

San Rafael, CA 94903

in an inte?-office mail facility regularly maintained by the State Bar of California addressed to:
N/A

I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed at San Francisco, California, on the date shown below.

i ' :
DATED: January 10, 2017 soe pan Luin
Mi fawn Williams

4 DeclarantCase: 16. Mr, 11/01/2016, ID; 10181261, DktEntry: 7, Page 1 of 10

UNITED STATES COURT OF APPEALS F | LED
NOV 1 2016

~ MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: DEMAS W. YAN, Esq., Admitted to} No. 16-80097 TATRUE COPY
the Bar of the Ninth Circuit: June 29, 2016 ATTEST 4 [24 |

FINAL ORDER MOLLY C. DWYER

20h

. Respondent. Clerk of Court
you
uty Clerk

Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF," District
Judge.

Ond uly 28, 2016, the panel ordered respondent, Demas Wai Yan, Esq., to
show cause why his membership in this Court’s bar should not be rescinded
because of false statements he provided in his application for membership on June

29,2016. The panel referred the order to show cause (OSC) and Yan’s response to

the Appellate: Commissioner for a report and recommendation to the panel for the

disposition of the OSC. See 9th Cir. R. 46-2(0.

On October 7, 2016, the Commissioner filed a report and recommendation
finding “a clear basis for rescinding Yan’s membership in the bar of the Ninth
Circuit.” Comm’t’s R&R at 7 (ECF No. 6). For the reasons stated below, the

panel adopts the Commissioner’s recommendation and rescinds Yan’s membership

a The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.

EXHIBIT BCase: 16 Mor, 11/01/2016, ID: 10181261, vee: 7, Page 2 of 10

in the bar of the Ninth Circuit.'

I. LEGAL STANDARD

Federal Rule of Appellate Procedure 46(a)(1) provides that “[a]n attorney is
eligible for admission to the bar of a court of appeals if that attorney is of good
moral and ‘professional character.” Fed. R. App. P. 46(a)(1). “A member of the
court’s bar, is subject to suspension or disbarment by the court if the member. . . is
guilty of conduct unbecoming a member of the court’s bar.” Jd. R. 46(b)(A)(B).
“A court of appeals may discipline an attorney who practices before it for conduct
ihspsnied a member of the bar or for failure to comply with any court rule.” Jd.
R. 46(c).

Ninth Circuit Rule 46-2(a) provides that “{t]his Court may impose discipline
on any attdiney practicing before this Court who engages in conduct violating
applicable rules of professional conduct, or who fails to comply with rules or
orders of this Court.” 9th Cir. R. 46-2(a). “The discipline may consist of

disbarment . . . or any other action that the Court deems appropriate and just.” Ja.

7 The panel finds this disposition appropriate without further hearing pursuant

to Yan’s waiver of a hearing in his response to the OSC. See 9th Cir. R. 46-2(d);
Resp. to OSC (ECF No. 4) (“Respondent waives hearing . . ..”). The panel also
declines Yan’s request “to voluntarily withdraw [his] application of June 29,
2016.” Resp. to OSC,Case: 16. Mer, 11/01/2016, 1D: 10181261, DktEntry: 7, Page 3 of 10

II. DISCUSSION

Demas Wai Yan was admitted to practice law in California on December 1,
2008. Although he was previously suspended from the State Bar from October 11,
2013 to October 11, 2014, currently Yan is an active member of the State Bar of
California, Bar No. 257854, See OSC, Attach. 2 (ECF No. 2). On June 29, 2016,
Yan filed an Application and Oath for Admission to the bar of the Ninth Circuit.
See OSC, Attach. 1. The application form contained four “Yes” or “No” questions.
Question 3 asked whether there were any actions for disbarment or suspension

8

“pending against” Yan. Question 4 asked whether Yan was “currently under
investigation by ... any court or government agency.” Jd. Yan answered “No” to

Questions 3 and 4, and he certified his answers under penalty of perjury. /d. His

answers, however, were false,
; a

A. Yan Submitted a False Application for Admission

Califorhia State Bar Court records show that, on December 30, 2014, the
State Bar filed a “Notice of Disciplinary Charges” against Yan in Case No.
13-O-17331, which alleged that Yan had filed a Chapter 7 bankruptcy petition “in
bad faith and for an improper purpose of frustrating a creditor’s efforts to foreclose

7 A “Notice of Disciplinary Charges” is “the initial pleading that provides

notice of the rules, statutes, or orders the member is alleged to have violated” and
begins a State Bar disciplinary proceeding. State Bar Rule 5.4(37); see id. R. 5.20.Case: ee 11/01/2016, ID: 10181261, DktEntry: 7, Page 4 of 10

on a property that was not owned by the debtor, in violation of rule 9011() of the
Federal Rules of Bankruptcy Procedure.” OSC, Attach. 2 at 4.

Tn his Fesponse to the OSC, Yan provided a copy of a May 23, 2016 status
conference order in Case No. 13-O-17331, which noted that Yan’s disciplinary
action was in “Abatement pending [a] new case.” Resp. to OSC, Ex. A. Yan
states that he assumed a “pending” disciplinary action in Question 3 meant an
“active” disciplinary action. He contends that he answered “No” because he
assumed that his disciplinary action was “not active during abatement.” Resp. to
osc.

Yan's contentions are not credible. His public profile on the California State
Bar website explicitly states that Case No. 13-O-17331 is “pending.” Demas W[.]
Yan, THE STATE Bar CALIFORNIA, http://members.calbar.ca.gov/fal/Member/
Detail/257854 (last visited October 27, 2016). In addition, the May 23, 2016 status
conference order had set the disciplinary matter for a further status conference on
August 29, 2016.

Furthermore, neither the State Bar Rules of Procedure nor the Rules of
Practice provide that an abated case is no longer “pending” or “active.” See State
Bar Rules, tit of Rather, State Bar Rule 5.50 provides: “On-any party’s motion or

on its own motion after notice to the parties, the [State Bar] Court may abate any

proceeding in whole or in part. Abatement stays the proceeding in the State BarCase: 16 or, 11/01/2016, ID: 10181261, DktEntry: 7, Page 5 of 10

Court and tolls all time limitations in the proceeding, but the Court may grant a
motion for perpetuation of evidence.” State Bar Rule 5.50(A). “Evidence is
perpetuated by obtaining depositions or stipulations as to facts.” Id. R. 5.423(B).
“(T]he evidence perpetuated may be admitted in evidence in any future proceeding
pertaining to the member’s conduct or qualifications to practice law.” Jd. R. 5.425.
Abatement thus contemplates that the proceeding will continue. See R. 5.50(B)

ue

(providing a list of “relevant factors” that the State Bar Court considers in
determining whether to abate an action, all of which contemplate that the action
will continue).

Yan's purported ignorance of State Bar disciplinary procedures is even more
implausible iver his experience in previous disciplinary proceedings that resulted
in his one-yéar suspension from the State Bar on October 11,2013. We therefore
conclude that Yan submitted a false answer to Question 3.

We are also informed that Yan’s disciplinary action was abated because the
State Bar aniicipates opening a new case against Yan, with which his pending
disciplinary action will be consolidated. See Comm’r’s R&R at 6. State Bar Rule
5.50 indeed provides that, in determining whether to abate a proceeding, relevant
factors include the extent to which “the issues in the proceeding are substantially

ie

the same as in a related proceeding” and “evidence to be adduced in a related

proceeding would aid in determining the [present] proceeding.” State Bar RuleCase: Mer, 11/01/2016, ID: 10181261, oe 7, Page 6 of 10

5,50(B)(1), (4); see also id. R. 5.50(C) (defining a “related proceeding” as a “civil,
criminal, administrative, or State Bar Court proceeding that involves the same
subject mattef,” parties, or witnesses).

Because Yan’s disciplinary proceeding was abated on a duly noticed motion,
see id. R. 5.50(A), Yan was aware that his case was.in abatement because more
disciplinary charges were in the offing. Yan therefore submitted a false answer to
Question 4, which asked whether he was-“currently under investigation by. .. any

&
court or government agency.” OSC, Attach. 1.

We thus adopt the Commissioner’s finding that “it is not credible that [Yan]
answered ‘No’ to both [Questions 3 and 4] in the good faith belief that there was
no need to disclose either Case No. 13-O-17331 or any ‘new case’ he knew to be
forthcoming Comm’r’s R&R at 7. Accordingly, Yan has failed to show cause
why we should not rescind his membership to the Ninth Circuit bar for submitting

f

a false application.

B. Yan’s Conduct in Cheuk Tin Yan vy. Lombard Flats, LLC

In addition to submitting a false application, Yan “engageld} in conduct
violating applicable rules of professional conduct.” 9th Cir. R. 46-2(a), In the
bankruptcy appeal underlying this disciplinary matter, Yan represented his father
against his foimer client, Martin Eng. See Cheuk Tin Yan v. Lombard Flats, LLC,

No. 14-16624, However, Yan admitted during oral argument that he did not obtainCase: 16. 11/01/2016, ID: 10181261, once 7, Page 7 of 10

a conflict of interest waiver from Eng or refer Eng to separate counsel to advise
him on whether to waive the conflict of interest. See Oral Argument at 2:30 (July
20, 2016), bttp://www.ca9.uscourts.gov/media/view- video.php?pk_vid=
0000009995. “California Rule of Professional Conduct 3-310(C) prohibits the
representation of clients with actual or potential conflicts of interest absent an
express waiver.” Radcliffe v. Experian Info. Sols. Inc,, 715 F 3d 1157, 1167 (9th
Cir. 2013); se also Cal. R. Prof’! Conduct 3-310(E) (“A member shall not,
without the ihronmed written consent of the client or former client, accept

x
employment adverse to the client or former client .. . .”).

Yan also admitted to sending an email to Eng on August 18, 2009, which
stated: “your family is still liable for fraud. I will tell the judge about your [fraud]
... your [] is going to jail.” OSC, Attach. 4. These statements constitute a
violation of California Rule of Professional Conduct 5-100(A), which provides that
“Tal member shall not threaten to present criminal, administrative, or disciplinary
charges to obtain an advantage in a civil dispute.” Cal. R. Prof] Conduct
5-100(A).

/ Additionally, Yan did not dispute that, in that very same email, he threatened
Eng’s life by writing: “you cheated [W]ong out of money. [H]e wants your
[redacted] alto. [Y]ou better buy life insurance now.” OSC, Attach. 4; see Oral

Arg. at 7:10-8:20. Such conduct is patently unbecoming a member of the Court’sCase: 16 er, 11/01/2016, ID: 10181261, one 7, Page 8 of 10

bar, Fed. R. App. P. 46(b)(1)(B), and Yan’s responses as to whether he was
threatening Eng’s life with that email and his apparent lack of contrition
undeniably demonstrate a lack of “good moral and professional character,” id.
R. 46(a)(1).

a C. ‘Yan’s Multiple Frivolous Appeals

Moreover, Yan has filed multiple frivolous appeals in this Court. In Demas -
Wai Yan v. Fu (In re Demas Wai Yan), No. 12-15204, we imposed sanctions on
i

Yan for filing a frivolous appeal and held that “Yan’s position in th{e] appeal [was]
wholly without merit.” 586 F. App’x 686, 686-88 (9th Cir. 2014) (unpublished
decision). We then imposed sanctions on Yan again in a separate appeal in which
we also found “Yan’s appeal frivolous.” See June 23, 2016 Order at 2, Demas Wai
Yan v. Fu, No. 14-16937 (ECF No. 32). Additionally, in Demas Wai Yan v.
Lombard Flats, LLC, No. 15-80043, we took judicial notice of a bankruptcy
court’s “Onder Determining Demas Yan to Be a Vexatious Litigant.” See June 11,
2015 Order, id (ECE No. 5); id. (ECF No. 1 at 27) (‘Demas Yan is determined to
bea aes litigant.”). We reiterate that finding here.

D. Yan's Repeated Violations of Circuit Rule 46-1.2

Finally Yan has repeatedly “fail[ed] to comply with rules or orders of this
Court.” oth Cin R. 46-2(a). Ninth Circuit Rule 46-1.2 provides that “fajny

attorney who causes a case to be docketed in this Court or who enters anCase: ee 11/01/2016, ID: 10181261, DktEntry: 7, Page 9 of 10

appearance in this Court, and who is not already admitted to the Bar of the Coust,
shall simultaneously apply for admission.” 9th Cir. R. 46-1.2. It is undisputed that
Yan submitted his first application for membership to the Ninth Circuit bar on June
29, 2016.

On fadiy 30, 2012, however, Yan “cause[d] a case to be docketed in this
Court” when he filed a pro se appeal in In re Demas Wai Yan, No 12-15204. In
that same case, Yan then entered an appearance to represent himself as counsel.

€

Id. (ECF No. 9). However, Yan did not “simultaneously apply for admission”

4
either of those times in clear violation of Circuit Rule 46-1.2. On March 18, 2015,
Yan again represented himself as counsel in opposing a petition for permission to

appeal in Demas Wai Yan, No. 15-80043, without applying for admission in

violation of Circuit Rule 46-1.2. See id. (ECF No. 3).

IN. CONCLUSION

Revocation of Yan’s bar membership is warranted because of Yan’s record
ip

of persistent misconduct unbecoming a member admitted to practice before our
Court. See Fed. R. App. P. 46(6)(1)(B). Yan has “faile{d] to comply with rules
... of this Court” and has “engage[d] in conduct violating applicable rules of

:
professional conduct.” 9th Cir. R. 46-2(a). It is evident that Yan lacks the “good

moral and professional character” for admission to the bar of the Ninth Circuit.

Fed. R. App. P. 46(a). Accordingly, it is hereby ORDERED that Yan’sCase: 160M, 11/01/2016, ID: 10181261, piney, Page 10 of 10

membership in the bar of the Ninth Circuit be rescinded effective on the date this
Order is filed.
A copy of this Order shall be furnished to the State Bar of California in
accordance with Circuit Rule 46-2(f).
The Clerk of the Court is directed to send this Final Order to the following:
(1) © Office of Chief Trial Counsel/Intake
i The State Bar of California
. 845 South Figueroa Street
“ Los Angeles, CA 90017-2515
(2) |Demas W. Yan
300 Frank Ogawa Plaza
Suite 218
Oakland, CA 94612

IT IS SO ORDERED.

10