Preview
1 KIRSCHENBAUM LAW, PC
JEFFREY B. KIRSCHENBAUM (SBN: 152290)
2 KRISTIN L. WILLIAMS (SBN: 312902)
328 15th Street ELECTRONICALLY
3 Oakland, CA 94612 FILED
Telephone: (510) 740-9260 Superior Court of California,
4 Email: Jeff@Kirschenbaumlaw.com County of San Francisco
09/19/2019
5 Attorneys for Plaintiff Clerk of the Court
TON KIANG RESTAURANT, INC. BY: CAROL BALISTRERI
6 Deputy Clerk
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 UNLIMITED CIVIL JURISDICTION
574262
11 TON KIANG RESTAURANT, INC. CASE NO. CGC-19-57462
XXXX
12 Plaintiff, PLAINTIFF TON KIANG’S NOTICE OF
EX PARTE APPLICATION FOR (A)
13 v. ORDER STAYING UNLAWFUL
DETAINER ACTION; OR (B) ORDER
14 WILLIAM WONG, WWJW FAMILY LLC, a SHORTENING TIME
California Limited Liability Company, and
15 DOES 1-10, inclusive
16 Defendants.
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This case is one of two cases currently pending before this Court between Ton Kiang
4 Restaurant, Inc. and WWJW Family, LLC. These cases are about the “apparent” owner of real
5 property seeking to evict the true owner, Ton Kiang Restaurant, Inc. (“Ton Kiang”). The real
6 property at issue is located at 5821 Geary Street in San Francisco (the “Subject Property”). Ton
7 Kiang has owned and operated a Chinese restaurant at the Subject Property since 1992.
8 The lead case, Ton Kiang Restaurant, Inc. v. William Wong, et al. (CGC-19-574262)
9 seeks to quiet title in the Subject Property. Plaintiff Ton Kiang alleges that it is the owner of all
10 beneficiary interests in the Subject Property, is in rightful possession thereof, and that defendants
11 William Wong and WWJW Family LLC (“WWJW”) are mere trustees with no right to evict Ton
12 Kiang. It will be referred to as the “Quiet Title Action.” The second case, WWJW Family LLC v.
13 Ton Kiang Restaurant, Inc. (CUD-19-664262), is an unlawful detainer action that was filed two
14 months after the Quiet Title Action. WWJW alleges that it is the legal owner of the Subject
15 Property and seeks to evict Ton Kiang from its rightful home since 1992. That case will be
16 referred to as the “Unlawful Detainer Action.”
17 The Unlawful Detainer Action is currently set for trial in this Court on September 30,
18 2019. If the Unlawful Detainer Action is heard before the Quiet Title Action, the issues relating
19 to title of the Subject Property will not be resolved, and Plaintiff will likely be wrongfully
20 dispossessed of its property. As such, it is necessary to grant Plaintiff’s ex parte application to
21 stay the trial in the Unlawful Detainer Action. Alternatively, the Court should grant a motion to
22 hear the Motion on shortened notice.
23 II. RELEVANT FACTS
24 A. Allegations of the Quiet Title Action
25 Ton Kiang commenced the Quiet Title Action in March 2019 seeking quiet title to the
26 Subject Property and filed its Verified First Amended Complaint on June 21, 2019 (the “QT
27 Complaint”). Ton Kiang also alleged other causes of action against defendants WWJW and
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 William Wong for breach of trust, breach of fiduciary duty, and declaratory and injunctive relief
2 arising out of defendants’ attempts to wrongfully evict Ton Kiang from the Subject Property.
3 Ton Kiang is a closely-held California corporation consisting entirely of family members
4 – 50% of the corporation is owned by the two parents and 50% is owned equally among six
5 siblings. Ton Kiang alleges that it purchased the Subject Property in November 1991 through
6 son Phillip Wong as nominee for the benefit of Ton Kiang (QT Complaint, ¶ 9), and that during
7 the time Phillip Wong held legal title, Ton Kiang reimbursed him for funds he expended in
8 making the purchase and in servicing the company’s debt. (Id., ¶ 10.) Ton Kiang purchased the
9 Subject Property for the express purpose of constructing and operating a Chinese restaurant
10 thereon. The restaurant was built-out in 1992 and has operated there ever since. Almost all
11 family members -- as co-venturers -- worked at the restaurant and reposed trust and confidence in
12 each other as they operated the restaurant. (Id., ¶ 13.)
13 Things changed in April 2010, when defendant William Wong pressured his elderly and
14 ailing parents to put legal title to the Subject Property in his name. William Wong claimed that,
15 as the eldest son, he was entitled to hold legal title for the benefit of the family corporation, and
16 he orally promised his parents that he would continue to be the nominee in the same way that his
17 brother Phillip was, i.e., that he would hold legal title to the Subject Property for the benefit of
18 Ton Kiang and the family’s restaurant business. (QT Complaint, ¶ 11.) As it did with nominee
19 Phillip Wong previously, Ton Kiang provided all monies involved in the transfer of title to
20 William Wong and in servicing the company’s debt. (Id.)
21 Now, in breach of his promise to hold title as nominee for Ton Kiang, and in
22 contravention of his fiduciary obligations to his fellow shareholders, co-venturers, parents, and
23 siblings, William Wong now seeks to evict Ton Kiang from the Subject Property and eviscerate
24 the very purpose for which it was purchased. Based upon public records filed with the California
25 Secretary of State, Ton Kiang believes that William Wong formed defendant WWJW as a vehicle
26 for holding title to the Subject Property and that William Wong in fact subsequently transferred
27 title to the Subject Property to WWJW. According to those public records, William Wong is the
28 sole member and sole manager of WWJW, as well as its alter ego. Ton Kiang seeks judgment
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 declaring Ton Kiang to be the sole legal and beneficial owner of the Subject Property; that all
2 interest in and title to the Subject Property be vested in Ton Kiang; and that William Wong and
3 WWJW be enjoined from interfering with Ton Kiang’s interest in the Subject Property.
4 B. Allegations of WWJW’s Action for Unlawful Detainer
5 On May 31, 2019, WWJW filed a complaint for unlawful detainer in case number CUD-
6 19-664262 (the “UD Complaint”), naming Ton Kiang as defendant and raising the same legal
7 issue as the Quiet Title Action. WWJW alleges that in September 2010, an entity called Shine
8 Properties LLC sold the Subject Property to William Wong and his wife Jane, who in turn
9 “subsequently granted the Subject Property to WWJW in March 2011.” (UD Complaint, ¶¶ 3, 4.)
10 WWJW, however, does not allege how or when Shine Properties LLC acquired the Subject
11 Property, the circumstances under which the Wongs purportedly purchased the Subject Property,
12 or the circumstances under which the Wongs purportedly granted the Subject Property to
13 WWJW. WWJW also alleges that in or about September 2010, Ton Kiang entered into a month-
14 to-month lease with WWJW’s predecessor-in-interest at $15,000 per month; the parties orally
15 modified the lease at some unspecified time to “either $15,000/month or $10,000/month plus
16 $5,000/month to be paid as wages”; and Ton Kiang “ceased making rental payments” sometime
17 in 2013. (UD Complaint, ¶¶ 6, 15.8.)
18 On July 16, 2019, Ton Kiang filed its answer in the Unlawful Detainer Action. For its
19 first affirmative defense, Ton Kiang alleged that neither WWJW nor its alter ego, William Wong,
20 is the true owner of the Subject Property but merely a “nominee holding the legal title in trust for
21 Ton Kiang.” More specifically, Ton Kiang alleged that it is the true owner; William Wong took
22 title to the Subject Property as a nominee; and William Wong “expressly promised to continue to
23 hold title as a nominee, in trust for Ton Kiang.” (Answer to UD Complaint, Attachment for Item
24 3(k), ¶ 3.) For its eighth affirmative defense, Ton Kiang alleged that it would be forced to litigate
25 complex issues, including issues relating to title, in a summary proceeding and will be denied due
26 process as a result. (Id.)
27 On September 9, 2019, Plaintiff filed a motion to consolidate the Unlawful Detainer
28 Action and the Quiet Title Action. On September 10, 2019, after receiving the Motion to
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 Consolidate, WWJW filed a Request to Set Trial Date in the UD Action. WWJW did not consult
2 Ton Kiang regarding their availability for trial or otherwise notify Ton Kiang that they would be
3 requesting a trial date.
4 On September 12, 2019, the Court set a trial date in the Unlawful Detainer Action of
5 September 30, 2019. On September 16, 2019, Ton Kiang filed a counter-request for a trial date
6 citing multiple conflicts and requesting a jury. On September 19, 2019, the Court served notice
7 of a September 30, 2019 trial date.
8 III. ARGUMENT
9 A. The Unlawful Detainer Action Should Be Stayed On The Ground That
10 Plaintiff’s Right To Relief Is Apparent From The Second Amended Complaint.
11 When an unlawful detainer proceeding and an unlimited action concerning title to the
12 property are simultaneously pending, the trial court in which the unlimited action is pending may
13 stay the unlawful detainer action until the issue of title is resolved in the unlimited action
14 (Martin-Bragg v. Moore, 219 Cal. App. 4th 367, 368.)
15 Unlawful detainer actions are generally limited to dealing only with the issue of right to
16 possession, “not other claims between the parties even if related to the property.” (Larson v. City
17 and County of San Francisco, (2011) 192 Cal. App. 4th 1263, 1297.) Related issues, including
18 those respecting the title of the property, cannot ordinarily be adjudicated in an unlawful detainer
19 action. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1072.)
20 However, when complex issues of title are involved, the parties’ constitutional rights to due
21 process in the litigation of those issues cannot be subordinated to the summary procedures of
22 unlawful detainer. (Lindsey v. Normet (2012) 405 US. 53, 64-66; Martin-Bragg v. Moore (2013)
23 219 Cal. App. 4th 367, 385.)
24 A stay of the unlawful detainer action is required under Martin-Bragg v. Moore where
25 there are complex issues regarding the ownership of the subject property. The Martin-Bragg
26 court held that the trial court had abused its discretion by denying the unlawful detainer
27 defendant’s repeated motions for consolidation or stay, and disregarding that party’s “legitimate
28 need for, and right to, time to prepare and to obtain reasonable discovery in advance of trial of the
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 admittedly complex issue raised by the parties’ conflicting claims or ownership or to require that
2 those complex issues by tried within the summary procedures designed for straightforward
3 unlawful detainer claims.” (Martin-Bragg, 219 Cal.App.4th at 389.)
4 Here, as in Martin-Bragg, the parties assert conflicting claims regarding ownership of the
5 Subject Property. Ton Kiang alleges a prima facie case that William Wong claimed that, as the
6 eldest son, he was entitled to hold legal title for the benefit of the family corporation, and he
7 orally promised his parents that he would continue to be the nominee in the same way that his
8 brother Phillip was, i.e., that he would hold legal title to the Subject Property for the benefit of
9 Ton Kiang and the family’s restaurant business. In the unlawful Detainer Action, WWJW alleges
10 that it is the owner of the Subject Property and bases its right to possession on those allegations.
11 Ton kiang anticipates that WWJW will assert a similar claim of ownership in its answer to Ton
12 Kiang’s SAC.
13 The conflicting claims regarding the ownership of the Subject Property must be resolved
14 before the trial in the Unlawful Detainer Action commences. Accordingly, the Court must grant
15 Plaintiff’s request to Stay the Unlawful Detainer Action.
16 B. The Court Should Grant Plaintiff’s Request for Ex Parte Relief Because
17 Irreparable Harm Will Occur in the Absence of A Stay.
18 An ex parte application should be granted where an applicant makes a factual showing of
19 irreparable harm or immediate danger. (Cal. Rules of Court, rule 3.1202(c); see Webb v. Webb
20 (2017) 12 Cal.App.5th 876, 879.) The facts and circumstances here demonstrate that there is a
21 significant risk of irreparable harm and immediate danger if Plaintiff’s ex parte application is
22 denied, and the Unlawful Detainer Action is not stayed.
23 First, Ton Kiang will incur irreparable harm is the Unlawful Detainer Action is not
24 stayed. In the Unlawful Detainer Action, WWJW alleges that it is the owner of the Subject
25 Property. Ownership of the Subject Property is, however, a contested issue which will be
26 adjudicated in the Quiet Title Action. If the Unlawful Detainer is not stayed, Ton Kiang will be
27 wrongfully dispossessed of its property rights prior to the final determination of this action.
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 Moreover, the risk of incurring such harm is immediate. On September 12, 2019, the
2 Court set the Unlawful Detainer Action for trial on September 30, 2019. On September 16, 2019,
3 Ton Kiang filed a Counter-Request for Trial and requested a jury trial. As of September 18,
4 2019, no alternative trial date has been set. Stated differently, without the Court’s intervention,
5 the issue of right to possession will likely be adjudicated because the issue of ownership is
6 resolved.
7 Because the risk of irreparable, immediate harm to Ton Kiang, the Court should grant Ton
8 Kiang’s request for a stay of the Unlawful Detainer Action on an ex parte basis.
9 C. If The Court Does Not Grant Plaintiff’s Ex Parte Application, It Should
10 Shorten The Time For Hearing On The Motion.
11 California Code of Civil Procedure §1005(b) states “all moving and supporting papers
12 shall be served and filed at least 16 days before the hearing.” However, the Court may shorten
13 the time for compliance on a showing of good cause. (Chignon v. Sims Service Center. Inc.
14 (1985) Cal. App. 3d 907, 915-16.)
15 Here, good cause exists for the Motion to be hearing on shortened time because the Trial
16 in the Unlawful Detainer Action is currently scheduled for September 30, 2019. The hearing on a
17 regularly noticed motion under CCP 1005(b) would necessarily occur after the trial in the
18 Unlawful Detainer Action. If the Motion for stay is not heard and decided before the trial in the
19 Unlawful Detainer Action, Ton Kiang will be wrongfully dispossessed of its property without a
20 full and fair hearing on the title of the Premises.
21 IV. CONCLUSION
22 For the foregoing reasons, Plaintiff respectfully requests that the Court grant the ex parte
23 application and issue an order staying the Unlawful Detainer Action by Defendant. In the
24 alternative, the Court should issue an order shortening time for the hearing on Ton Kiang’s
25 Motion to Stay the Unlawful Detainer Action.
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27 //
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
1 Dated: September 19, 2019 KIRSCHENBAUM LAW, PC
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3 KRISTIN L. WILLIAMS
Attorneys for Plaintiff TON KIANG
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PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER
ACTION; OR (B) ORDER SHORTENING TIME
Preview
1 KIRSCHENBAUM LAW, PC JEFFREY B. KIRSCHENBAUM (SBN: 152290) 2 KRISTIN L. WILLIAMS (SBN: 312902) 328 15th Street ELECTRONICALLY 3 Oakland, CA 94612 FILED Telephone: (510) 740-9260 Superior Court of California, 4 Email: Jeff@Kirschenbaumlaw.com County of San Francisco 09/19/2019 5 Attorneys for Plaintiff Clerk of the Court TON KIANG RESTAURANT, INC. BY: CAROL BALISTRERI 6 Deputy Clerk 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 UNLIMITED CIVIL JURISDICTION 574262 11 TON KIANG RESTAURANT, INC. CASE NO. CGC-19-57462 XXXX 12 Plaintiff, PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) 13 v. ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER 14 WILLIAM WONG, WWJW FAMILY LLC, a SHORTENING TIME California Limited Liability Company, and 15 DOES 1-10, inclusive 16 Defendants. 17 18 19 20 21 22 23 24 25 26 27 28 1 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This case is one of two cases currently pending before this Court between Ton Kiang 4 Restaurant, Inc. and WWJW Family, LLC. These cases are about the “apparent” owner of real 5 property seeking to evict the true owner, Ton Kiang Restaurant, Inc. (“Ton Kiang”). The real 6 property at issue is located at 5821 Geary Street in San Francisco (the “Subject Property”). Ton 7 Kiang has owned and operated a Chinese restaurant at the Subject Property since 1992. 8 The lead case, Ton Kiang Restaurant, Inc. v. William Wong, et al. (CGC-19-574262) 9 seeks to quiet title in the Subject Property. Plaintiff Ton Kiang alleges that it is the owner of all 10 beneficiary interests in the Subject Property, is in rightful possession thereof, and that defendants 11 William Wong and WWJW Family LLC (“WWJW”) are mere trustees with no right to evict Ton 12 Kiang. It will be referred to as the “Quiet Title Action.” The second case, WWJW Family LLC v. 13 Ton Kiang Restaurant, Inc. (CUD-19-664262), is an unlawful detainer action that was filed two 14 months after the Quiet Title Action. WWJW alleges that it is the legal owner of the Subject 15 Property and seeks to evict Ton Kiang from its rightful home since 1992. That case will be 16 referred to as the “Unlawful Detainer Action.” 17 The Unlawful Detainer Action is currently set for trial in this Court on September 30, 18 2019. If the Unlawful Detainer Action is heard before the Quiet Title Action, the issues relating 19 to title of the Subject Property will not be resolved, and Plaintiff will likely be wrongfully 20 dispossessed of its property. As such, it is necessary to grant Plaintiff’s ex parte application to 21 stay the trial in the Unlawful Detainer Action. Alternatively, the Court should grant a motion to 22 hear the Motion on shortened notice. 23 II. RELEVANT FACTS 24 A. Allegations of the Quiet Title Action 25 Ton Kiang commenced the Quiet Title Action in March 2019 seeking quiet title to the 26 Subject Property and filed its Verified First Amended Complaint on June 21, 2019 (the “QT 27 Complaint”). Ton Kiang also alleged other causes of action against defendants WWJW and 28 2 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 William Wong for breach of trust, breach of fiduciary duty, and declaratory and injunctive relief 2 arising out of defendants’ attempts to wrongfully evict Ton Kiang from the Subject Property. 3 Ton Kiang is a closely-held California corporation consisting entirely of family members 4 – 50% of the corporation is owned by the two parents and 50% is owned equally among six 5 siblings. Ton Kiang alleges that it purchased the Subject Property in November 1991 through 6 son Phillip Wong as nominee for the benefit of Ton Kiang (QT Complaint, ¶ 9), and that during 7 the time Phillip Wong held legal title, Ton Kiang reimbursed him for funds he expended in 8 making the purchase and in servicing the company’s debt. (Id., ¶ 10.) Ton Kiang purchased the 9 Subject Property for the express purpose of constructing and operating a Chinese restaurant 10 thereon. The restaurant was built-out in 1992 and has operated there ever since. Almost all 11 family members -- as co-venturers -- worked at the restaurant and reposed trust and confidence in 12 each other as they operated the restaurant. (Id., ¶ 13.) 13 Things changed in April 2010, when defendant William Wong pressured his elderly and 14 ailing parents to put legal title to the Subject Property in his name. William Wong claimed that, 15 as the eldest son, he was entitled to hold legal title for the benefit of the family corporation, and 16 he orally promised his parents that he would continue to be the nominee in the same way that his 17 brother Phillip was, i.e., that he would hold legal title to the Subject Property for the benefit of 18 Ton Kiang and the family’s restaurant business. (QT Complaint, ¶ 11.) As it did with nominee 19 Phillip Wong previously, Ton Kiang provided all monies involved in the transfer of title to 20 William Wong and in servicing the company’s debt. (Id.) 21 Now, in breach of his promise to hold title as nominee for Ton Kiang, and in 22 contravention of his fiduciary obligations to his fellow shareholders, co-venturers, parents, and 23 siblings, William Wong now seeks to evict Ton Kiang from the Subject Property and eviscerate 24 the very purpose for which it was purchased. Based upon public records filed with the California 25 Secretary of State, Ton Kiang believes that William Wong formed defendant WWJW as a vehicle 26 for holding title to the Subject Property and that William Wong in fact subsequently transferred 27 title to the Subject Property to WWJW. According to those public records, William Wong is the 28 sole member and sole manager of WWJW, as well as its alter ego. Ton Kiang seeks judgment 3 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 declaring Ton Kiang to be the sole legal and beneficial owner of the Subject Property; that all 2 interest in and title to the Subject Property be vested in Ton Kiang; and that William Wong and 3 WWJW be enjoined from interfering with Ton Kiang’s interest in the Subject Property. 4 B. Allegations of WWJW’s Action for Unlawful Detainer 5 On May 31, 2019, WWJW filed a complaint for unlawful detainer in case number CUD- 6 19-664262 (the “UD Complaint”), naming Ton Kiang as defendant and raising the same legal 7 issue as the Quiet Title Action. WWJW alleges that in September 2010, an entity called Shine 8 Properties LLC sold the Subject Property to William Wong and his wife Jane, who in turn 9 “subsequently granted the Subject Property to WWJW in March 2011.” (UD Complaint, ¶¶ 3, 4.) 10 WWJW, however, does not allege how or when Shine Properties LLC acquired the Subject 11 Property, the circumstances under which the Wongs purportedly purchased the Subject Property, 12 or the circumstances under which the Wongs purportedly granted the Subject Property to 13 WWJW. WWJW also alleges that in or about September 2010, Ton Kiang entered into a month- 14 to-month lease with WWJW’s predecessor-in-interest at $15,000 per month; the parties orally 15 modified the lease at some unspecified time to “either $15,000/month or $10,000/month plus 16 $5,000/month to be paid as wages”; and Ton Kiang “ceased making rental payments” sometime 17 in 2013. (UD Complaint, ¶¶ 6, 15.8.) 18 On July 16, 2019, Ton Kiang filed its answer in the Unlawful Detainer Action. For its 19 first affirmative defense, Ton Kiang alleged that neither WWJW nor its alter ego, William Wong, 20 is the true owner of the Subject Property but merely a “nominee holding the legal title in trust for 21 Ton Kiang.” More specifically, Ton Kiang alleged that it is the true owner; William Wong took 22 title to the Subject Property as a nominee; and William Wong “expressly promised to continue to 23 hold title as a nominee, in trust for Ton Kiang.” (Answer to UD Complaint, Attachment for Item 24 3(k), ¶ 3.) For its eighth affirmative defense, Ton Kiang alleged that it would be forced to litigate 25 complex issues, including issues relating to title, in a summary proceeding and will be denied due 26 process as a result. (Id.) 27 On September 9, 2019, Plaintiff filed a motion to consolidate the Unlawful Detainer 28 Action and the Quiet Title Action. On September 10, 2019, after receiving the Motion to 4 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 Consolidate, WWJW filed a Request to Set Trial Date in the UD Action. WWJW did not consult 2 Ton Kiang regarding their availability for trial or otherwise notify Ton Kiang that they would be 3 requesting a trial date. 4 On September 12, 2019, the Court set a trial date in the Unlawful Detainer Action of 5 September 30, 2019. On September 16, 2019, Ton Kiang filed a counter-request for a trial date 6 citing multiple conflicts and requesting a jury. On September 19, 2019, the Court served notice 7 of a September 30, 2019 trial date. 8 III. ARGUMENT 9 A. The Unlawful Detainer Action Should Be Stayed On The Ground That 10 Plaintiff’s Right To Relief Is Apparent From The Second Amended Complaint. 11 When an unlawful detainer proceeding and an unlimited action concerning title to the 12 property are simultaneously pending, the trial court in which the unlimited action is pending may 13 stay the unlawful detainer action until the issue of title is resolved in the unlimited action 14 (Martin-Bragg v. Moore, 219 Cal. App. 4th 367, 368.) 15 Unlawful detainer actions are generally limited to dealing only with the issue of right to 16 possession, “not other claims between the parties even if related to the property.” (Larson v. City 17 and County of San Francisco, (2011) 192 Cal. App. 4th 1263, 1297.) Related issues, including 18 those respecting the title of the property, cannot ordinarily be adjudicated in an unlawful detainer 19 action. (Drybread v. Chipain Chiropractic Corp. (2007) 151 Cal.App.4th 1063, 1072.) 20 However, when complex issues of title are involved, the parties’ constitutional rights to due 21 process in the litigation of those issues cannot be subordinated to the summary procedures of 22 unlawful detainer. (Lindsey v. Normet (2012) 405 US. 53, 64-66; Martin-Bragg v. Moore (2013) 23 219 Cal. App. 4th 367, 385.) 24 A stay of the unlawful detainer action is required under Martin-Bragg v. Moore where 25 there are complex issues regarding the ownership of the subject property. The Martin-Bragg 26 court held that the trial court had abused its discretion by denying the unlawful detainer 27 defendant’s repeated motions for consolidation or stay, and disregarding that party’s “legitimate 28 need for, and right to, time to prepare and to obtain reasonable discovery in advance of trial of the 5 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 admittedly complex issue raised by the parties’ conflicting claims or ownership or to require that 2 those complex issues by tried within the summary procedures designed for straightforward 3 unlawful detainer claims.” (Martin-Bragg, 219 Cal.App.4th at 389.) 4 Here, as in Martin-Bragg, the parties assert conflicting claims regarding ownership of the 5 Subject Property. Ton Kiang alleges a prima facie case that William Wong claimed that, as the 6 eldest son, he was entitled to hold legal title for the benefit of the family corporation, and he 7 orally promised his parents that he would continue to be the nominee in the same way that his 8 brother Phillip was, i.e., that he would hold legal title to the Subject Property for the benefit of 9 Ton Kiang and the family’s restaurant business. In the unlawful Detainer Action, WWJW alleges 10 that it is the owner of the Subject Property and bases its right to possession on those allegations. 11 Ton kiang anticipates that WWJW will assert a similar claim of ownership in its answer to Ton 12 Kiang’s SAC. 13 The conflicting claims regarding the ownership of the Subject Property must be resolved 14 before the trial in the Unlawful Detainer Action commences. Accordingly, the Court must grant 15 Plaintiff’s request to Stay the Unlawful Detainer Action. 16 B. The Court Should Grant Plaintiff’s Request for Ex Parte Relief Because 17 Irreparable Harm Will Occur in the Absence of A Stay. 18 An ex parte application should be granted where an applicant makes a factual showing of 19 irreparable harm or immediate danger. (Cal. Rules of Court, rule 3.1202(c); see Webb v. Webb 20 (2017) 12 Cal.App.5th 876, 879.) The facts and circumstances here demonstrate that there is a 21 significant risk of irreparable harm and immediate danger if Plaintiff’s ex parte application is 22 denied, and the Unlawful Detainer Action is not stayed. 23 First, Ton Kiang will incur irreparable harm is the Unlawful Detainer Action is not 24 stayed. In the Unlawful Detainer Action, WWJW alleges that it is the owner of the Subject 25 Property. Ownership of the Subject Property is, however, a contested issue which will be 26 adjudicated in the Quiet Title Action. If the Unlawful Detainer is not stayed, Ton Kiang will be 27 wrongfully dispossessed of its property rights prior to the final determination of this action. 28 6 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 Moreover, the risk of incurring such harm is immediate. On September 12, 2019, the 2 Court set the Unlawful Detainer Action for trial on September 30, 2019. On September 16, 2019, 3 Ton Kiang filed a Counter-Request for Trial and requested a jury trial. As of September 18, 4 2019, no alternative trial date has been set. Stated differently, without the Court’s intervention, 5 the issue of right to possession will likely be adjudicated because the issue of ownership is 6 resolved. 7 Because the risk of irreparable, immediate harm to Ton Kiang, the Court should grant Ton 8 Kiang’s request for a stay of the Unlawful Detainer Action on an ex parte basis. 9 C. If The Court Does Not Grant Plaintiff’s Ex Parte Application, It Should 10 Shorten The Time For Hearing On The Motion. 11 California Code of Civil Procedure §1005(b) states “all moving and supporting papers 12 shall be served and filed at least 16 days before the hearing.” However, the Court may shorten 13 the time for compliance on a showing of good cause. (Chignon v. Sims Service Center. Inc. 14 (1985) Cal. App. 3d 907, 915-16.) 15 Here, good cause exists for the Motion to be hearing on shortened time because the Trial 16 in the Unlawful Detainer Action is currently scheduled for September 30, 2019. The hearing on a 17 regularly noticed motion under CCP 1005(b) would necessarily occur after the trial in the 18 Unlawful Detainer Action. If the Motion for stay is not heard and decided before the trial in the 19 Unlawful Detainer Action, Ton Kiang will be wrongfully dispossessed of its property without a 20 full and fair hearing on the title of the Premises. 21 IV. CONCLUSION 22 For the foregoing reasons, Plaintiff respectfully requests that the Court grant the ex parte 23 application and issue an order staying the Unlawful Detainer Action by Defendant. In the 24 alternative, the Court should issue an order shortening time for the hearing on Ton Kiang’s 25 Motion to Stay the Unlawful Detainer Action. 26 // 27 // 28 // 7 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME 1 Dated: September 19, 2019 KIRSCHENBAUM LAW, PC 2 _________________________________ 3 KRISTIN L. WILLIAMS Attorneys for Plaintiff TON KIANG 4 RESTAURANT, INC. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF TON KIANG’S NOTICE OF EX PARTE APPLICATION FOR (A) ORDER STAYING UNLAWFUL DETAINER ACTION; OR (B) ORDER SHORTENING TIME