Preview
Phil Foster (SBN 262120)
TOUR-SARKISSIAN LAW OFFICES, LLP
211 Gough Street, Third Floor
San Francisco, CA 94102
(415) 626-7744 telephone
(415) 626-8189 facsimile
phil@tslo.com
Attorneys for Respondent
JEANNE KWONG
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/19/2018
Clerk of the Court
BY: MICHAEL RAYRAY
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PROBATE DIVISION
JENNIFER SHUK-HAN KWOK,
Petitioner,
v.
JEANNE KWONG, individually and as a
former trustee of the Stan Kwong Irrevocable
Trust H,
Respondent.
AND RELATED CROSS-PETITIONS.
Case No. PES-10-293505
RESPONDENT JEANNE KWONG’S
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO DISMISS FOR FAILURE TO BRING
CASE TO TRIAL
[Code Civ. Proc. § 583.310]
[Code Civ. Proc. § 583.360(a)]
Date:
Time:
Dept.
Location:
Judge:
Action filed:
Trial date:
May 9, 2018
Wednesday
2:00 PM
204
400 McAllister Street
San Francisco, CA 94102
Hon. John K. Stewart
May 12, 2010
not set
RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALRespondent JEANNE KWONG (“Jeanne”) submits the following Memorandum of Points and
Authorities in support of the Motion To Dismiss For Failure To Bring Case To Trial.
I. INTRODUCTION.
Jeanne seeks an order dismissing this case pursuant to Code Civ. Proc. § 583.310 and
583.360(a) on the grounds that Petitioner JENNIFER SHUK-HAN KWOK (“Petitioner”) has failed to
bring this case to trial within five years after the case was commenced.
This case was filed on May 12, 2010, and the 5-year statute (as twice extended by written
stipulation of the parties) expired on September 25, 2017.
Over 175 days have passed since the 5-year statute ran, and only now, simultaneous with
Jeanne requesting a hearing date on this motion to dismiss, has Petitioner taken the first step toward
seeking a trial date.
For reasons known to the parties in this case (discussed below), Petitioner has kept this case on
ice while for years pursuing her multiple other probate adversary petitions and civil actions that contain
claims inconsistent with Petitioner’s damages claim in this case. Petitioner’s dilatory conduct has now
run afoul of the technical requirements in Code Civ. Proc § 583.360, and dismissal is required.
Il. STATEMENT OF FACTS.
A. Background.
Petitioner is the surviving spouse of Decedent STAN KWONG (“Stan”), who died testate on
July 8, 2009 with a net estate of an approximate $21 million. Stan’s estate plan included various trusts,
a pourover will, and life insurance policies collectively designed to pass an approximate $17.5 million
of Stan’s net estate to Petitioner and $3.5 million (the amount of Stan’s exemption from federal estate
tax) to other members of Stan’s family including Stan’s mother, sister Jeanne (moving party), four
nieces, and two children.
In the years since Stan’s death, Petitioner has commenced 17 probate proceedings, civil actions,
and appellate matters challenging the $3.5 million Stan left to persons other than Petitioner. These
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALlitigation matters all originated in this Court and for the most part were filed under the following case
numbers: PES-09-292733; PES-09-293019; PES-10-293505; CGC-14-537241; and CGC-16-556039.
B. The instant case.
One of the earliest challenges to the $3.5 million left to Stan’s family was the Petition By
Beneficiary To Recover Benefits Of Insurance Proceeds From Trustee On Claims Of Breach Of
Fiduciary Duty, Negligence And Fraud (“Petition”) filed by Petitioner in this case on May 12, 2010. A
true and correct copy of the Petition is attached as Exhibit “A” to the Request For Judicial Notice
(“RIN”) filed herewith.
The Petition challenges a portion of the $3.5 million that Stan left to his mother, namely, a $1
million life insurance policy on which Stan had designated his mother as beneficiary. Petitioner alleges
that, prior to death, Stan wanted to change the beneficiary on the policy from his mother to a trust for
Petitioner. Petitioner alleges Stan tasked his sister Jeanne (the co-trustee of several trusts established
by Stan) with making the change in beneficiary, but that Jeanne failed to do so. Petitioner alleges that
since Stan’s mother remained the beneficiary as of Stan’s death, the $1 million was wrongfully paid to
Stan’s mother instead of to an insurance trust for Petitioner.
To distinguish this proceeding from Petitioner’s other cases, the parties often refer to this case
as the “Insurance Trust Case” or the “Life Insurance Case.”
Cc. Cross-claims for indemnity.
Petitioner’s filing of the Petition prompted the filing of multiple so-called “cross-petitions”
seeking indemnity and declaratory relief between and among the various respondents and Petitioner:
. on June 3, 2010, Jeanne filed a “cross-petition” claiming indemnity and declaratory
relief against Petitioner and Respondent FENG OUYANG (“Feng”), a true and correct
copy of which is attached Exhibit “B” to the RIN;
. on June 15, 2010, Jeanne amended her cross-petition to join Respondent GARY C.
WONG (“Gary”) in this action. A true and correct copy of Jeanne’s amended cross-
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALpetition is attached as Exhibit “C” to the RJN filed herewith;
° on July 16, 2010, Respondent Feng Ouyang filed a cross-petition claiming indemnity
and declaratory relief against Jeanne and Gary, a true and correct copy of which is
attached as Exhibit “D” to the RJN filed herewith;
. on August 16, 2010, Respondent Gary Wong filed a cross-petition for indemnity and
declaratory relief against Petitioner, Jeanne, and Feng, a true and correct copy of which
is attached as Exhibit “E” to the RJN filed herewith; and
. on September 27, 2010, Petitioner filed a cross-petition for negligence, breach of trust,
contribution, and indemnity against Gary, a true and correct copy of which is attached as
Exhibit “F” to the RJN filed herewith.
D. Lack of prosecution.
Once all parties had appeared in this case, the case took a back seat to the other suits that
Petitioner filed. Petitioner actively pursued her other cases, especially her later-filed cases, while
appearing to lose interest in this case.
For the parties and counsel involved, Petitioner’s loss of interest came as little surprise given
evidence that came out in discovery early on showing that it was Petitioner herself (a life insurance
agent) who had sold the subject $1 million life policy to Stan in 1991, Petitioner who had designated
Stan’s mother (not any trust) as the beneficiary, and Petitioner who remained the insurance company’s
“agent of record” receiving commisions on the policy until Stan’s death or just prior to death.
Evidence also came out showing that Petitioner’s designation of Stan’s mother as the policy
beneficiary was not only what Stan had actually wanted but also that it was what Stan still wanted up to
and through the time of his death.
But Petitioner’s loss of interest in this case was also prompted (or necessitated) by Petitioner’s
claims in her other cases that were inconsistent with her damages claim in this case. At pp.5:26-6:1 of
a probate adversary petition filed by Petitioner on May 14, 2010 in Case No. PES-09-293019 (a true
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALand correct copy of which is attached as Exhibit “G” to the RJN), Petitioner conceded that the $1
million life insurance paid to Stan’s mother did not actually reduce the total amount left to Petitioner
by Stan because, as pled, the life insurance was part of the $3.5 million that Stan left to other members
of his family: “The estate tax exemption available to decedent’s estate is $3.5 million. Life
insurance proceeds and certain joint accounts, which total about $1.2 million, have passed
directly to beneficiaries other than Petitioner and decedent’s minor children, and have used a
portion of decedent’s estate tax exemption.”
Petitioner aggressively pursued her claims in the May 14, 2010 petition and other related
petitions while placing the Insurance Trust Case (with its inconsistent damages claim) on ice, leaving
this case all but forgotten until spring 2015 when the 5-year statute in CCP § 583.310 was set to run on
May 12, 2015.
D. Stipulation to extend 5-year statute.
In April 2015, Petitioner requested, and respondents agreed to, a stipulation extending the S-
year statute by two years. A true and correct copy of the parties’ Stipulation To Extend 5-Year Statute
To Bring Action To Trial is attached as Exhibit “A” to the Declaration of Counsel Phil Foster
(“Decl.Foster”) filed herewith.
The stipulation provided in relevant part that “the time to bring the Petition and cross-claims to
trial for purposes of the 5-year statute of limitation in Section 583.310 of the Code of Civil Procedure
shall be extended by two years from May 12, 2015 to May 12, 2017” ({ 1) and that “the parties waive
the right to seek dismissal of the Petition and cross-claims pursuant to Section 583.310 of the Code of
Civil Procedure at any time prior to May 12, 2017” (3). “[O]n May 12, 2017 and/or on any date
thereafter, Respondents shall be entitled to seek dismissal, and shall be relieved of the waiver of the
right to seek dismissal, of the Petition pursuant to the 5-year statute of limitation in Section 583.310 of
the Code of Civil Procedure” ({ 4).
Over a year then passed with no further activity on this case.
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALE. Second stipulation extending 5-year statute.
As of the status conference on June 17, 2016 for all of Petitioner’s case, this case was by far the
oldest of Petitioner’s then-pending cases and was set for trial on the civil calendar in the Presiding
Judge’s Department 206 on February 27, 2017 (still within the 2-year extension of the 5-year statute).
Petitioner was not however interested in trying the case, and during a status conference on
January 27, 2017 in Case No. PES-09-293019, Petitioner wanted 3 other (overlapping) petitions to be
tried in lieu of the Insurance Trust Case. Petitioner got what she wanted, and those 3 petitions took the
February 27, 2017 trial date, with the Insurance Trust Case re-set for trial call on April 17, 2017 in
Dept. 206.
On April 17, 2017, the Presiding Judge in Department 206 assigned this case for trial on June 1,
2017 in Department 606 with Judge Cheng (Judge Cheng had remained the assigned case management
judge for all of Petitioner’s cases even after his re-assignment from the probate department to civil trial
department 606).
Petitioner thereafter filed an application for a trial continuance based on unavailability of a trial
expert, which resulted in all parties stipulating to a continued trial date of June 26, 2017. A true and
correct copy of the stipulation is attached as Exhibit “H” to the RJN filed herewith.
But, at a status conference in Case No. PES-09-293019 on May 19, 2017 (at which neither
counsel for Respondent Gary Wong nor counsel for Respondent Feng Ouyang were present), Judge
Cheng indicated he was not available on the continued trial date, prompting the parties who were
present (Petitioner and Jeanne) to propose September 25, 2017 as a continued trial date.
Then, at a status conference in Case No. PES-09-293019 on August 25, 2017 (again at which
counsel for neither Respondent Gary Wong nor Respondent Feng Ouyang were present), the parties
learned that Judge Cheng did not have availability for a trial until early 2018. Judge Cheng directed
Petitioner to return to the Presiding Judge in Department 206 for a new trial assignment. A true and
correct copy of the court reporter’s transcript of the August 25, 2017 status conference is attached as
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALExhibit “C” to the Decl.Foster.
This case was then dropped from the Court’s calendar (as indicated by the minutes entered in
Case No. PES-09-293019 — no minutes were apparently entered in the instant case’s case number for
the August 25, 2017 case management conference).
The 5-year statute expired on September 25, 2017.
F Petitioner did not seek a trial date.
Even after Judge Cheng directed Petitioner on the record to seek a new trial date, Petitioner still
made no attempt to do so for the next 202 days, well after the 5-year statute had expired.
During that time, in November 2017, while resolving unrelated issues in Case No. PES-09-
293019, Petitioner and Jeanne executed a written stipulation on or about November 21, 2017 that
provided for a stay of prosecution of all of Petitioner’s actions and proceedings until June 15, 2018
“EXCEPT as pertains to the insurance trust dispute known as Kwok v. Kwong, et al., Superior
Court of San Francisco, Case No. PES-10-293505.” A true and correct copy of the Stipulation And
[Proposed] Order For Final Payments On Judgment is attached as Exhibit “E” to the Decl.Foster filed
herewith.
Since the 5-year statute (as extended) had already run on September 25, 2017, Jeanne did not
agree to a further stay of the Insurance Trust Case, as was memorialized in this stipulation at { 3:
“Upon the Trustee’s payment to Judgment Creditors set forth in Paragraph 1 above, the Parties shall
forbear and refrain from filing and/or prosecuting any and all claims, actions, and proceedings against
the Trustee/Trust until the earlier of June 15, 2018 or 30 days after issuance of remittitur in the
Disclaimer Appeal. The insurance trust dispute known as Kwok v. Kwong, et al., Superior Court
of San Francisco, Case No. PES-10-293505 is excluded from this provision.” [emphasis added]
Fully aware that the 5-year statute had run, and that Jeanne did not agree to extend the statute
any further, Petitioner still made no attempt to seek a trial date in this case.
Then, after Jeanne had already prepared this motion and was waiting to hear back from the
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALclerk of Dept. 204 with a hearing date, a paralegal from the law firm representing Petitioner requested
the parties’ availability for a further case management conference in this case with Judge Cheng.
As of the date of filing this motion, 175 days have now passed since the 5-year statute (as
extended) expired on September 25, 2017, and a total of 206 days have passed since Judge Cheng
directed Petitioner to seek a new trial assignment from the Presiding Judge in Department 206.
Ill, LEGAL STANDARD.
“An action shall be brought to trial within five years after the action is commenced against the
defendant.” Code Civ. Proc. § 583.310. “The purpose of the five-year dismissal statute is to prevent
the prosecution of stale claims where defendants could be prejudiced by loss of evidence and
diminished memories of witnesses. The statute also protects defendants from the annoyance of having
unmeritorious claims against them unresolved for unreasonable periods of time.” Munoz v. City of
Tracy, 238 Cal.App.4th 354, 358-359 (2015) [citation omitted].
Code Civ. Proc. § 583.310 applies in probate adversary proceedings. “An action is an ordinary
proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement,
or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”
Code Civ. Proc. § 22. This includes the typical adversary proceeding in probate. Estate of Morrison,
125 Cal.App. 504, 507-508 (1932) [five-year statute applies to will contest]; see also Petition of Vladu,
175 Cal.App.2d 50, 52 (1959): “[w]e see no good reason why [the five-year dismissal statute] should
not apply to special proceedings if they are adversary in nature and require the trial of issues.”
Also, Prob. Code § 1000(a) incorporates part 2 of the Code of Civil Procedure, which includes
Code Civ. Proc. § 583.310 et seg.: “Except to the extent that this code provides applicable rules, the
tules of practice applicable to civil actions, including discovery proceedings and proceedings under
Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and
constitute the rules of practice in, proceedings under this code.”
1
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALIV. LEGAL ANALYSIS.
A. Respondent is entitled to an order dismissing this action.
“An action shall be dismissed by the court on its own motion or on motion of the defendant,
after notice to the parties, if the action is not brought to trial within the time prescribed in this article.”
Code Civ. Proc. § 583.360(a). “An action shall be brought to trial within five years after the action is
commenced against the defendant.” Code Civ. Proc. § 583.310.
Here, with the Petition filed on May 12, 2010, the 5-year statute under CCP § 583.310 was
originally set to run on May 12, 2015. The statute was then extended by written stipulation to May 12,
2017. While within the extension period, the case was set for trial, although the parties stipulated (at
Petitioner’s request) to a later trial date of June 26, 2017, which was outside the extension period.
Although no further extensions of the 5-year statute were stipulated to after June 26, 2017, the
parties did (orally) agree to a trial date of September 25, 2017 on the condition that Judge Cheng was
available. When Judge Cheng advised on August 25, 2017 that he was not available, this case was
taken off calendar, and Judge Cheng directed Petitioner on the record to seek a new trial assignment
from the Presiding Judge in Department 206. Petitioner did not do so, and Petitioner has never sought
a further stipulation to extend the 5-year statute.
The 5-year statute (as extended) ran on September 25, 2017. As of the date of filing this
motion, 175 days have passed since the 5-year statute’s expiration, and this case still remains off
calendar, with no trial date set, and no assignment to any department (except this case does remain
assigned to Judge Cheng for case management).
This case is now subject to dismissal under Code Civ. Proc. § 583.360 for failure to bring to
trial. See, e.g., Hartman v. Santamarina, 30 Cal.3d 762 (1983) [a case is deemed brought to trial
within the meaning of the five-year dismissal statute when the jury is sworn in a jury trial or when the
first witness is sworn in a nonjury trial].
For the reasons set forth above, Jeanne respectfully requests an order dismissing this case.
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RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALB. Petitioner has not been diligent in prosecuting this case.
“{A] plaintiff has a duty to exercise reasonable diligence to insure that a case is brought to trial
or other conclusion within statutory time constraints.” Hughes v. Kimble, 5 Cal.App.4th 59, 70 (1992)
[citations omitted]. “A plaintiff has an obligation to monitor the case in the trial court, to keep track of
relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred.
This obligation of diligence increases as the five-year deadline approaches.” Jordan v, Superstar
Sandcars, 182 Cal.App.4th 1416, 1422 (2010) [citations omitted].
Here, the obligation to bring this case to trial was on Petitioner. When, on August 25, 2017,
the Court directed Petitioner (on the record) to return to the Presiding Judge in Department 206 to seek
a trial assignment, Petitioner had the duty to do so, but chose not to.
Petitioner’s inaction continued up to and through September 25, 2017 when the 5-year statute
(as extended) ran. Petitioner’s continued inaction even thereafter evidenced a conscious decision to let
this case go — at least until March 15, 2018 when Petitioner requested the parties’ availability for
further case management, just shortly after Jeanne had requested a hearing date on this motion earlier
that same day.
Petitioner’s dilatory conduct has run afoul of Code Civ. Proc. § 583.360, and dismissal is now
required.
IV. CONCLUSION.
For the reasons set forth above, Respondent respectfully requests an order dismissing this case
pursuant to Code Civ. Proc. § 583.310 and 583.360(a) on the grounds that Petitioner failed to bring this
case to trial within five years after it was commenced.
March 17, 2018. TOUR-S Is LAW OFFICES, LLP
LO
By: 7
’ PHIL FOSTER
Attorneys for Respondent
JEANNE KWONG
9
RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIAL
Preview
Phil Foster (SBN 262120) TOUR-SARKISSIAN LAW OFFICES, LLP 211 Gough Street, Third Floor San Francisco, CA 94102 (415) 626-7744 telephone (415) 626-8189 facsimile phil@tslo.com Attorneys for Respondent JEANNE KWONG ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/19/2018 Clerk of the Court BY: MICHAEL RAYRAY Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO PROBATE DIVISION JENNIFER SHUK-HAN KWOK, Petitioner, v. JEANNE KWONG, individually and as a former trustee of the Stan Kwong Irrevocable Trust H, Respondent. AND RELATED CROSS-PETITIONS. Case No. PES-10-293505 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIAL [Code Civ. Proc. § 583.310] [Code Civ. Proc. § 583.360(a)] Date: Time: Dept. Location: Judge: Action filed: Trial date: May 9, 2018 Wednesday 2:00 PM 204 400 McAllister Street San Francisco, CA 94102 Hon. John K. Stewart May 12, 2010 not set RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALRespondent JEANNE KWONG (“Jeanne”) submits the following Memorandum of Points and Authorities in support of the Motion To Dismiss For Failure To Bring Case To Trial. I. INTRODUCTION. Jeanne seeks an order dismissing this case pursuant to Code Civ. Proc. § 583.310 and 583.360(a) on the grounds that Petitioner JENNIFER SHUK-HAN KWOK (“Petitioner”) has failed to bring this case to trial within five years after the case was commenced. This case was filed on May 12, 2010, and the 5-year statute (as twice extended by written stipulation of the parties) expired on September 25, 2017. Over 175 days have passed since the 5-year statute ran, and only now, simultaneous with Jeanne requesting a hearing date on this motion to dismiss, has Petitioner taken the first step toward seeking a trial date. For reasons known to the parties in this case (discussed below), Petitioner has kept this case on ice while for years pursuing her multiple other probate adversary petitions and civil actions that contain claims inconsistent with Petitioner’s damages claim in this case. Petitioner’s dilatory conduct has now run afoul of the technical requirements in Code Civ. Proc § 583.360, and dismissal is required. Il. STATEMENT OF FACTS. A. Background. Petitioner is the surviving spouse of Decedent STAN KWONG (“Stan”), who died testate on July 8, 2009 with a net estate of an approximate $21 million. Stan’s estate plan included various trusts, a pourover will, and life insurance policies collectively designed to pass an approximate $17.5 million of Stan’s net estate to Petitioner and $3.5 million (the amount of Stan’s exemption from federal estate tax) to other members of Stan’s family including Stan’s mother, sister Jeanne (moving party), four nieces, and two children. In the years since Stan’s death, Petitioner has commenced 17 probate proceedings, civil actions, and appellate matters challenging the $3.5 million Stan left to persons other than Petitioner. These 1 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALlitigation matters all originated in this Court and for the most part were filed under the following case numbers: PES-09-292733; PES-09-293019; PES-10-293505; CGC-14-537241; and CGC-16-556039. B. The instant case. One of the earliest challenges to the $3.5 million left to Stan’s family was the Petition By Beneficiary To Recover Benefits Of Insurance Proceeds From Trustee On Claims Of Breach Of Fiduciary Duty, Negligence And Fraud (“Petition”) filed by Petitioner in this case on May 12, 2010. A true and correct copy of the Petition is attached as Exhibit “A” to the Request For Judicial Notice (“RIN”) filed herewith. The Petition challenges a portion of the $3.5 million that Stan left to his mother, namely, a $1 million life insurance policy on which Stan had designated his mother as beneficiary. Petitioner alleges that, prior to death, Stan wanted to change the beneficiary on the policy from his mother to a trust for Petitioner. Petitioner alleges Stan tasked his sister Jeanne (the co-trustee of several trusts established by Stan) with making the change in beneficiary, but that Jeanne failed to do so. Petitioner alleges that since Stan’s mother remained the beneficiary as of Stan’s death, the $1 million was wrongfully paid to Stan’s mother instead of to an insurance trust for Petitioner. To distinguish this proceeding from Petitioner’s other cases, the parties often refer to this case as the “Insurance Trust Case” or the “Life Insurance Case.” Cc. Cross-claims for indemnity. Petitioner’s filing of the Petition prompted the filing of multiple so-called “cross-petitions” seeking indemnity and declaratory relief between and among the various respondents and Petitioner: . on June 3, 2010, Jeanne filed a “cross-petition” claiming indemnity and declaratory relief against Petitioner and Respondent FENG OUYANG (“Feng”), a true and correct copy of which is attached Exhibit “B” to the RIN; . on June 15, 2010, Jeanne amended her cross-petition to join Respondent GARY C. WONG (“Gary”) in this action. A true and correct copy of Jeanne’s amended cross- 2 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALpetition is attached as Exhibit “C” to the RJN filed herewith; ° on July 16, 2010, Respondent Feng Ouyang filed a cross-petition claiming indemnity and declaratory relief against Jeanne and Gary, a true and correct copy of which is attached as Exhibit “D” to the RJN filed herewith; . on August 16, 2010, Respondent Gary Wong filed a cross-petition for indemnity and declaratory relief against Petitioner, Jeanne, and Feng, a true and correct copy of which is attached as Exhibit “E” to the RJN filed herewith; and . on September 27, 2010, Petitioner filed a cross-petition for negligence, breach of trust, contribution, and indemnity against Gary, a true and correct copy of which is attached as Exhibit “F” to the RJN filed herewith. D. Lack of prosecution. Once all parties had appeared in this case, the case took a back seat to the other suits that Petitioner filed. Petitioner actively pursued her other cases, especially her later-filed cases, while appearing to lose interest in this case. For the parties and counsel involved, Petitioner’s loss of interest came as little surprise given evidence that came out in discovery early on showing that it was Petitioner herself (a life insurance agent) who had sold the subject $1 million life policy to Stan in 1991, Petitioner who had designated Stan’s mother (not any trust) as the beneficiary, and Petitioner who remained the insurance company’s “agent of record” receiving commisions on the policy until Stan’s death or just prior to death. Evidence also came out showing that Petitioner’s designation of Stan’s mother as the policy beneficiary was not only what Stan had actually wanted but also that it was what Stan still wanted up to and through the time of his death. But Petitioner’s loss of interest in this case was also prompted (or necessitated) by Petitioner’s claims in her other cases that were inconsistent with her damages claim in this case. At pp.5:26-6:1 of a probate adversary petition filed by Petitioner on May 14, 2010 in Case No. PES-09-293019 (a true 3 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALand correct copy of which is attached as Exhibit “G” to the RJN), Petitioner conceded that the $1 million life insurance paid to Stan’s mother did not actually reduce the total amount left to Petitioner by Stan because, as pled, the life insurance was part of the $3.5 million that Stan left to other members of his family: “The estate tax exemption available to decedent’s estate is $3.5 million. Life insurance proceeds and certain joint accounts, which total about $1.2 million, have passed directly to beneficiaries other than Petitioner and decedent’s minor children, and have used a portion of decedent’s estate tax exemption.” Petitioner aggressively pursued her claims in the May 14, 2010 petition and other related petitions while placing the Insurance Trust Case (with its inconsistent damages claim) on ice, leaving this case all but forgotten until spring 2015 when the 5-year statute in CCP § 583.310 was set to run on May 12, 2015. D. Stipulation to extend 5-year statute. In April 2015, Petitioner requested, and respondents agreed to, a stipulation extending the S- year statute by two years. A true and correct copy of the parties’ Stipulation To Extend 5-Year Statute To Bring Action To Trial is attached as Exhibit “A” to the Declaration of Counsel Phil Foster (“Decl.Foster”) filed herewith. The stipulation provided in relevant part that “the time to bring the Petition and cross-claims to trial for purposes of the 5-year statute of limitation in Section 583.310 of the Code of Civil Procedure shall be extended by two years from May 12, 2015 to May 12, 2017” ({ 1) and that “the parties waive the right to seek dismissal of the Petition and cross-claims pursuant to Section 583.310 of the Code of Civil Procedure at any time prior to May 12, 2017” (3). “[O]n May 12, 2017 and/or on any date thereafter, Respondents shall be entitled to seek dismissal, and shall be relieved of the waiver of the right to seek dismissal, of the Petition pursuant to the 5-year statute of limitation in Section 583.310 of the Code of Civil Procedure” ({ 4). Over a year then passed with no further activity on this case. 4 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALE. Second stipulation extending 5-year statute. As of the status conference on June 17, 2016 for all of Petitioner’s case, this case was by far the oldest of Petitioner’s then-pending cases and was set for trial on the civil calendar in the Presiding Judge’s Department 206 on February 27, 2017 (still within the 2-year extension of the 5-year statute). Petitioner was not however interested in trying the case, and during a status conference on January 27, 2017 in Case No. PES-09-293019, Petitioner wanted 3 other (overlapping) petitions to be tried in lieu of the Insurance Trust Case. Petitioner got what she wanted, and those 3 petitions took the February 27, 2017 trial date, with the Insurance Trust Case re-set for trial call on April 17, 2017 in Dept. 206. On April 17, 2017, the Presiding Judge in Department 206 assigned this case for trial on June 1, 2017 in Department 606 with Judge Cheng (Judge Cheng had remained the assigned case management judge for all of Petitioner’s cases even after his re-assignment from the probate department to civil trial department 606). Petitioner thereafter filed an application for a trial continuance based on unavailability of a trial expert, which resulted in all parties stipulating to a continued trial date of June 26, 2017. A true and correct copy of the stipulation is attached as Exhibit “H” to the RJN filed herewith. But, at a status conference in Case No. PES-09-293019 on May 19, 2017 (at which neither counsel for Respondent Gary Wong nor counsel for Respondent Feng Ouyang were present), Judge Cheng indicated he was not available on the continued trial date, prompting the parties who were present (Petitioner and Jeanne) to propose September 25, 2017 as a continued trial date. Then, at a status conference in Case No. PES-09-293019 on August 25, 2017 (again at which counsel for neither Respondent Gary Wong nor Respondent Feng Ouyang were present), the parties learned that Judge Cheng did not have availability for a trial until early 2018. Judge Cheng directed Petitioner to return to the Presiding Judge in Department 206 for a new trial assignment. A true and correct copy of the court reporter’s transcript of the August 25, 2017 status conference is attached as 5 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALExhibit “C” to the Decl.Foster. This case was then dropped from the Court’s calendar (as indicated by the minutes entered in Case No. PES-09-293019 — no minutes were apparently entered in the instant case’s case number for the August 25, 2017 case management conference). The 5-year statute expired on September 25, 2017. F Petitioner did not seek a trial date. Even after Judge Cheng directed Petitioner on the record to seek a new trial date, Petitioner still made no attempt to do so for the next 202 days, well after the 5-year statute had expired. During that time, in November 2017, while resolving unrelated issues in Case No. PES-09- 293019, Petitioner and Jeanne executed a written stipulation on or about November 21, 2017 that provided for a stay of prosecution of all of Petitioner’s actions and proceedings until June 15, 2018 “EXCEPT as pertains to the insurance trust dispute known as Kwok v. Kwong, et al., Superior Court of San Francisco, Case No. PES-10-293505.” A true and correct copy of the Stipulation And [Proposed] Order For Final Payments On Judgment is attached as Exhibit “E” to the Decl.Foster filed herewith. Since the 5-year statute (as extended) had already run on September 25, 2017, Jeanne did not agree to a further stay of the Insurance Trust Case, as was memorialized in this stipulation at { 3: “Upon the Trustee’s payment to Judgment Creditors set forth in Paragraph 1 above, the Parties shall forbear and refrain from filing and/or prosecuting any and all claims, actions, and proceedings against the Trustee/Trust until the earlier of June 15, 2018 or 30 days after issuance of remittitur in the Disclaimer Appeal. The insurance trust dispute known as Kwok v. Kwong, et al., Superior Court of San Francisco, Case No. PES-10-293505 is excluded from this provision.” [emphasis added] Fully aware that the 5-year statute had run, and that Jeanne did not agree to extend the statute any further, Petitioner still made no attempt to seek a trial date in this case. Then, after Jeanne had already prepared this motion and was waiting to hear back from the 6 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALclerk of Dept. 204 with a hearing date, a paralegal from the law firm representing Petitioner requested the parties’ availability for a further case management conference in this case with Judge Cheng. As of the date of filing this motion, 175 days have now passed since the 5-year statute (as extended) expired on September 25, 2017, and a total of 206 days have passed since Judge Cheng directed Petitioner to seek a new trial assignment from the Presiding Judge in Department 206. Ill, LEGAL STANDARD. “An action shall be brought to trial within five years after the action is commenced against the defendant.” Code Civ. Proc. § 583.310. “The purpose of the five-year dismissal statute is to prevent the prosecution of stale claims where defendants could be prejudiced by loss of evidence and diminished memories of witnesses. The statute also protects defendants from the annoyance of having unmeritorious claims against them unresolved for unreasonable periods of time.” Munoz v. City of Tracy, 238 Cal.App.4th 354, 358-359 (2015) [citation omitted]. Code Civ. Proc. § 583.310 applies in probate adversary proceedings. “An action is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.” Code Civ. Proc. § 22. This includes the typical adversary proceeding in probate. Estate of Morrison, 125 Cal.App. 504, 507-508 (1932) [five-year statute applies to will contest]; see also Petition of Vladu, 175 Cal.App.2d 50, 52 (1959): “[w]e see no good reason why [the five-year dismissal statute] should not apply to special proceedings if they are adversary in nature and require the trial of issues.” Also, Prob. Code § 1000(a) incorporates part 2 of the Code of Civil Procedure, which includes Code Civ. Proc. § 583.310 et seg.: “Except to the extent that this code provides applicable rules, the tules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.” 1 7 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALIV. LEGAL ANALYSIS. A. Respondent is entitled to an order dismissing this action. “An action shall be dismissed by the court on its own motion or on motion of the defendant, after notice to the parties, if the action is not brought to trial within the time prescribed in this article.” Code Civ. Proc. § 583.360(a). “An action shall be brought to trial within five years after the action is commenced against the defendant.” Code Civ. Proc. § 583.310. Here, with the Petition filed on May 12, 2010, the 5-year statute under CCP § 583.310 was originally set to run on May 12, 2015. The statute was then extended by written stipulation to May 12, 2017. While within the extension period, the case was set for trial, although the parties stipulated (at Petitioner’s request) to a later trial date of June 26, 2017, which was outside the extension period. Although no further extensions of the 5-year statute were stipulated to after June 26, 2017, the parties did (orally) agree to a trial date of September 25, 2017 on the condition that Judge Cheng was available. When Judge Cheng advised on August 25, 2017 that he was not available, this case was taken off calendar, and Judge Cheng directed Petitioner on the record to seek a new trial assignment from the Presiding Judge in Department 206. Petitioner did not do so, and Petitioner has never sought a further stipulation to extend the 5-year statute. The 5-year statute (as extended) ran on September 25, 2017. As of the date of filing this motion, 175 days have passed since the 5-year statute’s expiration, and this case still remains off calendar, with no trial date set, and no assignment to any department (except this case does remain assigned to Judge Cheng for case management). This case is now subject to dismissal under Code Civ. Proc. § 583.360 for failure to bring to trial. See, e.g., Hartman v. Santamarina, 30 Cal.3d 762 (1983) [a case is deemed brought to trial within the meaning of the five-year dismissal statute when the jury is sworn in a jury trial or when the first witness is sworn in a nonjury trial]. For the reasons set forth above, Jeanne respectfully requests an order dismissing this case. 8 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIALB. Petitioner has not been diligent in prosecuting this case. “{A] plaintiff has a duty to exercise reasonable diligence to insure that a case is brought to trial or other conclusion within statutory time constraints.” Hughes v. Kimble, 5 Cal.App.4th 59, 70 (1992) [citations omitted]. “A plaintiff has an obligation to monitor the case in the trial court, to keep track of relevant dates, and to determine whether any filing, scheduling, or calendaring errors have occurred. This obligation of diligence increases as the five-year deadline approaches.” Jordan v, Superstar Sandcars, 182 Cal.App.4th 1416, 1422 (2010) [citations omitted]. Here, the obligation to bring this case to trial was on Petitioner. When, on August 25, 2017, the Court directed Petitioner (on the record) to return to the Presiding Judge in Department 206 to seek a trial assignment, Petitioner had the duty to do so, but chose not to. Petitioner’s inaction continued up to and through September 25, 2017 when the 5-year statute (as extended) ran. Petitioner’s continued inaction even thereafter evidenced a conscious decision to let this case go — at least until March 15, 2018 when Petitioner requested the parties’ availability for further case management, just shortly after Jeanne had requested a hearing date on this motion earlier that same day. Petitioner’s dilatory conduct has run afoul of Code Civ. Proc. § 583.360, and dismissal is now required. IV. CONCLUSION. For the reasons set forth above, Respondent respectfully requests an order dismissing this case pursuant to Code Civ. Proc. § 583.310 and 583.360(a) on the grounds that Petitioner failed to bring this case to trial within five years after it was commenced. March 17, 2018. TOUR-S Is LAW OFFICES, LLP LO By: 7 ’ PHIL FOSTER Attorneys for Respondent JEANNE KWONG 9 RESPONDENT JEANNE KWONG’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FOR FAILURE TO BRING CASE TO TRIAL