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CO
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Apr-02-2014 3:52 pm
Case Number: PES-10-293505
Filing Date: Apr-02-2014 3:51
Filed by: LARRISA DOTSON
Juke Box: 001 Image: 04432572
REPLY
IN RE: STAN KWONG IRREVOCABLE TRUST II
001P04432572
Instructions:
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Daniel T. Bernhard (CSB #104229)
FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800 F I L
San Francisco, California 94105 ‘County Superior Court
Telephone: (415) 541-0200 sen
Facsimile: (415) 495-4332 APR 2 2014
Email: bernhard@freelandlaw.com
@ KOF TH OURT
Attorneys for Executor and Trustee CLER! : L
Jennifer Shuk-Han Kwok wt Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO
CASE NO.: PES-10-293505
JENNIFER SHUK-HAN KWOK
Petitioner REPLY IN SUPPORT OF STIPULATED
MOTION TO RETURN TO THE PROBATE
v. DEPARTMENT THREE CASES
PREVIOUSLY SINGLY ASSIGNED TO
JEANNE KWONG, individually and as a THE HON. ERNEST H. GOLDSMITH
former trustee of the Stan Kwong Irrevocable (DEPT. 613)
Trust II
Respondent
Date: April 9, 2014
Time: 9:30 a.m.
Dept: 206
Judge: The Hon. Cynthia M. Lee--Presiding Judge
I. INTRODUCTION
Plaintiffs! have filed oppositions to the very motion they themselves prepared and previously
stipulated to and urged in this Court. The grounds they now rely on to oppose their own motion they
promoted just a few weeks ago all existed when they originally sought re-assignment to the Probate
Department on March 6. The reasons they now offer in opposition are either fictional or irrelevant.
What are these Plaintiffs really doing? They are judge shopping, and the Court should not permit it.
' By “Plaintiffs” Defendants refer to the Plaintiffs in the Civil Action, CGC-10-499028, Lau Kwong and Larry
«Kwong, as well as their daughter/sister Jeanne Kwong. Although Jeanne Kwong is nominally a defendant, there is
no dispute that her interests are wholly aligned with those of Plaintiffs, and she testified at length on their behalf at
the trial of the Civil Action.
“REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PRIVIOUSIY SINGLY
ASSIGNED TO THI HON. ERNEST H, GOLDSMITH (DEPT. 613)
CASE NO.: PES-10-293505
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Briefly, opposing counsel argue -- without bringing any formal motion -- that the Court should
make another single assignment, instead of assigning these probate matters to the Probate Department
where plainly they belong, an, as Judge Goldsmith himself recognizes. The short response is that the
parties already tried a single assignment - which idea was originally proposed by counsel for Jennifer
Kwok. That concept failed: after three years only one of the four matters singly assigned has been
tried. None of the remaining three matters was ever even set for trial.
Plaintiffs do not actually want a single assignment; they want a dual assignment, with one
judge assigned for all purposes for trial, and Judge Goldsmith, in Department 302, hearing and
deciding all discovery, dispositive motions and other matters. Whatever efficiencies might be
achieved through a single assignment are therefore lost by dividing responsibilities between two
Courts. Plaintiffs’ design is transparent: they are well pleased with the result they obtained in the trial
of the Civil Action by Judge Goldsmith, and are eager to have him continue to decide every matter. ?
Judge Goldsmith himself, however, has stated repeatedly that he believes the remaining matters
belong in the Probate Department; the central issues raised in the remaining matters are all uniquely
probate and trusts and estate issues, some esoteric in application, and they need to be decided by a
Court with the unique knowledge and experience that the Probate Department has in such matters.
Plaintiffs allege that the 3 probate matters “will require too many days of trial for the Probate
Department to handle.” Kwong Oppo. at 2. If each of the remaining matters actually was tried, that
assertion might be relevant; nevertheless, the Probate Department certainly can deal with such an
issue at the time. But Plaintiffs have no intention of trying any case. They have devised a dispositive
motion strategy which is designed to avoid actual trial of any matter; they have already filed two
motions for Summary Judgment and represent to the Court in their Opposition that “the parties
anticipate at least 5 motions for Summary Judgment/Summary Adjudication ...” Oppo. at 2.
Defendants do not know what these motions will be, but clearly Plaintiffs are expecting to avoid any
trial on any matter. The Probate’ Department can and should hear such dispositive motions.
? In the Civil Action the Court rejected completely Plaintiffs’ resulting trust theory of recovery, the legal theory on
which the case was tried; it then devised a different theory of recovery, and awarded Plaintiffs more than they
actually requested at trial.
2
MREE CASES PREVIOUSLY SINGLY
REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTME
ASSIGNED TO THE HON. ERNEST UL GOLDSMITH (DEPT, 613)
CASE NO.: PES-10-293505
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I THE REMAINING MATTERS INVOLVE UNIQUE PROBATE ISSUES
The remaining probate matters involve issues unique to probate and trust and estate practice.
The remaining matters are described briefly in the April 2011 Order on Single Assignment. Bernhard
Declaration, Exhibit A. Plaintiffs insist -- again with no evidence -- that the remaining matters are all
entertwined, but even a brief review of the facts and the pleadings shows that assertion is false.
Several of the remaining matters are especially suited to consideration and decision by the Probate
Department which has expertise in these unique and even esoteric matters. See, 2011 Order On Single
Assignment, Bernhard Decl., Ex. A.
One example is especially illustrative. Jennie Kwok filed a disclaimer in connection with
Stan’s estate plan in action PES-09-293019. A disclaimer is a relatively standard device in estate
plans, by which a party elects not to receive an asset or gift, typically by disclaiming in favor of
another party. Here, Jennie Kwok disclaimed her right to certain assets of Stan’s Trust in favor of her
minor children. A disclaimer is effective retroactively as of the date of death.
Because the disclaimer here specifically relates to assets exempt from federal taxation, the
effect of the Jennie Kwok disclaimer is to eliminate a contingent by-pass trust that Plaintiffs believe
they are entitled to have. Plaintiffs have filed a motion for summary judgment, now pending in
Department 302, on this disclaimer (although no discovery has even been undertaken by the parties).
Another issue unique to probate and estates and trusts practice involves so-called allocation
issues pertaining to the trusts in Stan’s estate plan. Briefly, a judgment against an estate is to be
satisfied in the “normal course of the administration of the estate.” See, generally Probate Code §§
11444, 19324 and 13550, et. seq. These are issues uniquely appropriate and suited to consideration
and decision by the Probate Department, which deals with allocation issues commonly, whereas no
one else ever has occasion to deal with such issues. Plaintiffs insist that it is important that Judge
Goldsmith have the authority to decide all allocation issues because “the trial evidence in [the Civil
Action] is relevant to any allocation.” p 2.
The simple and correct answer is that trial evidence is not relevant. ‘The allocation issue
pertains to the order in which a judgment against an estate can be paid. Here, first the probate assets
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REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY
ASSIGNED TO THE HON. ERNEST HL. GOLDSMITH (DEPT. 613)
CASE NO.: PES-10-293505
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would be used, and if those are inadequate, then assets owned exclusively by Stan would be looked to
for satisfying the judgment. In the event that these are insufficient, then Stan’s share of the
community property would be used. And last, if all of these other sources are insufficient to satisfy a
judgment, then the assets of the surviving spouse can be used. This detailed analysis was never
undertaken by Judge Goldsmith, and was not even possible until an actual judgment was entered,
which did not happen until January 23, 2014. This is not a process that has even been commenced,
and the various trusts and assets looked to in performing an allocation were never addressed in the
trial of the Civil Action.
Ill. JUDGE GOLDSMITH IS NOT UNIQUELY SUITED TO DECIDE ALL
MATTERS
The Opposing Parties insist that Judge Goldsmith should decide all dispositive motions
because he is “most familiar” with the present pending issues. This argument is demonstrably
inaccurate, and once again Plaintiffs offer their self-serving speculation but no facts, which indeed
undermine the argument.
The most obvious falsehood is Plaintiffs’ assertion that “all of Kwok’s probate and civil suits
have issues and claims that came out during trial of the earlier civil action in front of Judge
Goldsmith.” Oppo. at 6.
First, the attorney making that representation, Jeanne Kwong’s counsel, did not even
participate in the trial of the Civil Action. Such a representation -- again with no evidence or record
offered to support it -- is preposterous. Jeanne Kwok was not represented at the trial by her present
counsel, who is assuring the Court that all of these issues “came out during trial.” This is more than
irresponsible; it is another attempt to mislead the Court. No party who participated in the trial of the
Civil Action makes this broad assertion because they know it is false. Counsel does not even refer to
the Amended Complaint that was in fact tried before Judge Goldsmith. That pleading shows that the
issues are not, in fact, related Stan’s estate plan or overlapping as counsel suggests. See, Bernhard
Declaration, Exhibit B.
Plaintiffs’ Amended Complaint in the Civil Action was for an accounting by Stan Kwong’s
estate of various funds that Stan allegedly used or controlled during his life. The lawsuit had nothing
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TED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY
GOLDSMITH (DEPT. 613)
REPLY IN SUPPORT OF STIPULA’
ASSIGNED TO THE HON, ERNES
CASE NO.: PES-10-293505,
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150 Spear Street, Suite 1800
San Francisco, California 94105
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to do with Stan’s estate plan, or the various trusts he established as part of that estate plan. The entire
theory of Plaintiffs’ lawsuit was that Stan did not in fact own various assets he claimed to own and
treated as his. Under Plaintiffs’ theory, Stan’s estate plan was irrelevant and it was not substantively
addressed at trial.
It is undisputed that Judge Goldsmith never heard the three probate actions assigned to him by
the order for single assignment. Other than a few incidental procedural matters, Judge Goldsmith
never made any rulings in any of these three probate matters. Plaintiffs even admit this: “at the first
case management conference, Judge Goldsmith set the civil case, Case No. CGC-10-499028 for trial
before the other matters. To date, none of the three probate matters have ever been set for trial.”
Oppo. at 3. The result is that, contrary to Plaintiffs’ argument, Judge Goldsmith never “accomplished
this feat” of understanding the various trust and probate issues. He simply never got to it. What
Plaintiffs want is for Judge Goldsmith to pick up where he left off, and to finish the single assignment
commenced three years ago. Judge Goldsmith himself recognizes that such makes no sense at this
point, when he has completed all of his tasks as the trial judge for the Civil Action. At the recent final
hearing on post-trial issues, he observed that the remaining probate matters “belong in Probate.”
Bernhard Declaration, Exhibit C.
Plaintiffs also argue at length about two recent filings brought by Jennifer Kwok. Nothing in
this motion addresses those matters or seeks any particular treatment or court handling of those
matters. One is properly filed in the Probate Department; one is filed as a civil matter, and will thus
be heard in the normal course in Department 302. In fact, Plaintiffs demurrers to that new action are
set for hearing in Department 302 on April 9, 2014, and if granted as Plaintiffs argue, that action may
be terminated. Plaintiffs could seek to consolidate the new action now pending in the Probate
Department with the other matters, or they could elect to consolidate the original three matters in the
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Probate Department. But they have made no attempt at such case organization.
> Plaintiffs complain about a multiplicity of litigation, ignoring that one of the three probate actions was commenced
by Jeanne Kwong; and another was simply a standard and required petition to open Stan’s probate after his death.
“ The issue of consolidation was raised in 2011 at the time the original single assignment was made. Oddly,
Plaintiffs have always rejected any consolidation, although that seems to be just what they seek at present.
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REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY
ASSIGNED TO THE HON ERNEST H. GOLDSMITH (DEPT. 613)
CASE NO.: PES-10-293505,
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150 Spear Street, Suite 1800
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IV. PLAINTIFFS’ PENDING MOTIONS SHOULD BE TRANSFERRED TO THE
PROBATE DEPARTMENT
Plaintiffs have now filed two dispositive motions -- in Probate matters -- in Department 302, in
atush to stack the deck in their favor. Those motions should be reassigned to the Probate Department
for disposition there. They are probate disputes, involving uniquely probate matters, and they require
the expertise and experience of the Probate Department to be fairly and efficiently resolved.
Jeanne Kwong now argues that the Presiding Judge has already decided that her Motion for
Summary Judgment should be heard in Department 302, because that is where it is filed. The accurate
facts are that at the ex parte hearing on March 6 the Court directed filing in Department 302 as the.
default, in response to the representation of Jeanne Kwong’s counsel at the ex parte that a “S year
deadline” was looming, and the motions required immediate filing. Bernhard Declaration, at 5.
Jeanne Kwong now argues that she was “directed” to file her Motions for Summary Judgment in
Department 302 “until there was a new order of assignment”. Oppo. at 4. In fact, what Counsel was
advised was that if there was a deadline problem for filing motions, then the parties could proceed to
file in Department 302 pending “‘a new order of assignment.” Bernhard Decl., { 5.
There should be an order of assignment, with the three pending probate matters, and all
motions and proceedings related thereto, assigned to the Probate Department for all purposes. Those
matters already filed in Department 302 should be transferred to the Probate Department. No party
will suffer any prejudice by such transfer.
‘Dated: April 2, 2014 Respectfully submitted,
FREELAND COOPER & FOREMAN LLP
REPLY IN SUPPORT OF STIPULATED MOTION TOR
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CERTIFICATE OF SERVICE
I am employed in the City and County of San Francisco, State of California. I am over the age
of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800,
San Francisco, California 94105.
On April 2, 2014 I served the foregoing document described as follows:
REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE
DEPARTMENT THREE CASES PREVIOUSLY SINGLY ASSIGNED TO THE HON.
ERNEST H. GOLDSMITH (DEPT. 613)
to the party(ies) of record whose name(s) and address(es) appear below:
See Attached Service List
_X_ [BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully
prepaid to be placed in the United States mail at San Francisco, California, for collection and
mailing to the office of addressee(s) on the date shown herein. following ordinary business
practice,
_X_ [BY FEDEX (Overnight Delivery) - CCP § 1013(c)] I caused such envelope to be
delivered to the Federal Express Office in San Francisco, California, with whom we have a
direct billing account, to be delivered on the next business day.
__.. [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of
the parties to accept service by e-mail or electronic transmission, I caused the documents to
be sent to the persons at the email addresses listed above. I did not receive within a
reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
_X_ [STATE] I declare under penalty of perjury under the laws of the State of California that
the above is true and correct.
____ [FEDERAL] Service was made under the direction of a member of the bar of this Court who
is admitted to practice and is not a party to this cause.
Executed on April 2, 2014, at San Francisco, California.
Anya A. Ruiz /
PROOF OF SERVICE
ODIGTOISSFREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800
San Francisco, California 94105
NY NR NN NN NY He Hoe
NY DAA BF BN | SF Ow YO
Ro
wo
Phil Foster
Tour-Sarkissian Law Offices
211 Gough Street, 3" FI
San Francisco, CA 94102
Attorneys for JEANNE KWONG as Trustee
SERVICE LIST
VIA FEDERAL EXPRESS
Carl Lippenberger
Law Offices of Carl Lippenberger
Shelterpoint Business Center
591 Redwood Highway, Suite 2375
Mill Valley, CA 94941
of the Stan Kwong Trust u/a/d April 6, 2009,
and Beneficiaries
Feng Ouyang
c/o Richard M. Bryan, Esq.
Bryan Hinshaw PC
425 California St., Ste. 900
San Francisco, CA 94104
David Wakukawa
Markum Zusman & Compton, LLP
465 California Street, Fifth Floor
San Francisco, CA 94104
VIA U.S, MAIL
California Financial Mortgage Corporation
3735 Geary Blvd
San Francisco, CA 94118
Attorneys for Plaintiffs and Beneficiaries
(00191615)
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CO SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Apr-02-2014 3:52 pm Case Number: PES-10-293505 Filing Date: Apr-02-2014 3:51 Filed by: LARRISA DOTSON Juke Box: 001 Image: 04432572 REPLY IN RE: STAN KWONG IRREVOCABLE TRUST II 001P04432572 Instructions: Please place this sheet on top of the document to be scanned.2 3 4 5 6 7 9 10 i a 12 od el z 13 2 B a5 Og & 35s “3a & B16 a AS 1) Sen = 518 4 a 19 oe oe 20 21 22 AXED Ny - oO ° Daniel T. Bernhard (CSB #104229) FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 F I L San Francisco, California 94105 ‘County Superior Court Telephone: (415) 541-0200 sen Facsimile: (415) 495-4332 APR 2 2014 Email: bernhard@freelandlaw.com @ KOF TH OURT Attorneys for Executor and Trustee CLER! : L Jennifer Shuk-Han Kwok wt Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO CASE NO.: PES-10-293505 JENNIFER SHUK-HAN KWOK Petitioner REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE v. DEPARTMENT THREE CASES PREVIOUSLY SINGLY ASSIGNED TO JEANNE KWONG, individually and as a THE HON. ERNEST H. GOLDSMITH former trustee of the Stan Kwong Irrevocable (DEPT. 613) Trust II Respondent Date: April 9, 2014 Time: 9:30 a.m. Dept: 206 Judge: The Hon. Cynthia M. Lee--Presiding Judge I. INTRODUCTION Plaintiffs! have filed oppositions to the very motion they themselves prepared and previously stipulated to and urged in this Court. The grounds they now rely on to oppose their own motion they promoted just a few weeks ago all existed when they originally sought re-assignment to the Probate Department on March 6. The reasons they now offer in opposition are either fictional or irrelevant. What are these Plaintiffs really doing? They are judge shopping, and the Court should not permit it. ' By “Plaintiffs” Defendants refer to the Plaintiffs in the Civil Action, CGC-10-499028, Lau Kwong and Larry «Kwong, as well as their daughter/sister Jeanne Kwong. Although Jeanne Kwong is nominally a defendant, there is no dispute that her interests are wholly aligned with those of Plaintiffs, and she testified at length on their behalf at the trial of the Civil Action. “REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PRIVIOUSIY SINGLY ASSIGNED TO THI HON. ERNEST H, GOLDSMITH (DEPT. 613) CASE NO.: PES-10-293505 {00191615}FREELAND COOPER & FOREMAN LLP we San Francisco, California 94105 RweN Ye NY NY NY NR N NY — HS BOE ee et RA BF BH = SGC ema DAH BR WwW oO 0 Briefly, opposing counsel argue -- without bringing any formal motion -- that the Court should make another single assignment, instead of assigning these probate matters to the Probate Department where plainly they belong, an, as Judge Goldsmith himself recognizes. The short response is that the parties already tried a single assignment - which idea was originally proposed by counsel for Jennifer Kwok. That concept failed: after three years only one of the four matters singly assigned has been tried. None of the remaining three matters was ever even set for trial. Plaintiffs do not actually want a single assignment; they want a dual assignment, with one judge assigned for all purposes for trial, and Judge Goldsmith, in Department 302, hearing and deciding all discovery, dispositive motions and other matters. Whatever efficiencies might be achieved through a single assignment are therefore lost by dividing responsibilities between two Courts. Plaintiffs’ design is transparent: they are well pleased with the result they obtained in the trial of the Civil Action by Judge Goldsmith, and are eager to have him continue to decide every matter. ? Judge Goldsmith himself, however, has stated repeatedly that he believes the remaining matters belong in the Probate Department; the central issues raised in the remaining matters are all uniquely probate and trusts and estate issues, some esoteric in application, and they need to be decided by a Court with the unique knowledge and experience that the Probate Department has in such matters. Plaintiffs allege that the 3 probate matters “will require too many days of trial for the Probate Department to handle.” Kwong Oppo. at 2. If each of the remaining matters actually was tried, that assertion might be relevant; nevertheless, the Probate Department certainly can deal with such an issue at the time. But Plaintiffs have no intention of trying any case. They have devised a dispositive motion strategy which is designed to avoid actual trial of any matter; they have already filed two motions for Summary Judgment and represent to the Court in their Opposition that “the parties anticipate at least 5 motions for Summary Judgment/Summary Adjudication ...” Oppo. at 2. Defendants do not know what these motions will be, but clearly Plaintiffs are expecting to avoid any trial on any matter. The Probate’ Department can and should hear such dispositive motions. ? In the Civil Action the Court rejected completely Plaintiffs’ resulting trust theory of recovery, the legal theory on which the case was tried; it then devised a different theory of recovery, and awarded Plaintiffs more than they actually requested at trial. 2 MREE CASES PREVIOUSLY SINGLY REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTME ASSIGNED TO THE HON. ERNEST UL GOLDSMITH (DEPT, 613) CASE NO.: PES-10-293505 {00191615}FREELAND COOPER & FOREMAN LLP — te A vn ® w 150 Spear Street, Suite 1800 g San Frangisco, California 94105 RNY NN N NN NY S| = QA A A KF oN |= S |] &w Nu oe © ° I THE REMAINING MATTERS INVOLVE UNIQUE PROBATE ISSUES The remaining probate matters involve issues unique to probate and trust and estate practice. The remaining matters are described briefly in the April 2011 Order on Single Assignment. Bernhard Declaration, Exhibit A. Plaintiffs insist -- again with no evidence -- that the remaining matters are all entertwined, but even a brief review of the facts and the pleadings shows that assertion is false. Several of the remaining matters are especially suited to consideration and decision by the Probate Department which has expertise in these unique and even esoteric matters. See, 2011 Order On Single Assignment, Bernhard Decl., Ex. A. One example is especially illustrative. Jennie Kwok filed a disclaimer in connection with Stan’s estate plan in action PES-09-293019. A disclaimer is a relatively standard device in estate plans, by which a party elects not to receive an asset or gift, typically by disclaiming in favor of another party. Here, Jennie Kwok disclaimed her right to certain assets of Stan’s Trust in favor of her minor children. A disclaimer is effective retroactively as of the date of death. Because the disclaimer here specifically relates to assets exempt from federal taxation, the effect of the Jennie Kwok disclaimer is to eliminate a contingent by-pass trust that Plaintiffs believe they are entitled to have. Plaintiffs have filed a motion for summary judgment, now pending in Department 302, on this disclaimer (although no discovery has even been undertaken by the parties). Another issue unique to probate and estates and trusts practice involves so-called allocation issues pertaining to the trusts in Stan’s estate plan. Briefly, a judgment against an estate is to be satisfied in the “normal course of the administration of the estate.” See, generally Probate Code §§ 11444, 19324 and 13550, et. seq. These are issues uniquely appropriate and suited to consideration and decision by the Probate Department, which deals with allocation issues commonly, whereas no one else ever has occasion to deal with such issues. Plaintiffs insist that it is important that Judge Goldsmith have the authority to decide all allocation issues because “the trial evidence in [the Civil Action] is relevant to any allocation.” p 2. The simple and correct answer is that trial evidence is not relevant. ‘The allocation issue pertains to the order in which a judgment against an estate can be paid. Here, first the probate assets 3 REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY ASSIGNED TO THE HON. ERNEST HL. GOLDSMITH (DEPT. 613) CASE NO.: PES-10-293505 400191615}FREELAND COOPER & FOREMAN LLP 10 11 3 a GARG 150 Spear Street, Suite 1800 San Francisco, California 94105 NN N N NY N N NYE =| outa AA & BN fF SF & & © o would be used, and if those are inadequate, then assets owned exclusively by Stan would be looked to for satisfying the judgment. In the event that these are insufficient, then Stan’s share of the community property would be used. And last, if all of these other sources are insufficient to satisfy a judgment, then the assets of the surviving spouse can be used. This detailed analysis was never undertaken by Judge Goldsmith, and was not even possible until an actual judgment was entered, which did not happen until January 23, 2014. This is not a process that has even been commenced, and the various trusts and assets looked to in performing an allocation were never addressed in the trial of the Civil Action. Ill. JUDGE GOLDSMITH IS NOT UNIQUELY SUITED TO DECIDE ALL MATTERS The Opposing Parties insist that Judge Goldsmith should decide all dispositive motions because he is “most familiar” with the present pending issues. This argument is demonstrably inaccurate, and once again Plaintiffs offer their self-serving speculation but no facts, which indeed undermine the argument. The most obvious falsehood is Plaintiffs’ assertion that “all of Kwok’s probate and civil suits have issues and claims that came out during trial of the earlier civil action in front of Judge Goldsmith.” Oppo. at 6. First, the attorney making that representation, Jeanne Kwong’s counsel, did not even participate in the trial of the Civil Action. Such a representation -- again with no evidence or record offered to support it -- is preposterous. Jeanne Kwok was not represented at the trial by her present counsel, who is assuring the Court that all of these issues “came out during trial.” This is more than irresponsible; it is another attempt to mislead the Court. No party who participated in the trial of the Civil Action makes this broad assertion because they know it is false. Counsel does not even refer to the Amended Complaint that was in fact tried before Judge Goldsmith. That pleading shows that the issues are not, in fact, related Stan’s estate plan or overlapping as counsel suggests. See, Bernhard Declaration, Exhibit B. Plaintiffs’ Amended Complaint in the Civil Action was for an accounting by Stan Kwong’s estate of various funds that Stan allegedly used or controlled during his life. The lawsuit had nothing 4 TED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY GOLDSMITH (DEPT. 613) REPLY IN SUPPORT OF STIPULA’ ASSIGNED TO THE HON, ERNES CASE NO.: PES-10-293505, {00191015}FREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 RN NY NNR NR NR NN Be we ee OR Ee ee e208 A BBN = SF CH RAHA BBN = oO ° to do with Stan’s estate plan, or the various trusts he established as part of that estate plan. The entire theory of Plaintiffs’ lawsuit was that Stan did not in fact own various assets he claimed to own and treated as his. Under Plaintiffs’ theory, Stan’s estate plan was irrelevant and it was not substantively addressed at trial. It is undisputed that Judge Goldsmith never heard the three probate actions assigned to him by the order for single assignment. Other than a few incidental procedural matters, Judge Goldsmith never made any rulings in any of these three probate matters. Plaintiffs even admit this: “at the first case management conference, Judge Goldsmith set the civil case, Case No. CGC-10-499028 for trial before the other matters. To date, none of the three probate matters have ever been set for trial.” Oppo. at 3. The result is that, contrary to Plaintiffs’ argument, Judge Goldsmith never “accomplished this feat” of understanding the various trust and probate issues. He simply never got to it. What Plaintiffs want is for Judge Goldsmith to pick up where he left off, and to finish the single assignment commenced three years ago. Judge Goldsmith himself recognizes that such makes no sense at this point, when he has completed all of his tasks as the trial judge for the Civil Action. At the recent final hearing on post-trial issues, he observed that the remaining probate matters “belong in Probate.” Bernhard Declaration, Exhibit C. Plaintiffs also argue at length about two recent filings brought by Jennifer Kwok. Nothing in this motion addresses those matters or seeks any particular treatment or court handling of those matters. One is properly filed in the Probate Department; one is filed as a civil matter, and will thus be heard in the normal course in Department 302. In fact, Plaintiffs demurrers to that new action are set for hearing in Department 302 on April 9, 2014, and if granted as Plaintiffs argue, that action may be terminated. Plaintiffs could seek to consolidate the new action now pending in the Probate Department with the other matters, or they could elect to consolidate the original three matters in the 4 Probate Department. But they have made no attempt at such case organization. > Plaintiffs complain about a multiplicity of litigation, ignoring that one of the three probate actions was commenced by Jeanne Kwong; and another was simply a standard and required petition to open Stan’s probate after his death. “ The issue of consolidation was raised in 2011 at the time the original single assignment was made. Oddly, Plaintiffs have always rejected any consolidation, although that seems to be just what they seek at present. 5 REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY ASSIGNED TO THE HON ERNEST H. GOLDSMITH (DEPT. 613) CASE NO.: PES-10-293505, {00191015}FREELAND COOPER & FOREMAN LLP 3 AaB DG 150 Spear Street, Suite 1800 San Francisco, Califomia 94105 oo © 9 IV. PLAINTIFFS’ PENDING MOTIONS SHOULD BE TRANSFERRED TO THE PROBATE DEPARTMENT Plaintiffs have now filed two dispositive motions -- in Probate matters -- in Department 302, in atush to stack the deck in their favor. Those motions should be reassigned to the Probate Department for disposition there. They are probate disputes, involving uniquely probate matters, and they require the expertise and experience of the Probate Department to be fairly and efficiently resolved. Jeanne Kwong now argues that the Presiding Judge has already decided that her Motion for Summary Judgment should be heard in Department 302, because that is where it is filed. The accurate facts are that at the ex parte hearing on March 6 the Court directed filing in Department 302 as the. default, in response to the representation of Jeanne Kwong’s counsel at the ex parte that a “S year deadline” was looming, and the motions required immediate filing. Bernhard Declaration, at 5. Jeanne Kwong now argues that she was “directed” to file her Motions for Summary Judgment in Department 302 “until there was a new order of assignment”. Oppo. at 4. In fact, what Counsel was advised was that if there was a deadline problem for filing motions, then the parties could proceed to file in Department 302 pending “‘a new order of assignment.” Bernhard Decl., { 5. There should be an order of assignment, with the three pending probate matters, and all motions and proceedings related thereto, assigned to the Probate Department for all purposes. Those matters already filed in Department 302 should be transferred to the Probate Department. No party will suffer any prejudice by such transfer. ‘Dated: April 2, 2014 Respectfully submitted, FREELAND COOPER & FOREMAN LLP REPLY IN SUPPORT OF STIPULATED MOTION TOR ASS ¢ IRN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGL JED VO THE HON, ERNEST LL. GOLDSMITH (DEPT. 613) 0.: PES-10-293505, {00191015}FREELAND COOPER & FOREMAN LLP a BG 150 Spear Street, Suite 1800 3 San Francisco, California 94105 an % ©° ° CERTIFICATE OF SERVICE I am employed in the City and County of San Francisco, State of California. I am over the age of eighteen and not a party to the within action; my business address is 150 Spear Street, Suite 1800, San Francisco, California 94105. On April 2, 2014 I served the foregoing document described as follows: REPLY IN SUPPORT OF STIPULATED MOTION TO RETURN TO THE PROBATE DEPARTMENT THREE CASES PREVIOUSLY SINGLY ASSIGNED TO THE HON. ERNEST H. GOLDSMITH (DEPT. 613) to the party(ies) of record whose name(s) and address(es) appear below: See Attached Service List _X_ [BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully prepaid to be placed in the United States mail at San Francisco, California, for collection and mailing to the office of addressee(s) on the date shown herein. following ordinary business practice, _X_ [BY FEDEX (Overnight Delivery) - CCP § 1013(c)] I caused such envelope to be delivered to the Federal Express Office in San Francisco, California, with whom we have a direct billing account, to be delivered on the next business day. __.. [BY E-MAIL or ELECTRONIC TRANSMISSION] Based on a court order or agreement of the parties to accept service by e-mail or electronic transmission, I caused the documents to be sent to the persons at the email addresses listed above. I did not receive within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. _X_ [STATE] I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ____ [FEDERAL] Service was made under the direction of a member of the bar of this Court who is admitted to practice and is not a party to this cause. Executed on April 2, 2014, at San Francisco, California. Anya A. Ruiz / PROOF OF SERVICE ODIGTOISSFREELAND COOPER & FOREMAN LLP 150 Spear Street, Suite 1800 San Francisco, California 94105 NY NR NN NN NY He Hoe NY DAA BF BN | SF Ow YO Ro wo Phil Foster Tour-Sarkissian Law Offices 211 Gough Street, 3" FI San Francisco, CA 94102 Attorneys for JEANNE KWONG as Trustee SERVICE LIST VIA FEDERAL EXPRESS Carl Lippenberger Law Offices of Carl Lippenberger Shelterpoint Business Center 591 Redwood Highway, Suite 2375 Mill Valley, CA 94941 of the Stan Kwong Trust u/a/d April 6, 2009, and Beneficiaries Feng Ouyang c/o Richard M. Bryan, Esq. Bryan Hinshaw PC 425 California St., Ste. 900 San Francisco, CA 94104 David Wakukawa Markum Zusman & Compton, LLP 465 California Street, Fifth Floor San Francisco, CA 94104 VIA U.S, MAIL California Financial Mortgage Corporation 3735 Geary Blvd San Francisco, CA 94118 Attorneys for Plaintiffs and Beneficiaries (00191615)