Motion-Secondary: IN RE: STAN KWONG IRREVOCABLE TRUST II

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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Feb-01-2012 3:27 pm

Case Number: PES-10-293505
Filing Date: Feb-01-2012 3:27
Juke Box: 001 Image: 03477109
GENERIC PROBATE PLEADING

IN RE: STAN KWONG IRREVOCABLE TRUST II

001P03477109

Instructions:
Please place this sheet on top of the document to be scanned.Kimberly Gon count’ oF >

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IN THE TRIAL COURTS FOR THE STATE OF CALIFORNIA

IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

Case No.: PES-09-293019
IN RE: STANLEY CHONG KWONG, Related Cases: | PES-09-292733
(FES-10-293509)
ESTATE OF STANLEY CHONG KWONG, CGC-10-499028
Deceased,
BENEFICIARY KIMBERLY GON’S REPLY
JENNIFER SHUK-HAN KWOK BRIEF IN SUPPORT OF MOTION FOR
RECONSIDERATION OF ORDER
Petitioner, REMOVING JEANNE KWONG AS

TRUSTEE OF THE STAN KWONG TRUST
v.

JEANNE KWONG, individually and as a
former trustee of the Stan Kwong Irrevocable

Trust II, Date: February 8, 2012
Wednesday
Respondent. Time: 3:00 PM
Dept.: 613
LAU KWONG, et al, Location: 400 McAllister Street

San Francisco, CA 94102
Plaintiffs,

Judge: Hon, Ernest Goldsmith
v.
JENNIFER SHUK-HAN KWOK, et ai,

Defendants.

worl

i

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BENEFICIARY KIMBERLY GON’S REPLY BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION
OF ORDER REMOVING JEANNE KWONG AS TRUSTEE OF THE STAN KWONG TRUSTSuccessor Trustee and Beneficiary KIMBERLY GON (“Gon”) submits this Reply Brief in
support of Respondent Jeanne Kwong’s Motion for Reconsideration of Order Removing Jeanne
Kwong as Trustee of the Stan Kwong Trust.

I. Petitioner Jennifer Kwok did not dispute that notice of the Motion to Remove Trustee was
never served on Gon.

Petitioner Jennifer Kwok (“Kwok”) cannot dispute that Gon was denied notice and an
opportunity to be heard on Kwok’s Motion to Remove Trustee and For Instructions. Kwok’s own
proof of service for the Motion to Remove Trustee shows that Gon was never served with the motion.

Kwok has apparently conceded this point by claiming that Gon had “constructive notice” of
Kwok’s Motion to Remove Trustee. Kwok’s claim of “constructive notice” in itself is an admission by
Kwok that Gon never received actual notice.

Kwok had no evidence that Gon received “constructive notice.” The claim is mere speculation.

“Constructive notice” of Prob. Code § 17200 petition is insufficient to confer jurisdiction.
Kwok did not set forth any legal authority to the contrary.

Based on Kwok’s failure to serve notice, the Court lacked jurisdiction. Gon respectfully
requests that the Court vacate its December 23, 2011 order granting the Motion to Remove Trustee.

I. Gon’s request for the Court to vacate the order removing Jeanne Kwong as trustee is the
proper vehicle to attack the December 23, 2011 ruling.

“A judgment or decree, when based upon a decision by the court, or the special verdict of a
jury, may, upon motion of the party aggrieved, be set aside and vacated by the same court, and another
and different judgment entered, for either of the following causes, materially affecting the substantial
rights of the party and entitling the party to a different judgment: 1. Incorrect or erroneous legal basis
for the decision, not consistent with or not supported by the facts; and in such case when the judgment
is set aside, the statement of decision shall be amended and corrected.” Code Civ. Proc. § 663.

“[W]hen a judgment on the face of the judgment roll is void for lack of jurisdiction attack on it

2
BENEFICIARY KIMBERLY GON’S REPLY BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION
OF ORDER REMOVING JEANNE KWONG AS TRUSTEE OF THE STAN KWONG TRUST24

25

may be made at any time.” Nagel v. P & M Distributors, Inc., 273 Cal.App.2d 176, 180 (1969)
[citations omitted]. “A judgment is void on its face if the court rendering it lacked subject matter
jurisdiction. If the judgment is void, it is subject to collateral attack by means of a postjudgment
motion to vacate or set aside the judgment as void. An order denying such a motion is a special order
made after entry of judgment that may be directly attacked on appeal. This appeal is allowed because
an order giving effect to a void judgment is also void and appealable.” Residents for Adequate Water
y. Redwood Valley County Water Dist., 34 Cal.App.4th 1801, 1805 (1995) [citations omitted].
Ill. The Court lacks discretion to deny Gon’s request to vacate the December 23, 2011 order.
“A judgment absolutely void may be attacked anywhere, directly or collaterally, whenever it
presents itself, cither by parties or strangers. It is simply a nullity, and can be neither a basis nor
evidence of any right whatever. Such being the status of the judgment of conviction imposed on
petitioner in this case, no discretion rested in the court except to expunge it from the record, and the
superior court had no alternative except to order the police court to strike the judgment.” Andrews v.
Superior Court of San Joaquin County, 29 Cal.2d 208, 214-215.
IV. Conclusion.
For the reasons set forth above, Gon respectfully requests that the Court vacate the December
23, 2011 order removing Jeanne Kwong as trustee of the Stan Kwong Trust on the grounds that the

Court lacked jurisdiction.

February 1, 2012 A.

KIMBERLY GON
pro per

3
BENEFICIARY KIMBERLY GON’S REPLY BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION
OF ORDER REMOVING JEANNE KWONG AS TRUSTEE OF THE STAN KWONG TRUSTSUPPLEMENTAL DECLARATION OF BENEFICIARY KIMBERLY GON

J, Kimberly Gon, declare:

1. Iam one of the named beneficiaries of the Stan Kwong Trust. I am also the named
Successor Trustee of the Stan Kwong Trust to serve as trustee after my mother Jeanne Kwong.

2. As I stated in my earlier declaration, | was never served with the Motion to Remove
Trustee and For Instructions.

3. Attached hereto as Exhibit “A” is the proof of service of the Motion to Remove Trustee.
The proof of service shows that neither I nor my sister Krista Gon were served with the Motion to
Remove Trustee and For Instructions. Neither Jennifer Kwok nor her counsel Daniel Bernhard have
disputed that neither I nor my sister Krista Gon were served with the Motion to Remove Trustee and
For Instructions.

I declare under penalty of perjury under the laws of the State of California that the foregoing is

true and correct. Executed on February 1, 2012 at San Francisco, California.

Zed ‘

pro per

4
BENEFICIARY KIMBERLY GON’S REPLY BRIEF IN SUPPORT OF MOTION FOR RECONSIDERATION
OF ORDER REMOVING JEANNE KWONG AS TRUSTEE OF THE STAN KWONG TRUSTExhibit “A”FREELAND COOPER & FOREMAN LLP

150 Spear Street, Suite 1800
San Francisco, California 94105

Nn Ny NY N N N YY YF eS
RBekRRRE BRS S&S & we A

Daniel T. Bernhard (CSB #104229)
FREELAND COOPER & FOREMAN LLP
150 Spear Street, Suite 1800

San Francisco, California 94105
Telephone: (415) 541-0200

Facsimile: (415) 495-4332

Email: bernhard@freelandlaw.com

Attomeys for Petitioner and Defendant

Jennifer Shuk-Han Kwok, Trustee, and Respondent and Defendant

California Financial Mortgage Corporation

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO

IN RE:
STANLEY CHONG KWONG,

ESTATE OF STANLEY CHONG KWONG,
Deceased,

JENNIFER SHUK-HAN KWOK

Petitioner
v.

JEANNE KWONG, individually and as a former
trustee of the Stan Kwong Irrevocable Trust II

Respondent
LAU KWONG, et al

Plaintiffs
v.

JENNIFER SHUK-HAN KWOK, et al,

Defendants.

CASE NO.: PES-09-293019

CASE NO.: PES-09-292733

CASE NO. PES-10-293505

CASE NO.: CGC-10-499028

PROOF OF SERVICE

Date: October 12, 2011

Time: 10:00 a.m.

Dept.: 613 -- The Hon. Emest Goldsmith

“PROOF OF SERVICE
{00154921-1}FREELAND COOPER & FOREMAN LLP

150 Spear Street, Suite 1800
San Francisco, California 94105

PROOF OF SERVICE

Iam employed in the City and County of San Francisco, State of California. 1 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 September 19, 2011, I served the foregoing documents described as follows:

NOTICE OF MOTION AND MOTION TO REMOVE TRUSTEE AND FOR
INSTRUCTIONS Probate Code sections 17200(a) and (b)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
REMOVE TRUSTEE AND FOR INSTRUCTIONS
Prebate Code sections 17200(a) and (b)

DECLARATION OF JENNIFER SHUK-HAN KWOK IN SUPPORT OF MOTION TO
REMOVE TRUSTEE AND FOR INSTRUCTIONS

DECLARATION OF COUNSEL DANIEL T. BERNHARD IN SUPPORT OF JENNIFER
KWOK’S MOTION TO REMOVE TRUSTEE OF THE STAN KWONG TRUST AND FOR .
INSTRUCTIONS

by: placing a true and correct copy(ies) thereof enclosed in a sealed envelope addressed to the
party(ies) of record whose name(s) and address(es) appear below: :

Carl Lippenberger oo Paul Tour-Sarkissian

Law Offices of Carl Lippenberger  Tour-Sarkissian Law, Offices
201 Tamal Vista Bivd. 211 Gough Street, 3" FI

Corte Madera, CA 94925 San Francisco, CA 94102

fax — (415) 927-5210 fax: (415) 626-8189

(service by hand delivery) (service by hand delivery)
Richard M. Bryan Edward S. Zusman

Bryan Hinshaw Markun Zusman & Compton, LLP
425 California Street, #900 465 California Street, Suite 500
San Francisco, CA 94104 San Francisco, CA

fax (415) 296-0812 fax (415) 434-4505

(service by mail) (service by mail)

_X_ [BY MAIL - CCP § 1013a] I caused such sealed envelope with postage thereon fully
xe pad to be placed in the United States mail at San Francisco, Califomia, for collection and
mailing to the office of addressee(s) on the date shown herein following ordinary business
practice.

_X_ [HAND- DELIVER Y/Personal/Messenger - CCP § 1011] I caused such envelope to be
hand-delivered by a courier, who personally delivered such envelope to the office of the
addressee(s) on the date herein.

___ [BY FACSIMILE - CCP § 1013(e)] - I caused such document(s) to be transmitted via

facsimile electronic equipment transmission on the party(ies), whose name(s), address(es)
and fax number(s) are listed above, on the date stated herein and at the time set forth on the
attached transmission reported indicating that the facsimile transmission was complete and
without error.

___ [BY FEDEX (Overnight Delivery) - CCP § 1013(c)} I caused such envelope to be

“PROOF OF SERVICE
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delivered to the Fee.«al Express Office in San Francisco, Cuafornia, 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, | 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 September 19, 2011, at San Francisco, California.

Jennifer Ryan

“PROOF OF SERVICE
(00154921-1}