Preview
Electronically Filed
by Superior Court of CA,
X. Young Lai, #275396,
County of Santa Clara,
28 N. First Street, Suite 540
on 1/21/2020 10:00 PM
San Jose, CA 95113
Reviewed By: Tunisia Turner
TEL: (408)228-3995 Case #17CV308093
FAX: (866)610-9505
Envelope: 3918187
gagelegal@gmail.com
Plaintiff, Pro Per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
10
11 (Case No.: 17CV308093
X. Young Lai,
12 Plaintiff, IPLAINTIFF’S REPLY FOR MOTION TO
13 LIFT STAY AND TO APPOINT A
vs. IFORENSIC EXPERT
14 Wen Fang Wang, Does 1-10
15 Date: 1/28/2020
Defendants. Time: 9:00 am
16 Department: 20
Judge: Hon. Manoukian
17
18
19 COME NOW, Plaintiff X. Young Lai respectfully submits this Reply for his Motion to
20 Lift Stay and to Appoint a Forensic Expert. The Brief is based upon the accompanying
21 Memorandum of Points and Authorities, a declaration and a transcript, each of which is filed
22 concurrently herewith, all pleadings and papers on file in the above-captioned action, and other
23 evidence that may be presented by the moving party prior to or at the hearing.
24
25 Dated: 1/21/2020
26 B
xX. Young Lai, Plaintiff
27
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
MEMORANDUM OF POINTS AND AUTHORITIES
A. THE COURT HAS POWER TO LIFT THE STAY AND ORDER AN
FORENSIC EXAMINATION.
Defendants did not dispute that the court has power to order discovery when an appeal i
pending, as plaintiff discussed it extensively in his moving paper. Nor did defendant presented an
expert opinion to counter plaintiff’s claim that there is an urgency when the two-year window timd
for forensic examination is about to pass.
Moreover, Defendant has filed a cross-complaint. Although the cross-complaint may be
subject to the court’s discretionary stay, it is not part of the appeals. Whether the result of the anti
10 SLAPP motion is reversed or affirmed, the cross-complaint will always be actionable. As such.
11 the court should grant the motion, and lift the stay to allow Plaintiff to conduct discovery and t
12 prevent irreparable harm.
13 B. PLAINTIFF DID NOT MAKE A MOTION FOR RECONSIDERATION, AND
14 THIS IS ASECOND MOTION AFTER THE FIRST ONE WAS DENIED
15 WITHOUT PREJUDICE.
16 The term “without prejudice,” in its general adaptation, means that there is no decision off
the controversy on its merits, and leaves the whole subject in litigation as much open to}
17 another application as if no suit had ever been brought. The first motion of respondents.
not having been considered on its merits, they were entitled to a hearing on the second|
18 motion without setting forth new or additional facts than those that existed at the time off
the first motion as required by section 1008 of the Code of Civil Procedure made
19 applicable only where the first motion has been refused on its merits.
20 (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718.)
21 Here, the first motion was denied without prejudice. There was no consideration on its
22 merits, and there was no written opinion on the denial. Plaintiff has express permission to refild
23 the motion to be heard by the judge. (Lai Decl., 92, Exh. 4). Therefore, section 1008 of the Coda
24 of Civil Procedure is inapplicable.
25 C. DEFENDANT’S NEW PERJURIES SHOULD NOT PREVENT THE
26 DOCUMENTS IN QUESTION FROM BEING EXAMINED.
27 Fed. Rules of Evid. 1002 (“Requirement of the Original”) provides: “An original writing.
28 recording, or photograph is required in order to prove its content unless these rules or a federal
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
statute provides otherwise” (emphasis added). Fed. Rules of Evid, 1003 (“Admissibility off
Duplicates”) provides: “A duplicate is admissible to the same extent as the original unless a
genuine question is raised about the original’s authenticity or the circumstances make it unfair t
admit the duplicate.” (emphasis added).
Similarly, California state rules also require due authentication and presentation off
original documents when the duplicates appear to be altered. Cal. Rules of Evid. 1401
(“Authentication Required”) provides: “(a) Authentication of a writing is required before it ma‘
be received in evidence. (b) Authentication of a writing is required before secondary evidence off
its content may be received in evidence.” Cal. Rules of Evid. 1402 (“Authentication of Altered)
10
Writing”) provides:
11
12 The party producing a writing as genuine which has been altered, or appears to have
been altered, after its execution, in a part material to the question in dispute, must
13
account for the alteration or appearance thereof. He may show that the alteration
14 was made by another, without his concurrence, or was made with the consent of the
parties affected by it, or otherwise properly or innocently made, or that the
15 alteration did not change the meaning or language of the instrument. If he does that,
he may give the writing in evidence, but not otherwise.
16
17 In fact, California has specific requirements for photocopies of business records. Cal. Rules of|
18 Evid. 1550 (“Photographic copies made as business records”) provides:
19 A nonerasable optical image reproduction provided that additions, deletions, or
changes to the original document are not permitted by the technology, a photostatic,
20 microfilm, microcard, miniature photographic, or other photographic copy or
reproduction, or an enlargement thereof, of a writing is as admissible as the writing
21 itself if the copy or reproduction was made and preserved as a part of the records
of a business (as defined by Section 1270) in the regular course of that business.
22
The introduction of the copy, reproduction, or enlargement does not preclude
23 admission of the original writing if it is still in existence. A court may require the
introduction of a hard copy printout of the document.
24 1 The spreadsheet
25 Wang, for the very first time, testified to a new “fact” that the spreadsheet and the notations
26 were made before plaintiff was retained September 16, 2016. Wang did not provide such a1
27 “explanation” to the arbitration panel between July 10, 2018 when the plaintiff raised the forgery,
28 issue in his brief and October 1, 2018 when Moore dismissed the arbitration. Nor did she presen
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
it in her declaration in support of the anti-SALPP motion filed on February 1, 2019. In fact, she
did not even make a declaration in her opposition to the first motion October 22, 2019.
Moreover, her testimony was contradicted by Moore’s declarations. In the anti-SLAPP|
motion, Moore admitted that the spreadsheet was created after the termination of Plaintiff’
services. “There was a spreadsheet that WEN FANG WANG provided to me that was prepared|
after LAI’s representation of her ceased in which listed bank transactions from bank records. The
bank records were inadvertently omitted from the Exhibit, but nothing on the spreadsheet was
redacted. “(Moore Decl. in support of Anti-SLAPP filed 2-1-19, 95, emphasis added.)
Moreover, in Moore’s declaration and opposition to the first motion, he testified that the
10 notations were made to him and Melen:
11
“LAI does not explain why the handwritten notations on a document produced in a brief
12 for a Mandatory Fee Arbitration is material to anything. Indeed, it is not. Nothing in any
pleading has ever relied on the handwritten notations on the document in question and
13 LAI does not explain otherwise. Rather, the notations were made by WANG to explain to}
her then current attorneys, MOORE and MELEN, what the document (a spreadsheet)
14 purported to represent. This spreadsheet was attached as an exhibit to a Mandatory Fee
Arbitration brief that was prepared after LAI’s representation of her ceased in which
15 listed bank transactions from bank records. The bank records were inadvertently omitted
from the Exhibit that MOORE referred to in the brief, but nothing on the spreadsheet was
16 presented to suggest, as LAI does, that the handwritten notes were represented to be those|
communicated to him. It is simply the product of a fetid imagination and designed to
17 further harass WANG.”
18 (Moore’s Decl. for Opp. filed 10-22-19, 417; Moore’s Opp. filed 10-22-19, 1: 9:21, emphasis
19 added.) In other words, again, Moore admitted that the spreadsheet with the notes was no
20 presented to plaintiff before his services ended in January 2017.
21 Now, More attempts to explain away the discrepancies.
22
The sentence “This spreadsheet was attached as an exhibit to a Mandatory Fee Arbitration)
23 brief that was prepared after LAI’s representation of her ceased in which listed bank!
transactions from bank records” (Exhibit M, §/17 hereto) is accurate. I did not attach the|
24 spreadsheet as an exhibit to a Mandatory Fee Arbitration brief until after I prepared the
Mandatory Fee Arbitration brief. I prepared the Mandatory Fee Arbitration brief after
25 LAI’s representation of WANG had ceased. The date that LAI informed WANG he would
no longer represent her was January 25, 2017, and I attached the spreadsheet on the
26 completed Mandatory Fee Arbitration brief on July 2, 2018 as reflected by the proof off
service on the brief. (Exhibit I hereto). The sentence’s syntax of the remainder of the|
27 sentence (“in which listed bank transactions from bank records”) does not read nor was it]
intended to convey that the spreadsheet was created after LAI’s representation of WANG
28 ceased as LAI attempts to construe it.
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
(Moore Decl., 429.) Moore argues that the subordinate clause “that was prepared after LAI’s|
representation of her ceased” was intended not to qualify the subject “[t]his spreadsheet” but his|
“brief.” This “interpretation” is no less than preposterous, as the fact that the arbitration brief camd
after the termination of plaintiff's services is mostly meaningless and irrelevant, and there was n
need for Moore to emphasize that fact.
Moore further argues that his previous representation that the notes on the spreadsheet werd
made for him and Melen was “incorrect” when he assumed the English word was intended for
them. (Moore Decl., 429.) So according to Moore, even one and a half years elapsed after plaintiff
raised the issue of forgery in his arbitration brief on July 10, 2018, he had never conversed the
10 issue with Wang, and did not even know to whom the words were directed.
11 In addition, Wang testified that before September 2016, she created the spreadsheet and
12 made the notes when she chose to have a search range from February 4 2015 through February 4:
13 2017. (Wang Decl., §10.) This is apparently perjurious, as it is common knowledge in on-ling
14 banking, in searching past transactions, one cannot put a future date. If there is any doubt about
15 it, the Court should at least allow plaintiff to depose the Discovery Bank.
16 Moreover, a trier of fact could infer that when Moore submitted his June 30, 2018 brief, he
17 had only the photo of the spreadsheet, and the copies of the bank statements were provided
18 afterwards merely for cover-up purposes. If Moore had have both the spreadsheet and the bank
19 statements, both of them should have been photographic.
20 In fact, Moore did not ask Wang for copies of bank records for Wang’s alleged transfers t
21 her mother and brother until July 17, 2018, after he submitted the forged spreadsheet on June 30.
22 2018 and after Plaintiff pointed out the forgery in his July 10, 2018 brief. (Exh. E attached t
23 Wang’s declaration, p2. “Yes, Michelle initiated the call. [{]] Can you send me copies the wire
24 transfers to your mother and brother to Taiwan?”)
25 Furthermore, had Wang’s testimony been true and the spreadsheet not a product of al
26 forgery, defendants could have rightfully used it. That makes defendants’ repeated claims off
27 “inadvertence” at the minimum, odd. In fact, defendants have claimed two types of inadvertency
28 One is inadvertency in failing to attach the bank records with the spreadsheet, another is
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
inadvertency in including the spreadsheet in the exhibits to Moore’s brief. “The bank records werd
inadvertently omitted from the Exhibit that MOORE referred to in the brief.” (Moore’s Decl. for
Opp. filed October 22, 2019. 417; Moore Decl. in support of Anti-SLAPP motion filed February)
1, 2019, §5.) Now Moore changed his story by claiming that the spreadsheet itself was an]
inadvertent submission. (Moore Decl., 20, 23, 23, 934.)
2. The Chase statement with a period May 06, 2017 through June 06, 2017
None of defendants’ testimony changed a simple fact that the Chase Bank statement was
created after plaintiffs legal representation was terminated and all the files were returned to Wang|
January 30, 2017. In fact, that was three (3) months after Melen took on the family case.! and after
10 she met with a prospective expert and met with Wang on May 08, 2017.”
11 Nor did any defendants dispute the fact that this bank statement was attached as part off
12 Exhibit C to Wang’s verified cross-complaint filed May 21, 2019° and to Wang’s declaration i
13 support of the anti-SLAPP motion filed February 1, 2019.4 The bank statement only shows that on
14 May 22, 2017, after Wang transferred from her CIT bank to her Chase account, she made al
15 withdrawal. In other words, she did have access to more than $120,000 in her bank account before
16 plaintiff's services ended January, 2017. As such, it was impossible for plaintiff to utilize Famil
17 Code 2030 to request attorney’s fees from the opposing party.° In short, had plaintiff known it, he
18
19 | “T substituted in as counsel for WEN FANG WANG on February 28, 2017, in place and instead of X. YOUNG
LAL, ESQ., who had remained as attorney or record, but had not provided WEN FANG WANG any services in the
20 family law case after terminating her as his client on January 25, 20 17.” (Melen’s Decl. filed February 1, 2019, §2.)
21 2 Melen’s Invoice. (Exh. 5.)
3 “WANG gave him the documentation of some of these transactions. This documentation (bank statements) showed]
22 the receipt of the money from her husband and the wire transfers ($89,290 on July 13, 2015 and $75,000 on August,
20 15). True and correct copies of these bank records are attached hereto as Exhibit C. LAI never inquired about
23 these transactions thereafter.” (Wang’s verified cross-complaint filed May 21, 2019, 420)
*T gave him the documentation of some of these transactions. This documentation (bank statements) shows my
24 receipt of the money from my husband and the wire transfers ($75,000 on July 13 ,2015 and $89,290 on August 13,
2015) True and correct copies of these bank records are attached hereto as Exhibit C.” (Wang Decl. filed February 1
25 2019, $8.)
5 Under Family Code 2030, a lack of access to sufficient funds is a predicate for granting attorney’s fees and costs.
26 “(a) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in am
proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal|
27 representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary]
based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to
28 the other party’s attorney, whatever amount is reasonably ne ary for attorney’s fe and for the cost of maintaining]
or defending the proceeding during the pendency of the proceeding. [{](b)When a request for attorney’s fees and costs
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
would not have agreed to a contingency agreement.
To the extent that this document was purported to show that Wang transferred the $122,385
to her brother in Taiwan, it is at least questionable. Although there was a withdrawal, there is no
indication that funds were ever transferred to her brother; certainly, let alone wire-transferred. “Tf
weaker and less satisfactory evidence is offered when it was within the power of the party to|
produce stronger and more satisfactory evidence, the evidence offered should be viewed with
distrust.” (Evid. Code, § 412.) Moreover, on the spreadsheet, it shows a debit of $120,000 occurred)
prior to a credit of $75,000; in other words, the $75,000 wire transfer could not be part of the
$120,000 that Wang alleged to belong to her brother.
10 c. The Bar complaint
11 Plaintiff has never seen this bar complaint before. Plaintiff received an inquiry letter from]
12 the state bar, which contains no sexual harassment allegations. Accordingly, plaintiff was nol
13 aware that such an allegation was included in the bar complaint. (Lai Decl., 5, Exh “7.”) It appears
14 that the state bar determined the allegation was groundless and therefore did not include it in the
15 inquiry letter.
16 Nevertheless, the bar complaint contradicts defendants’ claims that plaintiff was full
17 informed of Wang’s financial condition by way of bank records, and that Wang’s newest claim]
18 that she sent plaintiff three (3) set of bank records.
19 In paragraph 27 of bar complaint, Wang states: “If X. Young Lai had asked me to prepare
20 my financial statements, I would have done so but he never did.” (Bar complaint, §27.) “As an
21 attorney, X. Young Lai did not ask me to prepare all bank statements whether active or close|
22 accounts in advance, which leads to inadequate preparation to counter the other counsel’
23 accusation.” (Bar complaint, p.2.) Although Wang falsely claimed that she informed plaintiff abou
24 the two wire-transfers, before the retainer agreement was signed September 16, 2016. Nowherd
25
26
is made, the court shall make findings on whether an award of attorney’s fees and costs under this section ig
27 appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay fo:
legal representation of both parties...” (Fam. Code, § 2030, emphasis added.)
28
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
in the bar complaint did she asserted that she ever gave plaintiff any bank statements.
Indeed, because defendants knew this bar complaint was damaging to their perjurious
claims, in the anti-SLAPP motions, defendants not only refused to offer it in evidence, but also
attempted to intimidate plaintiff into not showing it (because they did not know that plaintiff had
no copy of it.)
But he certainly did not have a unilateral right to waive WANG's right to confidentiality]
(See Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 569 [A complainant, be
he a lay person or an attorney, is entitled to have the fact that he has filed a complain
against an attorney kept confidential until such time as the charges are found to be true an
disciplinary action is taken].) However, I have not attached it to WANG's Declaration unti
such time as this Court or the Office of Chief Trial Counsel for the State Bar determine:
that confidentiality has been waived.
(Moore Decl. filed February 1, 2018, §3.) “My State Bar Complaint (without attachments) and the
10
State Bar of California's letter acknowledging receipt for State Bar Case Number 17-0-01445 wil
11
be submitted as Exhibit I if this Court orders me to.” (Wang Decl. filed February 1, 2018, 419.)
12
d. Pencil or pen
13
The determination of the age of the notes on the spreadsheet is critical because it will show
14
whether defendants’ testimony is truthful or perjurious, and whether defendants intentionall.
15
framed plaintiff by adding the notes to implicate plaintiff's prior knowledge of the tw
16
transactions.
17
Here, to prevent forensic examination, again, for the first time, Defendant claimed the notes
18
on the spreadsheet were made by pencil, albeit interesting enough, with no certainty. They claim
19
that “[i]t looks like the writing on the spreadsheet is in pencil and not pen,” (Wang Decl., 412.
20
and that the notes on the Discovery Bank statement were made “also /ikely in pencil.” (Wang Decl.
21
13.) The statements are evasive, as the documents are in defendants’ possession, and it should
22
not be a difficult task to discern whether the notes were made in pencil or pen. Perhaps, defendant:
23
have already contemplated destroying the originals if the forensic examination is allowed to
24
proceed. Moreover, even if they were made in pencil, technology can still determine the age of the
25
writing. (Lai Decl., 94.)
26
27 Il. CONCLUSION
28 All defendants did is to deflect their guilt by smearing Plaintiff. The real question here is|
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
whether the forensic examination should be conducted. Had defendants’ declarations been truthful
defendants certainly should have been glad to have the documents in question examined because
the result could potentially vindicate them against “wrongful” allegations made by plaintiff.
For the foregoing reasons, the Court should grant the plaintiff's motions. In addition.
plaintiff also requests to depose Discovery Bank on the issue of whether the online banking syste!
permits a client to use a future date in search of transactions, should the stay be lifted.
Respectfully submitted,
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11 1/21/2020
12
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14
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X. Young Lai, Plaintiff
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
I am employed in the County of Santa Clara, State of California. My business address is
28 N. First Street, San Jose, CA 95113.
On 1/21/2020, I caused the foregoing document(s) described as Plaintiff's Reply for
Motion to Lift Stay and Appoint an Expert on all interested parties in this action by placing a
true copy thereof enclosed in a sealed envelops addresses as stated on the attached service list:
[ BY MAIL - I deposited such envelope in the mail at San Jose, California. The
envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s
practice of collection and processing correspondence for mailing. Under the practice I would be
deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at San
Jose, California in the ordinary course of business. I am aware that on motion of the party served,
service is presumed invalid if postal cancellation date or postage meter date is more than one (1)
day after date of deposit for mailing in affidavit.
10 [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by a
process server employed by Pacific Coast Legal Services.
11
[x ] BY ELETRONIC TRANSMISSION - I transmitted a PDF version of this document by
12 electronic mail to the party(s) identified on the attached service list using the email address(es)
indicated.
13
XxX BY OVERNIGHT DELIVERY — I deposited such envelope for collection and
14 delivery by GSO with delivery fees paid or provided for in accordance with ordinary practices.
Tam readily familiar with the firm’s practice of collection and processing packages for overnight
15 delivery by GSO for receipt on the same day in the ordinary course of business.
16 x ] (State) I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
17
(Federal) I declare under penalty of perjury under the laws of the United States of
18 America that the foregoing is true and correct.
19 1/21/2020
20
21
22 X. Young Lai
23
24 SERVICE LIST
25 Frank S. Moore, Esq.,
26 Law Offices of Frank S. Moore, APC
27 235 Montgomery Street, Suite 440
28 San Francisco, California 94104
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PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT
Preview
Electronically Filed by Superior Court of CA, X. Young Lai, #275396, County of Santa Clara, 28 N. First Street, Suite 540 on 1/21/2020 10:00 PM San Jose, CA 95113 Reviewed By: Tunisia Turner TEL: (408)228-3995 Case #17CV308093 FAX: (866)610-9505 Envelope: 3918187 gagelegal@gmail.com Plaintiff, Pro Per SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA 10 11 (Case No.: 17CV308093 X. Young Lai, 12 Plaintiff, IPLAINTIFF’S REPLY FOR MOTION TO 13 LIFT STAY AND TO APPOINT A vs. IFORENSIC EXPERT 14 Wen Fang Wang, Does 1-10 15 Date: 1/28/2020 Defendants. Time: 9:00 am 16 Department: 20 Judge: Hon. Manoukian 17 18 19 COME NOW, Plaintiff X. Young Lai respectfully submits this Reply for his Motion to 20 Lift Stay and to Appoint a Forensic Expert. The Brief is based upon the accompanying 21 Memorandum of Points and Authorities, a declaration and a transcript, each of which is filed 22 concurrently herewith, all pleadings and papers on file in the above-captioned action, and other 23 evidence that may be presented by the moving party prior to or at the hearing. 24 25 Dated: 1/21/2020 26 B xX. Young Lai, Plaintiff 27 28 PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT MEMORANDUM OF POINTS AND AUTHORITIES A. THE COURT HAS POWER TO LIFT THE STAY AND ORDER AN FORENSIC EXAMINATION. Defendants did not dispute that the court has power to order discovery when an appeal i pending, as plaintiff discussed it extensively in his moving paper. Nor did defendant presented an expert opinion to counter plaintiff’s claim that there is an urgency when the two-year window timd for forensic examination is about to pass. Moreover, Defendant has filed a cross-complaint. Although the cross-complaint may be subject to the court’s discretionary stay, it is not part of the appeals. Whether the result of the anti 10 SLAPP motion is reversed or affirmed, the cross-complaint will always be actionable. As such. 11 the court should grant the motion, and lift the stay to allow Plaintiff to conduct discovery and t 12 prevent irreparable harm. 13 B. PLAINTIFF DID NOT MAKE A MOTION FOR RECONSIDERATION, AND 14 THIS IS ASECOND MOTION AFTER THE FIRST ONE WAS DENIED 15 WITHOUT PREJUDICE. 16 The term “without prejudice,” in its general adaptation, means that there is no decision off the controversy on its merits, and leaves the whole subject in litigation as much open to} 17 another application as if no suit had ever been brought. The first motion of respondents. not having been considered on its merits, they were entitled to a hearing on the second| 18 motion without setting forth new or additional facts than those that existed at the time off the first motion as required by section 1008 of the Code of Civil Procedure made 19 applicable only where the first motion has been refused on its merits. 20 (Chambreau v. Coughlan (1968) 263 Cal.App.2d 712, 718.) 21 Here, the first motion was denied without prejudice. There was no consideration on its 22 merits, and there was no written opinion on the denial. Plaintiff has express permission to refild 23 the motion to be heard by the judge. (Lai Decl., 92, Exh. 4). Therefore, section 1008 of the Coda 24 of Civil Procedure is inapplicable. 25 C. DEFENDANT’S NEW PERJURIES SHOULD NOT PREVENT THE 26 DOCUMENTS IN QUESTION FROM BEING EXAMINED. 27 Fed. Rules of Evid. 1002 (“Requirement of the Original”) provides: “An original writing. 28 recording, or photograph is required in order to prove its content unless these rules or a federal -1- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT statute provides otherwise” (emphasis added). Fed. Rules of Evid, 1003 (“Admissibility off Duplicates”) provides: “A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair t admit the duplicate.” (emphasis added). Similarly, California state rules also require due authentication and presentation off original documents when the duplicates appear to be altered. Cal. Rules of Evid. 1401 (“Authentication Required”) provides: “(a) Authentication of a writing is required before it ma‘ be received in evidence. (b) Authentication of a writing is required before secondary evidence off its content may be received in evidence.” Cal. Rules of Evid. 1402 (“Authentication of Altered) 10 Writing”) provides: 11 12 The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must 13 account for the alteration or appearance thereof. He may show that the alteration 14 was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the 15 alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise. 16 17 In fact, California has specific requirements for photocopies of business records. Cal. Rules of| 18 Evid. 1550 (“Photographic copies made as business records”) provides: 19 A nonerasable optical image reproduction provided that additions, deletions, or changes to the original document are not permitted by the technology, a photostatic, 20 microfilm, microcard, miniature photographic, or other photographic copy or reproduction, or an enlargement thereof, of a writing is as admissible as the writing 21 itself if the copy or reproduction was made and preserved as a part of the records of a business (as defined by Section 1270) in the regular course of that business. 22 The introduction of the copy, reproduction, or enlargement does not preclude 23 admission of the original writing if it is still in existence. A court may require the introduction of a hard copy printout of the document. 24 1 The spreadsheet 25 Wang, for the very first time, testified to a new “fact” that the spreadsheet and the notations 26 were made before plaintiff was retained September 16, 2016. Wang did not provide such a1 27 “explanation” to the arbitration panel between July 10, 2018 when the plaintiff raised the forgery, 28 issue in his brief and October 1, 2018 when Moore dismissed the arbitration. Nor did she presen -2- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT it in her declaration in support of the anti-SALPP motion filed on February 1, 2019. In fact, she did not even make a declaration in her opposition to the first motion October 22, 2019. Moreover, her testimony was contradicted by Moore’s declarations. In the anti-SLAPP| motion, Moore admitted that the spreadsheet was created after the termination of Plaintiff’ services. “There was a spreadsheet that WEN FANG WANG provided to me that was prepared| after LAI’s representation of her ceased in which listed bank transactions from bank records. The bank records were inadvertently omitted from the Exhibit, but nothing on the spreadsheet was redacted. “(Moore Decl. in support of Anti-SLAPP filed 2-1-19, 95, emphasis added.) Moreover, in Moore’s declaration and opposition to the first motion, he testified that the 10 notations were made to him and Melen: 11 “LAI does not explain why the handwritten notations on a document produced in a brief 12 for a Mandatory Fee Arbitration is material to anything. Indeed, it is not. Nothing in any pleading has ever relied on the handwritten notations on the document in question and 13 LAI does not explain otherwise. Rather, the notations were made by WANG to explain to} her then current attorneys, MOORE and MELEN, what the document (a spreadsheet) 14 purported to represent. This spreadsheet was attached as an exhibit to a Mandatory Fee Arbitration brief that was prepared after LAI’s representation of her ceased in which 15 listed bank transactions from bank records. The bank records were inadvertently omitted from the Exhibit that MOORE referred to in the brief, but nothing on the spreadsheet was 16 presented to suggest, as LAI does, that the handwritten notes were represented to be those| communicated to him. It is simply the product of a fetid imagination and designed to 17 further harass WANG.” 18 (Moore’s Decl. for Opp. filed 10-22-19, 417; Moore’s Opp. filed 10-22-19, 1: 9:21, emphasis 19 added.) In other words, again, Moore admitted that the spreadsheet with the notes was no 20 presented to plaintiff before his services ended in January 2017. 21 Now, More attempts to explain away the discrepancies. 22 The sentence “This spreadsheet was attached as an exhibit to a Mandatory Fee Arbitration) 23 brief that was prepared after LAI’s representation of her ceased in which listed bank! transactions from bank records” (Exhibit M, §/17 hereto) is accurate. I did not attach the| 24 spreadsheet as an exhibit to a Mandatory Fee Arbitration brief until after I prepared the Mandatory Fee Arbitration brief. I prepared the Mandatory Fee Arbitration brief after 25 LAI’s representation of WANG had ceased. The date that LAI informed WANG he would no longer represent her was January 25, 2017, and I attached the spreadsheet on the 26 completed Mandatory Fee Arbitration brief on July 2, 2018 as reflected by the proof off service on the brief. (Exhibit I hereto). The sentence’s syntax of the remainder of the| 27 sentence (“in which listed bank transactions from bank records”) does not read nor was it] intended to convey that the spreadsheet was created after LAI’s representation of WANG 28 ceased as LAI attempts to construe it. -3- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT (Moore Decl., 429.) Moore argues that the subordinate clause “that was prepared after LAI’s| representation of her ceased” was intended not to qualify the subject “[t]his spreadsheet” but his| “brief.” This “interpretation” is no less than preposterous, as the fact that the arbitration brief camd after the termination of plaintiff's services is mostly meaningless and irrelevant, and there was n need for Moore to emphasize that fact. Moore further argues that his previous representation that the notes on the spreadsheet werd made for him and Melen was “incorrect” when he assumed the English word was intended for them. (Moore Decl., 429.) So according to Moore, even one and a half years elapsed after plaintiff raised the issue of forgery in his arbitration brief on July 10, 2018, he had never conversed the 10 issue with Wang, and did not even know to whom the words were directed. 11 In addition, Wang testified that before September 2016, she created the spreadsheet and 12 made the notes when she chose to have a search range from February 4 2015 through February 4: 13 2017. (Wang Decl., §10.) This is apparently perjurious, as it is common knowledge in on-ling 14 banking, in searching past transactions, one cannot put a future date. If there is any doubt about 15 it, the Court should at least allow plaintiff to depose the Discovery Bank. 16 Moreover, a trier of fact could infer that when Moore submitted his June 30, 2018 brief, he 17 had only the photo of the spreadsheet, and the copies of the bank statements were provided 18 afterwards merely for cover-up purposes. If Moore had have both the spreadsheet and the bank 19 statements, both of them should have been photographic. 20 In fact, Moore did not ask Wang for copies of bank records for Wang’s alleged transfers t 21 her mother and brother until July 17, 2018, after he submitted the forged spreadsheet on June 30. 22 2018 and after Plaintiff pointed out the forgery in his July 10, 2018 brief. (Exh. E attached t 23 Wang’s declaration, p2. “Yes, Michelle initiated the call. [{]] Can you send me copies the wire 24 transfers to your mother and brother to Taiwan?”) 25 Furthermore, had Wang’s testimony been true and the spreadsheet not a product of al 26 forgery, defendants could have rightfully used it. That makes defendants’ repeated claims off 27 “inadvertence” at the minimum, odd. In fact, defendants have claimed two types of inadvertency 28 One is inadvertency in failing to attach the bank records with the spreadsheet, another is -4- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT inadvertency in including the spreadsheet in the exhibits to Moore’s brief. “The bank records werd inadvertently omitted from the Exhibit that MOORE referred to in the brief.” (Moore’s Decl. for Opp. filed October 22, 2019. 417; Moore Decl. in support of Anti-SLAPP motion filed February) 1, 2019, §5.) Now Moore changed his story by claiming that the spreadsheet itself was an] inadvertent submission. (Moore Decl., 20, 23, 23, 934.) 2. The Chase statement with a period May 06, 2017 through June 06, 2017 None of defendants’ testimony changed a simple fact that the Chase Bank statement was created after plaintiffs legal representation was terminated and all the files were returned to Wang| January 30, 2017. In fact, that was three (3) months after Melen took on the family case.! and after 10 she met with a prospective expert and met with Wang on May 08, 2017.” 11 Nor did any defendants dispute the fact that this bank statement was attached as part off 12 Exhibit C to Wang’s verified cross-complaint filed May 21, 2019° and to Wang’s declaration i 13 support of the anti-SLAPP motion filed February 1, 2019.4 The bank statement only shows that on 14 May 22, 2017, after Wang transferred from her CIT bank to her Chase account, she made al 15 withdrawal. In other words, she did have access to more than $120,000 in her bank account before 16 plaintiff's services ended January, 2017. As such, it was impossible for plaintiff to utilize Famil 17 Code 2030 to request attorney’s fees from the opposing party.° In short, had plaintiff known it, he 18 19 | “T substituted in as counsel for WEN FANG WANG on February 28, 2017, in place and instead of X. YOUNG LAL, ESQ., who had remained as attorney or record, but had not provided WEN FANG WANG any services in the 20 family law case after terminating her as his client on January 25, 20 17.” (Melen’s Decl. filed February 1, 2019, §2.) 21 2 Melen’s Invoice. (Exh. 5.) 3 “WANG gave him the documentation of some of these transactions. This documentation (bank statements) showed] 22 the receipt of the money from her husband and the wire transfers ($89,290 on July 13, 2015 and $75,000 on August, 20 15). True and correct copies of these bank records are attached hereto as Exhibit C. LAI never inquired about 23 these transactions thereafter.” (Wang’s verified cross-complaint filed May 21, 2019, 420) *T gave him the documentation of some of these transactions. This documentation (bank statements) shows my 24 receipt of the money from my husband and the wire transfers ($75,000 on July 13 ,2015 and $89,290 on August 13, 2015) True and correct copies of these bank records are attached hereto as Exhibit C.” (Wang Decl. filed February 1 25 2019, $8.) 5 Under Family Code 2030, a lack of access to sufficient funds is a predicate for granting attorney’s fees and costs. 26 “(a) In a proceeding for dissolution of marriage, nullity of marriage, or legal separation of the parties, and in am proceeding subsequent to entry of a related judgment, the court shall ensure that each party has access to legal| 27 representation, including access early in the proceedings, to preserve each party’s rights by ordering, if necessary] based on the income and needs assessments, one party, except a governmental entity, to pay to the other party, or to 28 the other party’s attorney, whatever amount is reasonably ne ary for attorney’s fe and for the cost of maintaining] or defending the proceeding during the pendency of the proceeding. [{](b)When a request for attorney’s fees and costs -5- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT would not have agreed to a contingency agreement. To the extent that this document was purported to show that Wang transferred the $122,385 to her brother in Taiwan, it is at least questionable. Although there was a withdrawal, there is no indication that funds were ever transferred to her brother; certainly, let alone wire-transferred. “Tf weaker and less satisfactory evidence is offered when it was within the power of the party to| produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” (Evid. Code, § 412.) Moreover, on the spreadsheet, it shows a debit of $120,000 occurred) prior to a credit of $75,000; in other words, the $75,000 wire transfer could not be part of the $120,000 that Wang alleged to belong to her brother. 10 c. The Bar complaint 11 Plaintiff has never seen this bar complaint before. Plaintiff received an inquiry letter from] 12 the state bar, which contains no sexual harassment allegations. Accordingly, plaintiff was nol 13 aware that such an allegation was included in the bar complaint. (Lai Decl., 5, Exh “7.”) It appears 14 that the state bar determined the allegation was groundless and therefore did not include it in the 15 inquiry letter. 16 Nevertheless, the bar complaint contradicts defendants’ claims that plaintiff was full 17 informed of Wang’s financial condition by way of bank records, and that Wang’s newest claim] 18 that she sent plaintiff three (3) set of bank records. 19 In paragraph 27 of bar complaint, Wang states: “If X. Young Lai had asked me to prepare 20 my financial statements, I would have done so but he never did.” (Bar complaint, §27.) “As an 21 attorney, X. Young Lai did not ask me to prepare all bank statements whether active or close| 22 accounts in advance, which leads to inadequate preparation to counter the other counsel’ 23 accusation.” (Bar complaint, p.2.) Although Wang falsely claimed that she informed plaintiff abou 24 the two wire-transfers, before the retainer agreement was signed September 16, 2016. Nowherd 25 26 is made, the court shall make findings on whether an award of attorney’s fees and costs under this section ig 27 appropriate, whether there is a disparity in access to funds to retain counsel, and whether one party is able to pay fo: legal representation of both parties...” (Fam. Code, § 2030, emphasis added.) 28 -6- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT in the bar complaint did she asserted that she ever gave plaintiff any bank statements. Indeed, because defendants knew this bar complaint was damaging to their perjurious claims, in the anti-SLAPP motions, defendants not only refused to offer it in evidence, but also attempted to intimidate plaintiff into not showing it (because they did not know that plaintiff had no copy of it.) But he certainly did not have a unilateral right to waive WANG's right to confidentiality] (See Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 569 [A complainant, be he a lay person or an attorney, is entitled to have the fact that he has filed a complain against an attorney kept confidential until such time as the charges are found to be true an disciplinary action is taken].) However, I have not attached it to WANG's Declaration unti such time as this Court or the Office of Chief Trial Counsel for the State Bar determine: that confidentiality has been waived. (Moore Decl. filed February 1, 2018, §3.) “My State Bar Complaint (without attachments) and the 10 State Bar of California's letter acknowledging receipt for State Bar Case Number 17-0-01445 wil 11 be submitted as Exhibit I if this Court orders me to.” (Wang Decl. filed February 1, 2018, 419.) 12 d. Pencil or pen 13 The determination of the age of the notes on the spreadsheet is critical because it will show 14 whether defendants’ testimony is truthful or perjurious, and whether defendants intentionall. 15 framed plaintiff by adding the notes to implicate plaintiff's prior knowledge of the tw 16 transactions. 17 Here, to prevent forensic examination, again, for the first time, Defendant claimed the notes 18 on the spreadsheet were made by pencil, albeit interesting enough, with no certainty. They claim 19 that “[i]t looks like the writing on the spreadsheet is in pencil and not pen,” (Wang Decl., 412. 20 and that the notes on the Discovery Bank statement were made “also /ikely in pencil.” (Wang Decl. 21 13.) The statements are evasive, as the documents are in defendants’ possession, and it should 22 not be a difficult task to discern whether the notes were made in pencil or pen. Perhaps, defendant: 23 have already contemplated destroying the originals if the forensic examination is allowed to 24 proceed. Moreover, even if they were made in pencil, technology can still determine the age of the 25 writing. (Lai Decl., 94.) 26 27 Il. CONCLUSION 28 All defendants did is to deflect their guilt by smearing Plaintiff. The real question here is| -7- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT whether the forensic examination should be conducted. Had defendants’ declarations been truthful defendants certainly should have been glad to have the documents in question examined because the result could potentially vindicate them against “wrongful” allegations made by plaintiff. For the foregoing reasons, the Court should grant the plaintiff's motions. In addition. plaintiff also requests to depose Discovery Bank on the issue of whether the online banking syste! permits a client to use a future date in search of transactions, should the stay be lifted. Respectfully submitted, 10 11 1/21/2020 12 13 14 ZO X. Young Lai, Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SANTA CLARA I am employed in the County of Santa Clara, State of California. My business address is 28 N. First Street, San Jose, CA 95113. On 1/21/2020, I caused the foregoing document(s) described as Plaintiff's Reply for Motion to Lift Stay and Appoint an Expert on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelops addresses as stated on the attached service list: [ BY MAIL - I deposited such envelope in the mail at San Jose, California. The envelope was mailed with postage thereon fully prepaid. I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under the practice I would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at San Jose, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of deposit for mailing in affidavit. 10 [ ] BY PERSONAL SERVICE - I caused such envelope to be delivered by a process server employed by Pacific Coast Legal Services. 11 [x ] BY ELETRONIC TRANSMISSION - I transmitted a PDF version of this document by 12 electronic mail to the party(s) identified on the attached service list using the email address(es) indicated. 13 XxX BY OVERNIGHT DELIVERY — I deposited such envelope for collection and 14 delivery by GSO with delivery fees paid or provided for in accordance with ordinary practices. Tam readily familiar with the firm’s practice of collection and processing packages for overnight 15 delivery by GSO for receipt on the same day in the ordinary course of business. 16 x ] (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 17 (Federal) I declare under penalty of perjury under the laws of the United States of 18 America that the foregoing is true and correct. 19 1/21/2020 20 21 22 X. Young Lai 23 24 SERVICE LIST 25 Frank S. Moore, Esq., 26 Law Offices of Frank S. Moore, APC 27 235 Montgomery Street, Suite 440 28 San Francisco, California 94104 -1- PLAINTIFF’S REPLY FOR MOTION TO LIFT STAY AND TO APPOINT AN EXPERT