Motion-Secondary: BRYANT FU ET AL VS. TINA YAN ET AL

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FILED
Mark Lapham (SBN 146352) Superior Court of Catifornia,
751 Diablo Rd. County of San Francisco
Danville, CA 94526 10/09/2018
Phone 925-837-9007 See ea nnce ne
marklapham@sbeglobal.net Deputy Clerk

Attorney for Kaman Liu and Thai Ming Chiu

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION

BRYANT FU and CRYSTAL LEI, Case No.: CGC-17-556769
Plaintiffs,
CROSS-COMPLAINANTS KAMAN LIU
vs. AND THAI MING CHIU’S JOINT
TINA YAN et al., OPPOSITION TO CROSS-DEFENDANT
Defendants. STELLA CHEN’S DEMURRER TO CROSS
COMPLAINT
PROOF OF SERVICE
And RELATED CROSS-COMPLAINTS. Date: October 25, 2018
Time: 9:30 am
Dept: 302
STANDARD FOR DEMURRER

A demurrer tests only the sufficiency of pleading and may be granted only when a defect appears
on the face of a pleading or from matters judicially noticed by the court. Fiorito v. Superior
Court (1990) 226 Cal. App. 3d 433, 437. If the essential facts of any valid cause of action are

alleged, the complaint is good against a general demurrer. Quelimane Co. Inc. v. Stewart Title

Guar. Co. (1998) 19 Cal.4th 26, 28. For the purpose of testing the demurrer all material and
issuable facts properly pleaded must be regarded as true (Flores v. Arroyo (1961) 56 Cal.2d 492,
497), and if the complaint, liberally construed, can state cause of action, or if it is reasonably
possible that plaintiff can cure complaint by amendment, trial court should not sustain demurrer

without leave to amend (Dunkin v. Boskey (2000) 82 Cal. App. 4th 171, 180).A party is no longer required to plead with common law exactness, and less particularity is
needed where it appears from the nature of the allegations that the defendants must necessarily
possess full information concerning the facts of the controversy (Simons v. County of Kern
(1965) 234 Cal.App.2d 362, 367). It is unnecessary and improper to allege evidentiary facts
(Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310, 317), and plaintiff is not required to

plead negative facts to anticipate a defense (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416,
422).

RELEVANT ALLEGATIONS OF CROSS-COMPLAINT

Both cross-complainants KAMAN LIU and THAI MING CHIU allege that they are the
assignees for collection of a money judgment entered in San Francisco Superior Court case no.
CGC00311712, Title: FU VS FUNG, in favor of judgment creditors FLORENCE FUNG and
YUET LIN HO as to judgment debtor TONY FU. (Cross-Complaint at par. 8.)

The first cause of action for ENFORCEMENT OF JUDGMENT is only against defendant Tony
Fu.

The second cause of action for FRAUDULENT CONVEYANCE is against all cross-defendants.
The allegations in paragraphs 13 to 14 allege that:

Even though FU had lost his contractor’s license, he continues to work as an unlicensed
contractor. FU transferred to and continues to transfer to and/or let other cross-
defendants hold his assets, including at least $100,000 to his son Bryant Fu and other
sums of money to his sister STELLA CHEN.

FU fraudulently transferred or allowed other Cross-Defendants to take title to or hold
possession of his properties while at all times FU maintained control and dominion over
said properties.

The third cause of action for CONSPIRACY ON FRAUDULENT CONVEYANCE and the
fourth cause of action for AIDING AND ABETTING FRAUD are against all cross-defendants

and incorporate by reference the allegations of the second cause of action.DEMURRER SHOULD BE DENIED

A. ANOTHER ACTION PENDING

Cross-defendant STELLA CHEN’s (CHEN) contends that a demurrer can be on the ground that
there is another action pending between the same parties on the same cause of action. Be that as
it may, cross-complainants KAMAN LIU and THAI MING CHIU are separate individuals, so

their separate cross-complaints are not between the same parties.

As to cross-complaint filed by KAMAN LIU in Case no. CGC-16-553702, the court docket
shows that that cross-complaint was filed on 2017-04-26, but Notice of Stay of Proceedings
Regarding Bankruptcy was filed by Plaintiff Tony Fu on 2017-05-08. Summons in that action
has not been served on CHEN and she is not a party in that action, so there is no other action
pending between KAMAN LIU and CHEN.

B. STATUTE OF LIMITATIONS

CHEN asserts without factual support that “to get around his vexatious litigant status, Demas
Yan aka Dennis Yan ‘assigned’ his ‘claims’ to Cross-Complainant THAI MING CHIU, and
assigned the same claims to KAMAN LIU, his brother in law, as co-assignees.”. (Memorandum
in Support of Demurer, at 1:24-26.) Contrary to CHEN’s baseless assertion, the cross-
complainants are not assignees of claims from Demas Yan but are assignees of a money

judgment from Florence Fung. (See Cross-Complaint at paragraph 8, as set forth above.)

Based on the same false premise, CHEN argues that the statute of limitation had run on similar
sounding claims by Demas Yan in his prior actions against CHEN. Prior actions between CHEN
and other parties have no bearing on the claims here. The doctrine of collateral estoppel does not|
apply because there is no privity of the parties. For Collateral estoppel to apply, (1) the party
against whom the plea is raised was a party or was in privity with a party to the prior

adjudication, (2) there was a final judgment on the merits in the prior action and (3) the issue

wonecessarily decided in the prior adjudication is identical to the one that is sought to be relitigated.
(Coscia v. McKenna & Cuneo (2001) 25 Cal.4th 1194, 1201.)

C. FRAUD NOT PLEAD WITH SPECIFICITY

CHEN’s argues that fraud based on misrepresentation must be pled with specificity. Be that as it
may, the cross-complaint contains no claim based on misrepresentation. The cross-complaint
stated sufficient allegations to apprise cross-defendants of the nature of the claims against them.
A party is no longer required to plead with common law exactness, and less particularity is
needed where it appears from the nature of the allegations that the defendants must necessarily
possess full information concerning the facts of the controversy (Simons v. County of Kern
(1965) 234 Cal.App.2d 362, 367). It is unnecessary and improper to allege evidentiary facts
(Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310, 317), and a plaintiff is not required to

plead negative facts to anticipate a defense (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416,
422).

D. MISJOINDER OF PARTIES

CHEN argues that both the assignor and assignee are indispensible parties when there is a partial|
assignment of claim. Be that as it may, there is no partial assignment here. The cross-complaint

alleges that both cross-complainants are assignees for collection of a money judgment.

CONCLUSION

Cross-Defendant’s demurrer should be denied, or in the alternative, cross-complainants should

be granted leave to amend cross-complaint.

Dated: 10/8/2018
/s(MARK LAPHAM
Attorney for Cross-ComplainantsPROOF OF SERVICE
I declare that I am a resident of the State of California, over the age of 18 years, and not a party
to this action.
On this date, I served the following document(s):

CROSS-COMPLAINANTS KAMAN LIU AND THAI MING CHIU’S JOINT OPPOSITION
TO CROSS-DEFENDANT STELLA CHEN’S DEMURRER TO CROSS COMPLAINT

on the following parties by eserve:
Charlie Yu
Attorney for CHEN

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

true and correct.

Dated: 10/9/2018

LAG
MARK LAPHAM