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19CV342173
Santa Clara — Civil
STEPHEN A. SCOTT (SBN 67467)
CHARLES E. TILLAGE (SBN 177983)
HAYES SCOTT BONINO ELLINGSON
GUSLANI SIMONSON & CLAUSE LLP
999 Skyway Road, Suite 310
San Carlos, California 94070
Telephone: (650) 637-9100
Facsimile: (650) 637-9101
Attorneys for Defendant
GCRC CUPERTINO FUND, LP, AND
RECEIVER GREGORY STERLING
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
JUE WANG, MINGHUAN WANG, MIN
DUAN, YONGHONG REN, XIUPING LIANG,
YUNXIN PENG, JUNGANG YAO.
QIANLONG WANG, YINJIE XIE, TINGJIE
ZHONG, YANG ZHANG, YUE YU, MIJING
YAO, ZHUANGZHUANG ZHANG, JIAN LI,
JINGHONG YAN, NING LIU, PEIRUI LI, KAI
WANG, ZISEN JIN, SUQIN JIANG, SHIGUO
ZHANG, LAP TSUI, RUIQI TU, XINYING
CHU, YUDAN YAN, WEIJUN ZHANG, YAN
LV, XINYI WANG, SHUHONG FAN, WEI
LUO, JU GAO, YUAN JI, JING DONG,
YAOCONG LIU, CHENGENG QU, YINGHUI
WANG, JINGHUI XIA, YONG LU, YANPING
YANG, BEI HONG, DONGAO YU, MEILIN
LIU, and YUANYUAN ZHANG.
Plaintiffs,
v.
GCRC CUPERTINO FUND, LP, a California
Limited Partnership, GOLDEN CALIFORNIA
REGIONAL CENTER, LLC, a California
Limited Liability Company, and BETHANY
LIOU, an individual,
Defendants.
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S. Vera
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 6/10/2020 1:56 PM
Reviewed By: S. Vera
Case #19CV342173
Envelope: 4438389
TELEPHONE APPEARANCE
CASE NO. 19CV342173
EX PARTE APPLICATION OF
DEFENDANT GCRC CUPERTINO FUND,
LP AND RECEIVER GREGORY
STERLING FOR AN ORDER TO
APPOINT RECEIVER AND DISQUALIFY
COUNSEL; OR IN THE ALTERNATIVE,
AN ORDER SHORTENING TIME ON
MOTION TO APPOINT RECEIVER AND
DISQUALIFY COUNSEL
Date:
Time:
Dept.:
Judge:
, 2020
20
Hon. Socrates P. Manoukian
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CUPERTINO FUND’S EX PARTE APPLICATION FOR APPOINTMENT OF RECEIVER AND
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on at a.m. or as soon thereafter as
counsel may be heard, in the Courtroom of the Honorable Socrates Peter Manoukian, Department
20 of the above-entitled court, located at Old Courthouse, 2nd Floor, 161 North First Street, San
Jose, defendant GCRC CUPERTINO FUND, LP (“Cupertino Fund”) and Receiver Gregory
Sterling (“Sterling”) will and hereby do move for the following:
1. An order to appoint Sterling as Receiver for defendant Cupertino Fund in case
19CV342173 (“Wang Action”),
2. An order disqualifying the Buchalter Firm from representing defendant Cupertino Fund
in the Wang Action, OR
3. Or in the alternative, an order shortening time on motions to appoint Sterling Receiver
for Cupertino Fund and to disqualify the Buchalter Firm from representing defendant
Cupertino Fund.
This ex parte application requesting the immediate appointment of a Receiver is made
pursuant to California Code of Civil Procedure section 564(b)(1) and California Rules of Court,
Rule 3.1175 on the grounds that the Court previously appointed Gregory Sterling as the Receiver to
act on behalf of the Cupertino Fund in the related and now consolidated case 19CV348624 (“Gao
Action”).
This application requesting immediate appointment of Sterling as Receiver of Cupertino
Fund in the Wang Action is urgent and necessary because the Securities and Exchange
Commission, which currently holds approximately $50,000,000 of Cupertino Fund’s limited
partners’ funds, may take action to disburse these funds to all limited partners causing irreparable
harm to limited partners who wish to continue pursuing their pending I-526 Petitions under the EB-
5 Program. The Court’s immediate action is necessary to avoid real harm to the limited partners.
This application requesting the immediate disqualification of the Buchalter Firm is urgent
and necessary because Buchalter is no longer representing the interests of the Cupertino Fund and
the law firm has an insurmountable conflict of interest in its representation of the Cupertino Fund as
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previously found by the Court in its December 18, 2019 Order when it appointed Mr. Sterling as the
Receiver and disqualified Buchalter in the Gao Action.
Counsel for plaintiffs in the Wang and Gao Actions support this requested relief.
As set forth in the Declaration of Stephen A. Scott attached herewith, notice was given to
the Receiver and all counsel of this ex parte application. (Scott Decl. § 15.) Pursuant to California
Rules of Court 3.1202(a), plaintiffs identify the following parties and their attorneys:
Gregory Sterling
Receiver
15700 Winchester Boulevard
Los Gatos, CA 95030
gsterling@receiversinc.com
Matthew Sava
REID & WISE LLC
One Penn Plaza, Suite 2015
New York, NY 10119
sava@lreidwise.com
Attorneys for Plaintiffs JUE WANG, at al.
Michael Wachtell
BUCHALTER
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017
mwachtell@buchalter.com
Attorneys for Defendants GOLDEN
CALIFORNIA REGIONAL CENTER, LLC,
and BETHANY LIOU
Robert K. Lu
REID & WISE LLP
U.S. Bank Tower
633 West Fifth Street
26" Floor
Los Angeles, CA 90071
rlu@reidwise.com
Attorneys for Plaintiffs JUE WANG, at al.
Julie Bonnel-Rogers
STRUCTURE LAW GROUP, LLP
1754 Technology Drive, Suite 135
San Jose, CA 95110
jrogers@structurelaw.com
Attorneys for Plaintiffs LONG TENG GAO,
etal.
Peter Bales
BUCHALTER
55 Second Street, Suite 1700
San Francisco, CA 94105
pbales@buhalter.com
Attorneys for Defendants GOLDEN
CALIFORNIA REGIONAL CENTER, LLC,
and BETHANY LIOU
This application is made pursuant to this Notice, the Memorandum of Points and
Authorities, the Declaration of Stephen A. Scott, pleadings filed by counsel for plaintiffs in the
Wang and Gao Actions, the pleadings and records on file herein, and upon such further documents,
evidence and argument as may be before the Court.
Dated: June 10, 2020
HAYES SCOTT BONINO ELLINGSON
GUSLANI SIMONSON & CLAUSE LLP
By:
AE EE
"STEPHEN A. SCOTT, Attorneys for
Defendant GCRC CUPERTIN
FUND, LP and
RECEIVER GREGORY STERLING
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MEMORANDUM OF POINTS AND AUTHORITIES
L INTRODUCTION
The 81 Plaintiffs in the Wang and Gao Actions are limited partners in Cupertino Fund who
each invested $555,000 for purposes of obtaining green cards through the EB-5 Program.!
Defendant GOLDEN CALIFORNIA REGIONAL CENTER, LLC, a California Limited Liability
Company (“GCRC”) is the general partner of Cupertino Fund, and defendant BETHANY LIOU is
the sole managing member of GCRC. Plaintiffs filed their actions against GCRC and Liou alleging
claims for breach of fiduciary duty and fraud for misappropriating partnership funds. Cupertino
Fund was named in both actions as a nominal defendant. Buchalter appeared as counsel for all
defendants. Because of Buchalter’s conflict of interest in representing the general partner, Liou
individually and the Cupertino Fund, Plaintiffs in the Gao Action moved to disqualify Buchalter and
have Sterling appointed Receiver to protect the limited partners’ interest in the Cupertino Fund.
On December 18, 2019, Judge Peter Kirwan appointed Gregory Sterling as the Receiver for
the Cupertino Fund and disqualified the Buchalter firm from representing the Cupertino Fund in the
related Gao Action based on its conflict of interest in representing all 3 defendants. In its Order, the
Court found “there is a direct adverse interest with the law firm of Buchalter...concurrently
representing the Cupertino Fund and Defendants Bethany Liou and Golden California Regional
Center LLC because there interests are conflicting given the allegations in the complaint.” (Scott
Decl., § 1, December 18, 2019 Order attached hereto as Exh. A.)
On March 10, 2020, the Buchalter firm confirmed that due to its disqualification from
representing the Cupertino Fund in the Gao Action it was no longer “advising the GCRC Cupertino
Fund LP or its limited partners now as to the EB-5 Program issues.” (Scott Decl., 95, March 10,
2020 Buchalter Correspondence attached as Exh. B, p. 3.) Because Buchalter is no longer advising
the Cupertino Fund related to EB-5 issues, Gregory Sterling should be appointed as the Receiver and
Buchalter should be disqualified from representing Cupertino Fund in the Wang Action.
Beginning in March 2020, the parties attempted to enter a stipulation for the appointment of
' Cupertino Fund has a total of 91 limited partners.
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the Receiver, disqualification of Buchalter, and consolidation of the Gao and Wang cases for all
purposes. Although Buchalter initially agreed to these concepts, the stipulation was never finalized
because Buchalter subsequently, and without explanation, would not agree to the stipulation. (Scott
Decl., { 6, See April 6, 2020 Buchalter Email and Proposed Stipulation attached as Exh. C.)
On April 12, 2020, this Court entered an order consolidating the Gao and Wang matters for
pretrial and discovery purposes. (Scott Decl., § 7, April 12, 2020 Order attached as Exh. D.)
This application is necessary because the Receiver should be appointed to manage the affairs
for all the limited partners of the Cupertino Fund who are plaintiffs in the Gao and Wang Actions.
Furthermore, Buchalter has admitted that it is no longer serving the best interests of the Cupertino
Fund regarding EB-5 issues—which is the primary issue for which the Cupertino Fund exists. This
urgent request requires immediate action by the Court because the Securities Exchange Commission
(“SEC”) may soon take action that could cause irreparable financial and legal harm to the Cupertino
Fund limited partners who wish to continue pursuing their I-526 Petitions in the EB-5 Program.
The immediate appointment of the Receiver and disqualification of Buchalter is therefore
necessary to protect the legal and financial interests of the Cupertino Fund.
IL. BACKGROUND
A. The Buchalter Firm was Disqualified in Gao Action in December 2019
On January 25, 2019, the Wang Action case was filed in Santa Clara Superior Court, Case
No. 19CV342173 by attorneys from Reid & Wise on behalf of a group of limited partners from
Cupertino Fund against Defendants Bethany Liou and Golden California Regional Center, LLC and
against GCRC Cupertino Fund, LP (as a nominal defendant). In the Wang Action, the Buchalter
firm represents Defendants Bethany Liou, Golden California Regional Center, LLC and GCRC
Cupertino Fund, LP. The Wang Action is not yet at issue.
On May 25, 2019, the Gao Action case was filed in Santa Clara Superior Court, Case No.
19CV348624 and was filed by attorneys from Structure Law Group on behalf of a second group of
limited partners from GCRC Cupertino Fund, LP against Defendants Bethany Liou and Golden
California Regional Center, LLC and against GCRC Cupertino Fund, LP (as a nominal defendant).
In the Gao Action, Buchalter currently represents Defendants Bethany Liou and Golden California
CUPERTINO FUND’S EX PARTE APPLICATION FOR APPOINTMENT OF RECEIVER AND
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Regional Center, LLC. The Gao Action is not yet at issue. On April 12, 2020, this court issued its
Order consolidating the Gao and Wang Actions for case management and discovery, and
designating the Gao Action as the lead case.
On June 28, 2019, a Notice of Related Case was filed in the Wang Action and the Gao
Action.
On December 18, 2019, Judge Peter Kirwan issued an order in Gao Action appointing
Gregory Sterling as Receiver for the Cupertino Fund and disqualifying Buchalter as legal counsel
for the Cupertino Fund. The December 18, 2019 Order also authorized the Receiver to retain legal
counsel to represent the Cupertino Fund in that case.
On December 19 , 2019, Gregory Sterling filed his Receiver’s Oath and Bond in the amount
of $10,000 pursuant to the December 18, 2019 Order and assumed his role as Receiver for the
Cupertino Fund in the Gao Action.
On January 8, 2020, attorney Stephen A. Scott of Hayes Scott Bonino Ellingson Guslani
Simonson & Clause, LLP was retained by the Receiver and has appeared as legal counsel for the
Cupertino Fund in the Gao Action.
B. The Securities Exchange Commission Took Possession of Investor Funds
On November 4, 2019, the SEC issued its Order Instituting Cease-and-Desist Proceedings
against Defendant GCRC and Liou for their mismanagement of the Cupertino Fund. The SEC
alleged that GCRC and Liou misused the Cupertino Fund assets for their own benefits in violation
of the Securities Act of 1933. (Scott Decl., § 8, November 4, 2019 Order attached as Exh. E.)
As part of that SEC proceeding, Defendants GCRC and Liou agreed to settle the SEC
complaint by voluntarily surrendering the $50,000,000 of investor funds held by the Cupertino
Fund. This urgent request requires immediate action by the Court because the SEC may soon
distribute these funds to individual investors which will cause irreparable financial and legal harm
to the Cupertino Fund investors who wish to continue processing their I-526 Petitions in the EB-5
Program. This is because any investor in Cupertino Fund who receives a direct distribution will
lose his/her right to pursue their pending I-526 Petition. A new I-526 Petition will require payment
of $900,000, instead of the $500,000 payment required for the pending petitions, and will take
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many years to process. Buchalter estimates it will take 10-12 years to have new I-526 Petitions
considered. (Scott Decl., § 5, Exh. B, p. 3; Scott Decl., 4 8, November 4, 2019 SEC Order attached
as Exh. E.) In addition, the recently received Golden Gate Global proposal stated that it would take
over a decade for new petitions to be considered. (Scott Decl., { 10, June 1, 2020 Golden Gate
Global Proposal, attached as Exh. G.)
As indicated in Exhibit G, plaintiffs’ counsel in the Wang and Gao Actions and the Receiver
have received a proposal from a developer, Golden Gate Global (“GGG”), which is well versed in
the actions necessary to complete I-526 Petitions. Mr. Sterling believes this proposal, and perhaps
other proposals, should be explored further, and his appointment as Receiver for the Cupertino
Fund in the Consolidated Actions will provide for a unified voice to interact with the SEC and
prospective developers, thereby providing protection for the legal and financial rights of limited
partners who wish to pursue their I-526 Petitions. (Scott Decl., § 10, June 1, 2020 Golden Gate
Global Proposal, attached as Exh. G.)
Il. THE APPOINTMENT OF THE RECEIVER IN THE WANG ACTION IS IN
THE BEST INTEREST OF THE PLAINTIFFS
The appointment of a receiver is appropriate where necessary to protect a party’s interest in
property or funds in danger of destruction, removal, or misappropriation. (CCP § 564; Maggiora v.
Palo Alto. Inc. (1967) 249 Cal.App.2d 706, 710.) California Code of Civil Procedure section
564(b)(1) provides for the appointment of a receiver:
“in an action ... between partners or others jointly owning or
interested in any property or fund, on the motion of the plaintiff, or of
any party whose right to or interest in the property or fund, or the
proceeds thereof, is probable, and where it is shown that the property
or fund is in danger of being lost, removed, or materially injured.”
California Rule of Court, Rule 3.1175 identifies the required elements necessary to show for
appointment of the Receiver:
(1) The nature of the emergency and the reasons irreparable injury
would be suffered by the applicant during the time necessary for a
hearing on notice;
(2) The names, addresses, and telephone numbers of the persons in
actual possession of the property for which a receiver is requested, or
of the president, manager, or principal agent of any corporation in
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(3) The use being made of the property by the persons in possession;
and
* * *
Those elements were met when Judge Kirwan appointed Gregory Sterling as Receiver for
Cupertino Fund in the Gao Action. The same justification for the appointment of Receiver exists
here where the interests of the Cupertino Fund are no longer protected by Liou in her capacity as
the general partner. (December 18, 2019 Order, Exh. A.) The partnership funds are being held by
the SEC and distribution to the Cupertino Fund should be overseen by the Receiver without any
interference by Liou or GCRC.
A. The Receiver Has the Power to Take Possession of Partnership Property
“A receiver is an agent and officer of the court, and is under the control and supervision of
the court. [Citations.]” (City of Chula Vista v. Gutierrez (2012) 207 Cal.App.4th 681, 685.) With
the supervision of the Court and pursuant to Code of Civil Procedure section 568, the Receiver has
the power to take possession of partnership property:
“The receiver has, under the control of the Court, power to bring and
defend actions in his own name, as receiver; to take and keep
possession of the property, to receive rents, collect debts, to
compound for and compromise the same, to make transfers, and
generally to do such acts respecting the property as the Court may
authorize.” [emphasis added.]
The current urgency necessitating the Court’s appointment of the Receiver concerns the
SEC’s plan to distribute the $50,000,000 in partnership funds back to the limited partners.
However, the limited partners seeking to maintain the Fund’s EB-5 status could potentially lose
their right to obtain a green card if the partnership funds are distributed in a manner inconsistent
with the rules governing EB-5 qualification. The Receiver should be allowed to take possession of
the partnership funds to preserve the Fund’s EB-5 qualification status. The Receiver is in a better
position to distribute the investment funds to the remaining limited partners who do not wish to
proceed with the EB-5 process.”
2 Mr. Sterling understands that he must obtain approval of this court before entering into any
transaction on behalf of Cupertino Fund or disbursing funds to limited partners.
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B. The Receiver Has the Power to Retain Counsel for the Partnership
Pursuant to Rules of Court, Rule 3.1180, the Receiver has the power to retain counsel to
represent the interests of the partnership. Here, with the Court’s approval in the Gao Action, the
Receiver retained Stephen A. Scott from the firm Hayes Scott Bonino Ellingson Guslani Simonson
& Clause, LLP. (December 18, 2019 Order, Exh. A.) For the same reasons, the Court should
approve the Receiver’s retention of the Hayes Scott firm to represent the Cupertino Fund in the
Wang Action.
IV. THE BUCHALTER FIRM SHOULD BE DISQUALIFIED FROM
REPRESENTING THE CUPERTINO FUND
The Buchalter firm has confirmed that it is no longer protecting the interests of the
Cupertino Fund as it is no longer “advising the GCRC Cupertino Fund LP or its limited partners
now as to the EB-5S Program issues.” (March 10, 2020 Buchalter Correspondence attached as Exh.
C, p. 3.) The Cupertino Fund only exists to participate in the EB-5 Program and the Fund requires
legal representation to assist with securing access to the partnership funds. Because of the conflict
of interest, Buchalter was properly disqualified in the Gao Action when Judge Kirwan found “there
is a direct adverse interest with the law firm of Buchalter...concurrently representing the Cupertino
Fund and Defendants Bethany Liou and Golden California Regional Center LLC because there
interests are conflicting given the allegations in the complaint.” (December 18, 2019 Order, Exh.
A.) The Hayes Scott firm was retained by the Receiver when Buchalter was disqualified.
It is disqualifying for an attorney to engage in concurrent representation of clients unless the
clients waive the conflict. (Cal. Rules Prof. Conduct, Rule 1.7.) A request to disqualify counsel is
vested in the sound discretion of the trial court. (DP Pham, LLC v. Cheadle (2016) 246 Cal. App.
4th 653, 677.) In the absence of written consent, it is automatic or “per se” disqualification for
simultaneous representation of current clients with adverse interests. (Flatt v. Superior Court
(1994) 9 Cal.4th 275, 284 [a client “cannot long be expected to sustain the level of confidence and
trust in counsel” when conflicting interests exist.)
When ruling on a disqualification request, “[t]he paramount concern must be to preserve
public trust in the scrupulous administration of justice and the integrity of the bar. The important
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right to counsel of one’s choice must yield to ethical considerations that affect the fundamental
principles of our judicial process.” (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47-48.)
Here, the limited partners in the Wang Action do not consent to Buchalter’s representation of their
interest and support this application to disqualify Buchalter. (Scott Decl., {{ 6-10.)
Accordingly, Buchalter should be disqualified in the Wang Action on the same basis as it
was disqualified in the related and now consolidated Gao Action.
Vv. ALTERNATIVELY, THE COURT CAN SHORTEN TIME FOR MOTIONS
ON THE ISSUES IDENTIFIED IN THIS EX PARTE APPLICATION
Pursuant to Code of Civil Procedure section 1005, all moving and supporting papers need to
be served and filed at least 16 court days prior to the hearing on the motion. (Code of Civ. Proc. §
1005(b).) However, per California Rule of Court 3.1300(b), an order shortening time may be
granted by the Court on a showing of good cause.
“The court, on its own motion or on application for an order
shortening time supported by a declaration showing good cause, may
prescribe shorter times for the filing and service of papers than the
times specified in Code of Civil Procedure section 1005.”
Here, because of the urgency of the requested relief, i.e., appointment of Receiver and
disqualification of counsel to allow Receiver to interact with the SEC and potential developers in
order to protect those limited partners in the Wang and Gao Actions who wish to continue
processing their 1-526 Petitions, the Court should enter an order allowing the motions for relief
heard on shortened time or heard on a date convenient for the Court.
VI. TEMPORARY AND PARTIAL STAY ORDER
On June 4, 2020, the Court issued its Order on the Stipulated Request for Temporary and
Partial Stay of Action submitted by counsel in the Wang Action. (Scott Decl., { 13, Order, Exhibit
J.) Mr. Sterling and Hayes Scott were not parties or counsel to this stipulation, but we understand
from Wang’s counsel that this Stipulation was primarily intended to address pending discovery
issues. The Court modified the Stipulation stating, “All calendar matters (and any law & motion,
CMCs etc. will be continued to 28 July 2020 at 10 am in Department 20.” (Scott Decl., {| 13.) We
are unclear as to the effect of this Order on this ex parte application and relief request. However, if
necessary, the exigent circumstances described herein support a modification of this Stay Order to
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allow hearing and granting of the requested orders on this ex parte application or, in the alternative,
setting a hearing on the motion on shortened time.
VII. CONCLUSION
Based on the foregoing, Plaintiffs respectfully request the Court grant the requested relief:
1. An order to appoint the Receiver, Gregory Sterling, for defendant Cupertino Fund in the
Wang Action;
2. An order for disqualifying counsel, the Buchalter Firm, for defendant Cupertino Fund in
the Wang Action; or
3. In the alternative, an order shortening time on motions to appoint receiver for and
disqualify counsel for defendant Cupertino Fund, and for an order allowing the Receiver
to receive investor funds held by the Securities and Exchange Commission.
Dated: June 10, 2020 HAYES SCOTT BONINO ELLINGSON
GUSLANI SIMONSON & CLAUSE LLP
AS AE
y:
STEPHEN A. SCOTT
CHARLES E. TILLAGE
Attorneys for Defendant
GCRC CUPERTINO FUND, LP and RECEIVER
GREGORY STERLING
DECLARATION OF STEPHEN A. SCOTT
I, Stephen A. Scott, declare as follows:
1. I am an attorney licensed to practice before all the States of California. Iama
partner with the firm at Hayes, Scott, Bonino, Ellingson, Guslani, Simonson & Clause, LLP,
attorneys of record for the Cupertino Fund in the Gao Action. I have personal knowledge of each
matter stated herein and, if called as a witness, I could and would competently testify thereto.
2. On December 18, 2019, Judge Peter Kirwan entered his Order granting the Motion
to Appoint Greg Sterling of Receivers, Inc. as Receiver of Defendant GCRC Cupertino Fund, L.P.
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and disqualifying Buchalter, APC from further representation of Cupertino Fund brought by
plaintiffs’ counsel in Case No. 19CV348624 ("Gao Action"). A true and correct copy of Judge
Kirwan’s Order is attached hereto as Exhibit A. This Order did not address receivership or
disqualification of Buchalter regarding Cupertino Fund in the Related Case No. 19CV342173
(“Wang Action”), because no motion for appointment of Receiver and disqualification of counsel
was filed in the Wang Action, pending before Judge Pierce at that time.
3. Pursuant to Judge Kirwan’s December 18, 2019 Order, Sterling retained my firm,
Hayes Scott, to represent Cupertino Fund in the Gao Action and our firm filed Notice of
Representation of Cupertino Fund on January 8, 2020.
4. The Buchalter firm is still counsel of record for the Cupertino Fund in the Wang
Action. On January 22, 2020 I participated in a telephone conference attended by the Receiver and
counsel for the parties in the Gao Action to discuss issues pending in the Gao Action, including
execution of a Protective Order to facilitate transfer of Cupertino Fund's books and records to
Sterling, consolidation of the Gao and Wang actions and Buchalter’s continued representation of
Cupertino Fund in the related Wang Action. Messrs. Bales and Wachtell of the Buchalter firm
acknowledged during this call that Buchalter’s further representation of Cupertino Fund in the
Wang Action was problematic in light of Judge Kirwan’s disqualification order in the Gao Action.
5. On March 10, 2020, the Buchalter firm confirmed that due to its disqualification
from representing the Cupertino Fund in the Gao Action it was no longer “advising the GCRC
Cupertino Fund LP or its limited partners now as to the EB-5 Program issues.” A true and correct
copy of the March 10, 2020 Buchalter Correspondence is attached hereto as Exhibit B, p. 3.
6. Beginning in March 2020, the parties attempted to enter a stipulation for the
appointment of the Receiver, disqualification of Buchalter, and consolidating the Gao and Wang
cases for all purposes. Although Buchalter initially agreed to these concepts, the stipulation was
never finalized because Buchalter subsequently, and without explanation, would not agree to the
stipulation. A true and correct copy of the April 6, 2020 Buchalter Email evidencing Mr. Bales’
agreement to the stipulation is attached hereto as Exhibit C.
Ue On April 12, 2020, this Court entered an order consolidating the Gao and Wang
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matters. In your Order, the Court noted the appointment of Sterling as Receiver, the
disqualification of Buchalter and the engagement of Hayes Scott for the Cupertino Fund pursuant to
Judge Kirwan December 2019 Order. The Court also noted that, “Despite repeated demands,
Buchalter refuses to recuse itself as counsel of record in the Related [Wang] Action.” In addition to
ruling on the Motion to Quash Subpoena, the Court issued its Order transferring the Wang Action to
this Department for consolidation with the Gao Action for pretrial/discovery purposes only. A true
and correct copy of the April 12, 2020 Order is attached as Exh. D.
8. On April 21, 2020, I emailed a letter to Messrs. Wachtell and Bales responding to
Mr. Wachtell’s March 10, 2020 letter and requesting additional information and explanation
regarding his concerns about the potential effect of the Gao and Wang Actions on the pending I-526
Petitions filed by Cupertino Fund limited partners. I also indicated that Hayes Scott was protecting
time to respond to the Gao and Wang Actions on behalf of Cupertino Fund and recommended that
they execute the Stipulation that had been circulated before this Court’s Order that would appoint
Sterling as Receiver and Hayes Scott as counsel for Cupertino Fund in the now consolidated action.
A true and correct copy of my April 21, 2020 letter is attached as Exhibit E. I have not received a
response to this letter.
9. On May 21, 2020, I sent an email to Messrs. Bales and Wachtell attaching a draft
Stipulation to appoint Mr. Sterling as Receiver and Hayes Scott as counsel for Cupertino Fund, a
true and correct copy of which is attached as Exhibit F. I received no response to this email or
requested Stipulation either.
10. As indicated by the attached Exhibit G, plaintiffs’ counsel in the Wang and Gao
Actions and the Receiver have received a proposal from a developer, Golden Gate Global, which is
well versed in the actions necessary to complete I-526 Petitions. Mr. Sterling believes this
proposal, and perhaps other proposals, should be explored further, and his appointment as Receiver
for the Cupertino Fund in the Consolidated Actions will provide for a unified voice to interact with
the SEC and prospective developers, thereby providing protection for the legal and financial rights
of limited partners.
11. Prior to filing this application I sent an email to Messrs. Bales and Wachtell on June
1144283 -13-
CUPERTINO FUND’S EX PARTE APPLICATION FOR APPOINTMENT OF RECEIVER AND
DISQUALIFICATION OF COUNSEL--Case No. 19CV342173Co Oo ON DO oO RF WwW DY
3, 2020 again attaching a Stipulation and explaining the reasons Buchalter should voluntarily agree
to appoint Mr. Sterling as Receiver and Hayes Scott as counsel for Cupertino Fund in order to avoid
the time and expense of this application and potential great harm that will result to those limited
partners who wish to continue with their pending I-156 Petitions should the SEC decide to
distribute funds to individual limited partners. A true and correct copy of this email and Stipulation
is attached as Exhibit H.
12. On June 4, 2020, Peter Bales responded to my June 3, 2020 email and would not
agree to the terms of the stipulation. Mr. Bales stated that his clients had not authorized the
substitution of counsel and the Wang parties had recently agreed to a limited stay of the Wang
Action. A true and correct copy of Mr. Bales’ June 4, 2020 email and my response is attached as
Exhibit I.
13. Attached as Exhibit J is a true and correct copy of the Order issued by the Court on
June 4, 2020 on the Stipulated Request for Temporary and Partial Stay of Action submitted by
counsel in the Wang Action. Mr. Sterling and our office was not involved in the negotiation of this
Stipulation, which I understand from Wang’s counsel was primarily motivated by pending
discovery issues. The Court modified the Stipulation stating, “All calendar matters (and any law &
motion, CMCs etc. will be continued to 28 July 2020 at 10 am in Department 20.” We are unclear
as to the effect of this Order on this ex parte application and the relief requested. However, if
necessary, the exigent circumstances described herein support a modification of this Stay Order to
allow hearing and granting of the requested orders on this ex parte application or, in the alternative,
setting a hearing on the motion on shortened time.
14. A true and correct copy of the motion to appoint Gregory Streeling as the Receiver
and disqualify Buchalter is attached hereto as Exhibit K without the exhibits; the exhibits will be
included in the filing of the motion if necessary.
15. On June 8, 2020, I emailed the Receiver and counsel for all parties before 10:00 a.m.
and notified them that our office planned to appear ex parte before this Court on a time and place
ordered by the Court and seek the relief stated in this ex parte application. Based on Mr. Bales June
4, 2020 email, I believe his office will appear and oppose this ex parte. Attached hereto as Exhibit
1144283 -14-
CUPERTINO FUND’S EX PARTE APPLICATION FOR APPOINTMENT OF RECEIVER AND
DISQUALIFICATION OF COUNSEL--Case No. 19CV342173Co Oo ON DO oO RF WwW DY
K is a true and correct copy of my June 8, 2020 email.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct. Executed on June 10, 2020 in San Ce eS
Stephen A. Scott
1144283 -15-
CUPERTINO FUND’S EX PARTE APPLICATION FOR APPOINTMENT OF RECEIVER AND
DISQUALIFICATION OF COUNSEL--Case No. 19CV342173EXHIBIT AJulie Bonnel-Rogers, Esq. (State Bar No. 176200)
Jjrogers@structurelaw.com
STRUCTURE LAW GROUP, LLP
1754 Technology Drive, Suite 135
San Jose, California 95110
Telephone: (408) 441-7500
Facsimile: (408) 441-7501
Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION
LONG TENG GAO, HUANXI WU, XIAOBO
HUANG, MINGDONG HE, JIAWEN BAO,
LIUHONG LIANG, BO LYU, YINGCHAO
WU, XIAOLI LU, SHAOJING WANG, JUN
JING XU, ZHAOLIN ZHANG, AILING LIU,
XIAOHONG SHE, RUIJIA LU, YING QIAN,
JUNRU DUAN, BO WU, YIFEI GAO, SUN
HAI YAN, DONGQUN LI, LIJIA LIU, FENG
CHEN, YUHAO PAN, RUOYI LIANG, and
ZHUANGZHUANG ZHANG
Plaintiffs,
v.
BETHANY LIOU, an individual; GOLDEN
CALIFORNIA REGIONAL CENTER, LLC, a
California Limited Liability Company; GCRC
CUPERTINO FUND, LP, a California Limited
Partnership; and DOES 1-100,
Defendants. |
CASE NO. 19CV348624
[NOTICE OF RELATED CASE NO.
19CV342173 FILED JUNE 28, 2019]
COURT ORDER:
1. GRANTING PLAINTIFFS’
MOTION FOR THE
APPOINTMENT OF A RECEIVER;
2. GRANTING PLAINTIFFS’
MOTION TO DISQUALIFY LEGAL
COUNSEL FOR DEFENDANT
GCRC CUPERTINO FUND LP;
3. DENYING PLAINTIFFS’ EX
PARTE APPLICATION FOR A
TRO/PYOSC
The Honorable Judge Peter Kirwan
Complaint Filed: May 22, 2019
Trial Date: None
On December 2, 2019, the Honorable Judge Peter Kirwan presiding, the continued
hearings on Plaintiffs’ Motion for Receiver, Plaintiffs’ Motion to Disqualify Legal Counsel, and
Plaintiffs’ Ex Parte Application for a Temporary Restraining Order/Preliminary Injunction/Order
to Show Case (collectively “Motions”) came for hearing in Department 19 of the above referenced
-1-
ORDER GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF A RECEIVER; ORDER
GRANTING PLAINTIFFS’ MOTION TO DISQUALIFY LEGAL COUNSEL; ORDER DENYING EX PARTE
APPLICATION FOR TRO/PI/OSCn
xn a
court. Upon consideration of the Motions, supporting papers and documents, the arguments of
counsel, and all other records and matters filed and before the Court, and good cause existing, IT
IS HEREBY ORDERED that:
1. Plaintiffs’ Motion for the Appointment of a Receiver is GRANTED.
The Court hereby appoints Gregory Sterling of Receivers, Inc., 15700 Winchester Blvd.,
Los Gatos, CA 95030; (408) 354-9797; as Receiver pursuant to CCP § 564 for Defendant GCRC
Cupertino Fund, L.P., a California limited partnership (“Cupertino Fund”) subject to his filing his
oath and bond in the amount of $10,000 as required by CCP§ 567.
The Receiver is an agent of the Court and is directed and authorized to retain legal counsel
for Cupertino Fund. Receiver is authorized to confer with retained legal counsel for the Cupertino
Fund. The Court hereby instructs Receiver Gregory Sterling to report to the Court, and all Parties
to the case, of the name/address/phone/email of legal counsel retained by the Receiver to represent
him as Receiver for the Cupertino Fund no later than January 10, 2019.
The Court hereby instructs legal counsel for the Cupertino Fund to report to Receiver
Gregory Sterling regarding its legal representation of the Cupertino Fund. The Court hereby
directs Receiver Gregory Sterling to petition the Court for instructions in the event that the
Receiver has questions or concerns regarding the best interests of the Cupertino Fund. The Court
hereby directs Receiver Gregory Sterling and designated counsel to copy legal counsel for
Plaintiffs, and Defendants Bethany Liou and Golden California Regional Center LLC on any and
all reports to, or communications with, the Court.
The Court hereby grants Receiver Gregory Sterling the authority to accept the transfer of
all “Books and Records” (as defined below) pertaining to the Cupertino Fund received from
Defendants Bethany Liou and Golden California Regional Center LLC. The Court hereby grants
Receiver Gregory Sterling the authority to review and inventory the Books and Records
pertaining to the Cupertino Fund received from Defendants Bethany Liou and Golden California
Regional Center LLC and the authority to confer with his retained counsel regarding the content
of said Books and Records. All rights of privacy of limited partners of Cupertino Fund who are
Ee
ORDER GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF A RECEIVER; ORDER
GRANTING PLAINTIFFS’ MOTION TO DISQUALIFY LEGAL COUNSEL; ORDER DENYING EX PARTE
APPLICATION FOR TRO/PI/OSCnot Plaintiffs in this Action, are to be kept confidential by the Receiver and his counsel, and not
disclosed to any other Parties in this Action, or third parties, without the express written consent
of such other investors, except by an appropriate order if this Court.
The Court hereby orders Defendants Bethany Liou and Golden California Regional Center
LLC to turn over all “Books and Records” pertaining to Cupertino Fund to Receiver Gregory
Sterling at 15700 Winchester Blvd., Los Gatos, CA 95030; (408) 354-9797, no later than
December 18, 2019. For the purpose of this Order “Books and Records” shall have the same
meaning and scope as defined in Section 4.5 of the Limited Partnership Agreement of Cupertino
Fund and California Corporations Code §15901.11, and any and all backup documents that relate
to the bookkeeping and record keeping of Cupertino Fund.
The Court hereby instructs the Plaintiffs in this Action to pay the fees and costs of the
Receiver Gregory Sterling, and legal counsel for the Cupertino Fund, subject to a cost-shifting
motion as litigation progresses or concludes based upon the evidence.
2. Plaintiffs’ Motion for Disqualification of Legal Counsel for Defendant GCRC
Cupertino Fund, LP is GRANTED.
The Court finds that there is a direct adverse interest with the law firm of Buchalter, a
professional corporation (“Buchalter”) concurrently representing the Cupertino Fund and
Defendants Bethany Liou and Golden California Regional Center LLC because their interests are
conflicting given the allegations in the complaint.
The Court hereby disqualifies the law firm of Buchalter (“Buchalter”) and its attorneys
from representing Defendant Cupertino Fund in this Action.
3. Plaintiffs’ Application for a Temporary Restraining Order/Preliminary
Injunction/Order to Show Case is DENIED.
The Court hereby denies without prejudice Plaintiffs’ Application for a Temporary
Restraining Order/Preliminary Injunction/Order to Show Case enjoining Buchalter, and its
attorneys from deleting, destroying, removing, altering, amending, modifying, redirecting,
editing or in any way changing the files, accounts, documents, status, books and records
-3-
ORDER GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF A RECEIVER; ORDER
GRANTING PLAINTIFFS’ MOTION TO DISQUALIFY LEGAL COUNSEL; ORDER DENYING EX PARTE
APPLICATION FOR TRO/PI/OSCpertaining to their legal representation of the Cupertino Fund in any and all matters including but
not limited to this Action, the Related Case and the SEC Case.
The Court hereby denies without prejudice Plaintiffs’ Application for a Temporary
Restraining Order/Preliminary Injunction/Order to Show Case enjoining Buchalter from refusing
to make available for inspection and copying documents, books and records, pertaining the legal
representation of GCRC Cupertino Fund in any and all matters inclu ing but not limited to this
Action,, the Related Case and the SEC Case.
The Court hereby orders Defendants Bethany Liou and Golden California Regional Center
LLC to turn over all “Books and Records” pertaining to Cupertino Fund to Receiver Gregory
Sterling subject to the terms and conditions specified in the Court’s Order Granting Plaintiffs’
Motion for the Appointment of a Receiver, supra.
IT IS SO ORDERED.
Dated: v= | 1] 14 Coe a. YO -e
Hon. Judge of the Superior Court
Approved as to Form:
BUCHALTER
-4-
ORDER GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF A RECEIVER; ORDER
GRANTING PLAINTIFFS’ MOTION TO DISQUALIFY LEGAL COUNSEL; ORDER DENYING EX PARTE
APPLICATION FOR TRO/PI/OSCEXHIBIT BBuchalter
1000 Wilshire Boulevard
Suite 1500
Los Angeles, CA 90017
213.891.0700 Phone
213.896.0400 Fax
File Number: G0093-0003.
213.891.5460 Direct
March 10, 2020 MWACHTELL@buchalter.com
VIA FEDERAL EXPRESS
And via email
HAYES SCOTT
Gregory Sterling
Court-appointed Receiver MAR 1 1 2020
c/o Receivers Incorporated ee
15700 Winchester Blvd. wa ted P—
Los Gatos, CA 95030 TIME: LO: SS
Email:gsterling@receiversinc.com
Stephen A. Scott, Esq.
Vivian V. Countryman, Esq.
Hayes Scott Bonino Ellingson Guslani Simonson
& Clause, LLP
999 Skyway Road, Suite 310
San Carlos, CA 94070
Email: sscott@hayesscott.com
Re: Julie Wang, et al. v. GCRC Cupertino Fund, LP, etc., et al.
(Santa Clara Superior Court Case No. 19CV342173);
Long Teng Gao, et al. v. Bethany Liou, etc., et al.
(Santa Clara Superior Case No. 19CV348624) (collectively the “Actions”)
Dear Lady and Gentlemen:
On behalf of Golden California Regional Center, LLC (“GCRC”), the General Partner of
GCRC Cupertino Fund, LP, a California limited partnership. I am writing to advise you of recent
information that has come to our attention that is relevant and critical to your management and
representation of GCRC Cupertino Fund LP.
buchalter.com
Los Angeles
Napa Valley
Orange County
Portland
Sacramento
San Diego
San Francisco
Scottsdale
BN 39740157v4 SeattleBuchalter
Gregory Sterling
Stephen A. Scott, Esq.
March 10, 2020
Page 2
We are advised that on June 27, 2019 there was a meeting held of the limited partners of
GCRC Cupertino Fund LP at the office of GCRC at which time a Notice and Election of Limited
Partners of GCRC Cupertino Fund LP, dated June 17, 2019 was discussed that had been
previously distributed to all limited partners, a copy of which is attached for your information.
Prior to the meeting the limited partners received an emailed communication from GCRC
inviting them to withdraw from the proposed project for GCRC Cupertino Fund LP, get their
money back, or transfer to another project. A Proposal to Amend LPA was also transmitted and
copies of these communications are also enclosed. The limited partners were all invited to travel
to California, with all expenses paid to cover the cost of their visit. At the June mecting the
limited partners were given the opportunity to discuss and participate in alternative Qualifying
Investments which would give them the best opportunity to obtain approval of their 1-526
Petitions, preserve their green cards for approved Petitions, and preserve the priority dates for
consideration of pending and Amended 1-526 Petitions. We understand that the plaintiffs in the
Actions were represented at the June 2019 meeting by their respective attorneys who represented.
that they appeared as proxies for each of their respective clients and only one other investor
appeared in person. Jason Gottlieb, Esq. who represented GCRC Cupertino Fund LP, GCRC, and
Bethany Liou as its manager, on immigration and SEC matters, attended by phone.
We understand that several limited partners signed the Limited Partner Election forms
provided and that Amended I-526 Petitions were filed by many imited partners. We also know
that several limited partners who were originally named plaintiffs in the Actions withdrew from
those Actions. We are further advised that due to subsequent and more recent developments in
China, many more limited partners have filed Amended I-526 Petitions or intend to do so in the
near future. We are informed that some Amended 1-526 Petitions were filed by limited partners
after November 21, 2019 when the Capital Contribution requirements were increased from
$500,000 to $900,000 and still more are yet to be filed. We do not know whether the increased
Capital Contribution required for the original limited partners of GCRC Cupertino Fund LP will
be the original $500,000 or $900,000 or what affect the date that the Amended 1-526 Petitions
were, or may be filed, will have on their required Capital Contribution. We also assume that the
limited partners who will be receiving the return of their original investments of $500,000 from
the SEC may want to assign those funds to GCRC Cupertino Fund LP and its General Partner for
alternative Qualifying Investments. We do not know whether the assignment of those funds, or
the payment of new funds, disqualifies them from approval of their Amended I-526 Petitions.
To be clear, this firm has not advised GCRC Cupertino Fund LP with regard to
immigration matters, and as you know from our pleadings in the pending Actions, we deny ever
having any contact with, or representing the individual limited partners at any time. Further, we
were not involved in the June 2019 meeting of the limited partners discussed. This firm’s
representation has solely been to defend the defendants in the pending Actions. We were not
BN 39740157v4Buchalter
Gregory Sterling
Stephen A. Scott, Esq.
March 10, 2020
Page 3
involved in the negotiations with, or agreements reached, between GCRC/Liou and the SEC.
Further, we do not know the current status of what we believe are 15 outstanding approved I-526
Petitions or the status of approximately 75 pending I-526 Petitions.
The plaintiffs in the Actions are seeking judicial dissolution of GCRC Cupertino Fund LP
and should this occur, we are informed by qualified counsel that the limited partners of GCRC
Cupertino Fund LP may lose issued green cards and their priority dates for EB-5 Program status.
If they have to reapply, we are told that there is a wait time of over 10-12 years or more just to
have Petitions considered. This will affect those limited partners who are not plaintiffs in cither
of the Actions as well as any plaintiffs in the Actions who are still intending to seek EB-5 status.
Further, due to our disqualification from representing GCRC Cupertino Fund LP in the
Actions, we are not advising the GCRC Cupertino Fund LP or its limited partners now as to EB-
5 Program issues.
As you are both aware the plaintiffs in the Actions through their respective attorneys are
secking to have the two Actions consolidated. The plaintiffs’ attomeys have circulated a form of
proposed Stipulation To Consolidate Cases which GCRC and Ms. Liou will not oppose so long
as it incorporates the terms of the existing court order for the Long Teng Gao action confirming
the same terms of the appointment of Mr. Sterling as Receiver for GCRC Cupertino Fund LP and
the selection of Mr. Scott’s firm to serve as counsel for GCRC Cupertino Fund LP in the two yet
to be consolidated Actions.
We will cooperate with the Recciver and Mr. Scott’s firm as independent counsel for
GCRC Cupertino Fund LP within the bounds and limitation of our representation. We feel
compelled to make you aware of these facts since any action taken by the plaintiffs in the
Actions to dissolve GCRC Cupertino Fund LP may disqualify any of the limited partners from
obtaining EB-5 Program status, and/or maintaining the priority dates of their Amended 1-526
Petitions.
BN 39740157¥4Buchalter
Gregory Sterling
Stephen A. Scott, Esq.
March 10, 2020
Page 4
We also do not know whether any other matters that arise in connection with the pending
Actions would prejudice the rights and interests of any of the limited partners of GCRC
Cupertino Fund LP and we leave those issues for you to consider and deal with.
Very truly yours,
BUCHALTER
A Profesgiopal C
MLW:lea
cc: Julie Rogers, Esq.-via email only
Robert Lu, Esq.-via email only
BN 39740157v4EXHIBIT CFrom: Bales, Peter
To: Robert Lu; Stephen A, Scott; "Julie Rogers"
Ce: Jessica E. Scott; Matthew Sava; Wachtell, Michael L.; gsterling@receiversinc.com
Subject: RE: Cupertino Consolidation Stipulation
Date: Monday, April 6, 2020 2:04:34 PM
Attachments: Proposed Stip to Consolidate Cases (FINAL).pdf
| thought you were since you are counsel for Plaintiffs in the lead case and circulated the latest
proposed stipulation. But since you are not willing to do so, | will go ahead and do so. See
attached.
Thanks, Peter
Buchalter
Peter Bales
Senior Counsel
T (415) 227-