Preview
10
it
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
William L, Buus (SBN 180059)
SCHIFFER & BUUS, APC
959 South Coast Drive, Suite 385
Costa Mesa, CA 92626
Telephone: (949) 825-6140
Facsimile: (949) 825-6141
Email: wbuus@schifferbuus.com
Attorneys for Defendant OLIVIA NGUYEN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
THUY PHAM, an individual, ) CASE NO: 17-CV-311664
)
Plaintiff, ) DEFENDANT OLIVIA NGUYEN’S REPLY
) BRIEF IN SUPPORT OF SPECIAL MOTION
ve ) TO STRIKE
)
AN NGUYEN, an individual; OLIVIA ) DATE: October 1, 2019
NGUYEN; DOES ONE through THIRTY ) TIME: 9:00 a.m.
inclusive, ) DEPT: 19
)
Defendants. ) Complaint Filed: June 12, 2017
) Trial Date: None Set Yet
I
INTRODUCTION
In her opposition brief, Plaintiff THUY PHAM (hereinafter “Pham”) appears to argue
that Defendant OLIVIA NGUYEN (hereinafter “Olivia Nguyen”) is liable merely by entering
into the stipulation and order that effectively transferred Defendant AN NGUYEN’s (hereinafter
“An Nguyen”) interest in the Fawnskin Property in exchange for Olivia Nguyen’s interest in
certain high-end, custom-made furniture. This guilty-by-association argument, however, is
insufficient to hold Olivia Nguyen in this action. This is particularly problematic for Pham since
she has presented no evidence whatsoever of critical elements of her claims. Pham’s First
Amended Complaint should be stricken for the following reasons:
e The gravamen of the First Amended Complaint expressly involves protected activity
1
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(i.e., Olivia Nguyen’s execution and submission of the stipulation and proposed order
amending the Olivia/An Dissolution judgment to grant the entire ownership interest
of the Fawnskin Property to Olivia Nguyen), satisfying the first prong of the anti-
SLAPP analysis and invoking the Litigation Privilege;
e Pham cannot collaterally attack the order amending the Olivia/An Dissolution
judgment because it is not void on its face;
e Pham has presented no evidence whatsoever that Olivia Nguyen was identified in the
order of April 25, 2014, either by name or by class of which she was a member; that
Olivia Nguyen had actual notice of that order at the time she engaged in the alleged
activity; or that Pham’s second and third causes of action are not time-barred;
e Pham has presented no evidence whatsoever that the furniture and the Fawnskin
Property did not have reasonably equivalent values at the time they were exchanged,
and has presented no evidence that Olivia Nguyen had actual knowledge of An
Nguyen’s fraudulent intent at the time she engaged in the alleged activity; and,
e Pham has presented no evidence that Olivia Nguyen currently possesses any property
in which An Nguyen has an ownership interest.
Because the anti-SLAPP statute applies given the gravamen of Pham’s First Amended
Complaint, and because Pham has failed to present evidence as to critical elements of her claims,
the Court should grant Olivia Nguyen’s anti-SLAPP motion and award her attorney’s fees.
I.
ARGUMENT
A. THE GRAVAMEN OF THE COMPLAINT EXPRESSLY INVOLVES
PROTECTED ACTIVITY (i.e., OLIVIA NGUYEN’S EXECUTION AND
SUBMISSION OF THE STIPULATION TO AMEND THE JUDGMENT)
AND, THEREFORE, THE FIRST PRONG OF THE ANTI-SLAPP
ANALYSIS HAS BEEN SATISFIED.
With respect to the transfer of the Fawnskin Property, Pham attempts to argue that her
causes of action are based solely upon the interspousal transfer deed signed by An Nguyen, and
not the stipulated amended judgment entered in the Olivia/An Dissolution. Two problems exist
with that argument.
2
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
u
12
13
14
15
16
7
18
19
20
21
22
23
“24
25
26
27
28
First, the First Amended Complaint itself alleges that “An [Nguyen] conspired with
Olivia [Nguyen] to enter into an agreement to fraudulently transfer % of his interest in [the]
Fawnskin Home in exchange for Olivia[ Nguyen]’s release of her interest in personal properties
and furniture . . .” and that, pursuant to that agreement, An Nguyen subsequently transferred that
¥, interest to Olivia Nguyen. (First Amended Complaint, § 24.a., 30.a., 36.a., 43.a., 50 and 59
[emphasis supplied].) The “agreement” to which Pham refers is the stipulation and order of
April of 2014, amending the judgment entered in the Olivia/An Dissolution on July 18, 2007
(Exhibit B), Because the negotiation, execution, and submission of that stipulation and order
amending that judgment to grant the entire ownership of the Fawnskin Property to Olivia
Nguyen and the subsequent recordation of the deed were done in connection with Olivia
Nguyen’s protected petitioning activity, and because Pham’s claims are expressly based upon
that activity, the first prong of the anti-SLAPP analysis is satisfied.
The second problem with Pham’s argument is her failure to recognize the essential role
the amended judgment played in connection with the transfer of the Fawnskin Property. One
must first understand the nature of a judgment of dissolution. A dissolution proceeding is one
“in rem.” (See In re Marriage of Ziernenberg (1992) 11 Cal.App.4" 1436, 1444.) Moreover,
the division of community property is not effective until ordered by the court. (See Garrett v.
Garrett (1968) 258 Cal.App.2d 407, 416-17.) Hence, once a court enters such an “in rem”
judgment vesting the ownership interest of real property to one party, the judgment itself (if in
proper form) can be recorded, although commentators have noted the desirability of recording an
interspousal grant deed instead. (Cal. Practice Guide — Family Law, Dismissals, Statements of
Decision and Judgments, § 15:266 (1999).)
Because the amended judgment entered in the Olivia/An Dissolution was both required
by law and, once entered, conclusive as to the ownership of the Fawnskin Property', nothing
l An “in rem” judgment is conclusive as to the things adjudicated. (See Ayako v.
Zellerbach Paper Co. (1938) 25 Cal.App.2d 309, 320; see also Gibson v. Westoby (1953) 115
Cal.App.2d 273, 276.)
3
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
i
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
more was needed to transfer that property. The order specifically provided that the Fawnskin
Property “is awarded to [Olivia Nguyen] as her sole and separate property,” and that An Nguyen
“shall have no further community or separate interest in that property.” (Exhibit B, {| 1.) It also
provided that An Nguyen “shall, concurrent with the signing of this Stipulation, execute a [sic]
Interspousal Transfer Deed transferring his interest in the property to Petitioner.” (Ibid. { 2.)
Also, the interspousal grant deed itself recognized that it was “[a] transfer to a spouse or former
spouse in connection with a property settlement agreement or decree of dissolution of a marriage
or legal separation...” Hence, one cannot extricate the stipulated amended judgment from the
interspousal transfer deed. They are both inextricably interwoven.
Because Pham’s action is expressly based upon statements and acts made in connection
with an exercise of petition rights (Cal. Code Civ. Proc. § 425.16(b), (e)(2)), the first prong of
the anti-SLAPP analysis is satisfied, and Pham was required to present evidentiary support for
each of her claims, As will be discussed below, she has failed to do that.”
B. PLAINTIFF DID NOT SUBMIT EVIDENCE TO SUPPORT CRITICAL
ELEMENTS OF HER CLAIMS.
Pham has failed to present evidence to support critical elements of her claims. Instead,
she has presented a number of exhibits without analyzing how any of them support her claims
against Olivia Nguyen. The burden is on plaintiff to produce evidence that would be admissible
at trial. (Chavez v. Mendoza (2001) 94 Cal.App.4" 1083, 1087.) A plaintiff does not meet that
burden when it fails to recite the required elements of any cause of action, fails to analyze
declarations and exhibits, and fails to tie the evidence to any element of any cause of action.
2 Pham also claims that this motion is improper because Olivia Nguyen is accused of
illegal activity (i.c., violating the court orders) and, therefore, that activity is not protected
activity under the anti-SLAPP statute, citing Flatley v. Mauro (2006) 39 Cal.4" 299, 320. That
is not a correct statement of the law. The activity is not protected only if the defendant concedes
or the evidence conclusively establishes that the activity was illegal as a matter of law. (Jd.)
That is not the case here. Olivia Nguyen has not conceded, and the evidence submitted by Pham
has not established (much less conclusively), that the execution and submission of the stipulation
to amend the judgment entered in the Olivia/An Dissolution was illegal as a matter of law.
4
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
1
12
13
4
15
16
17
18
19
20
21
22,
23
24
25
26
27
28
(MMM Holdings, Inc. v. Reich (2018) 21 Cal-App.5" 167, 185-86; see Newport Harbor Offices
& Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5" 28, 49-50.) Because
Pham has failed to present sufficient evidence of her claims against Olivia Nguyen, the motion
ought to be granted.
1. The Litigation Privilege Bars Pham’s Claims Against Olivia Nguyen.
As mentioned above, Pham’s claims against Olivia Nguyen expressly arise from the
stipulation and order entered in the Olivia/An Dissolution on May 5, 2014, in which the entire
ownership interest of the Fawnskin Property was granted to Olivia Nguyen. Such activity is
privileged pursuant to California Civil Code section 47(b). Pham argues that section 47(b) does
not bar her fraudulent transfer claims, citing Chen v. Brenjian (2019) 33 Cal.App.5" 811. That
case, however, is distinguishable since it involved the noncommunicative act of levying on
property for purposes of executing on a judgment. (/d. at 821.) That is not the case here.
The complaint and stipulated judgment involved in the Chen case did not address
ownership to property. Instead, the stipulated judgment was an in personam judgment for money
that did not, by itself, vest ownership interest in any property in the plaintiff. Therefore, the levy
on property was the focus of that lawsuit, and not the sham complaint or stipulated judgment. It
is very much different in the present case. The stipulation and order submitted in the Olivia/An
Dissolution specifically vested ownership of the Fawnskin Property in Olivia Nguyen. Without
the resulting in rem order, Olivia Nguyen would not have that ownership interest.
The Chen court analyzed the gravamen (i.e., material part or essential nature) of the
plaintiff's claims and determined that it involved the execution of the judgment, and not the
previous filing of a sham complaint and stipulated money judgment. (/d. 820-821.) It
distinguished the California Supreme Court case of Rusheen v. Cohen (2006) 37 Cal.4" 1048,
which held that the gravamen of a lawsuit there involved the communicative act of obtaining a
judgment based on the use of allegedly fraudulent declarations of service and not the
noncommunicative act of executing on that judgment. (Rusheen, supra, 37 Cal.4" at 1062.)
To the extent the analysis of these two cases is pertinent to the present dispute, the
gravamen of Pham’s claims against Olivia Nguyen doubtlessly involves the communicative act
Ss
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
i
12
13
4
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of obtaining an amended judgment by executing and submitting to the court the stipulation and
proposed order to amend the Olivia/An Dissolution judgment to grant the entire ownership
interest of the Fawnskin Property to Olivia Nguyen. As already shown above, the complaint
filed in this action specifically alleges that Olivia Nguyen’s execution and submission of the
stipulation and proposed order amending the judgment forms the basis of Pham’s claims against
Olivia Nguyen. That stipulation and order specifically granted the Fawnskin Property to Olivia
Nguyen and it is, therefore, inextricably bound with the interspousal transfer deed that followed.
Therefore, Pham’s action is barred by the Litigation Privilege.
2. Pham Cannot Collaterally Attack the Amended Judgment Entered in
the Olivia/An Dissolution Because that Amended Judgment Is Not
Void On Its Face.
By her action, Pham is collaterally attacking the order amending the Olivia/An
Dissolution judgment. The burden of showing the invalidity of a judgment is upon the party
attacking that judgment. (St. Sava Mission Corp. v. Serbian Eastern Orthodox Diocese (1990)
223 Cal.App.3d 1354, 1364.) Also, a judgment that is valid on the face of the record is generally
not subject to collateral attack. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017)
3 Cal.App.5" 1318, 1328; Burrows v. Burrows (1935) 10 Cal.App.2d 749, 751.) In other words,
a judgment that is valid on the face of the record must be challenged by direct attack, such as a
motion in the original action, an appeal in the original action, or an independent equitable action
to vacate the judgment. (/d.; see Henry M. Lee Law Corp. v. Superior Court (2012) 204
Cal.App.4"" 1375, 1382; Villarruel v. Arreola (1977) 66 Cal.App.3d 309, 318; Harada v.
Fitzpatrick (1949) 33 Cal.App.2d 453, 459.)
Pham appears to dispute this proposition, citing Levine v. Smith (2006) 145 Cal.App.4"
1131, but that case involved the collateral attack of a judgment that was void on its face in that
the default judgment was entered without plaintiff giving statutory notice of the amount of
damages sought in the original action. (/d. at 1134-1138.) The amended judgment entered in the
Olivia/An Dissolution, however, is not void on its face and therefore cannot be attacked
collaterally as Pham is attempting to do here. Instead, she is limited to directly attack it.
Ml
6
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
i
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3. The Second and Third Causes of Action for Violation of Family Code
section 2040 and Violation of Court Orders Are Meritless Because
Olivia Nguyen Was Not Identified in the Order of April 25, 2014;
Because Olivia Nguyen Did Not Have Actual Notice of the Order; and
Because They Are Time Barred.
Although Pham frames her second and third causes of action as “violations of court
orders,” they are, at their core, claims for contempt. Pham argues that they are not claims for
contempt, but rather some unspecified equitable claims in which she alleges the violation of
court orders. She argues this without identifying what the specific equitable cause of action is.
Pham cannot escape the legal reality that, when one brings a claim that another violated a court
order, that claim cannot be anything other than one of contempt.
As previously mentioned, before one can be held in contempt of a court order, it must be
shown that (1) the order was valid, (2) the alleged contemnor had actual knowledge of the order,
(3) the alleged contemnor possessed the ability to comply with the order, and (4) the alleged
contemnor willfully disobeyed that order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774,
784.) In this case, however, Pham has not presented any evidence that the subject order was
directed to Olivia Nguyen or any class to which she belonged. In fact, she does not even
mention this requirement in her opposition brief. Also, Pham has not presented any evidence
that Olivia Nguyen had actual knowledge of the order, or that she willfully disobeyed it.
Pham argues that Olivia Nguyen had constructive and actual knowledge of the lis
pendens filed and recorded in connection with the Pham/An Dissolution, and that Olivia Nguyen
received letters enclosing the order from Pham’s attorney months after the stipulation and
proposed order was submitted in the Olivia/An Dissolution. None of this amounts to Olivia
Nguyen’s actual knowledge of the court order at the time of the alleged conduct forming the
basis of Pham’s claims; that is, the execution and submission of the stipulation and proposed
order amending the Olivia/An Dissolution judgment. As a result, Pham has not presented any
evidence as to this critical element of her claims.
Finally, it appears Plaintiff's claims for contempt are also untimely. A contempt action to
enforce an order (other than a support order) made under the Family Code must be brought
within two years “from the time that the alleged contempt occurred.” (Cal. Code Civ. Proc. §
7
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1218.5(b).) This action was filed over three years after the alleged transfer was made and,
therefore, Plaintiff's claims are untimely. Plaintiff has not submitted any facts or evidence
whatsoever to dispute this.’
4. Pham’s Fourth and Fifth Causes of Action for Fraudulent Transfer
Are Meritless Because Pham Has Not Shown That The Property
Exchanged Was Not Of Substantially Equivalent Value and Has Not
Shown that Olivia Nguyen Acted in Bad Faith.
The Fourth and Fifth Causes of Action relating to Olivia Nguyen’s alleged involvement
in a fraudulent transfer are likewise without evidentiary support. The basis for a Uniform
Voidable Transactions Act set-aside is that the property transfer was (1) made with the actual
intent to hinder, delay, or defraud a creditor (sometimes called an “actual fraudulent transfer”) or
(2) without receiving reasonably equivalent value and while the debtor was insolvent or causes
the debtor to become insolvent (sometimes called a “constructive fraudulent transfer”), (See Cal.
Civ. Code §§ 3439.04(a)(1), 3439.05(a).) Pham has not presented any evidence as to these
elements required for her Fourth and Fifth Causes of Action. The evidence she has presented has
not shown that the transfer was made with the actual intent to hinder, delay, or defraud Pham,
and has not shown that the transfer was made without reasonably equivalent value being given.
More importantly, Olivia Nguyen has presented sufficient evidence that she acted in good
faith, whereas Pham has presented no evidence to the contrary. In order to demonstrate a
probably of prevailing on the merits, Pham must also produce admissible evidence sufficient to
overcome the defense of “good faith” that Olivia Nguyen has asserted. (Flatley v. Mauro (2006)
39 Cal.4"" 299,323.) Pham has failed to do that.
As to that defense, Pham has no claim for fraudulent transfer if Olivia Nguyen took the
property from An Nguyen in good faith and for a reasonably equivalent value. (Cal. Civ. Code §
3439,08(a).) Good faith means the defendant acted without actual fraudulent intent and that she
did not collude with An Nguyen or otherwise actively participate in any fraudulent scheme.
3 Pham’s alleged damages are also questionable given the filing and recording of a lis
pendens as against the Fawnskin Property. (See Request for Judicial Notice, Exhibit “E.”) This
lien has not yet been released.
8
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
11
12
13
14
15
16
17
18
19
20
21
22,
23
24
25
26
27
28.
(Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4" 1286, 1299.) Olivia Nguyen has
presented sufficient evidence showing that she entered into the transaction involving the
Fawnskin Property in good faith, whereas Pham has presented no evidence to the contrary. It is
important to note that, in order to defeat a defendant’s claim of good faith, the plaintiff must
show that defendant had actual knowledge and not merely constructive knowledge that the
transferor had a fraudulent intent. (Nautilus, Inc. v. Yang (2017) 11 Cal.App.5" 33, 46; Lewis v.
Superior Court (1994) 30 Cal.App.4 1850, 1859.)* Pham has not shown, however, that Olivia
Nguyen had actual knowledge of any fraudulent intent on the part of An Nguyen.°
Pham takes exception to those paragraphs of Olivia Nguyen’s declaration in which she
makes statements concerning the furniture that she transferred to An Nguyen in exchange for An
Nguyen’s interest in the Fawnskin Property. This testimony was intended to support Olivia
Nguyen’s claim that she acted in good faith and, therefore, it is certainly relevant. She claims
she believed the transaction was fair because the furniture was high-end and custom made,
costing An and Olivia Nguyen over $3.1 million to acquire in about 2002. She attached a listing
of the property that she declares to be a true and accurate listing of that furniture. By doing so,
she adopted, by way of her declaration, the contents of the writing as being a true and correct
listing of the furniture. She did not have to prepare it in order for her to declare that. In fact, she
could have simply listed the same furniture in her declaration, stating it to be an accurate listing
of the furniture. Therefore, her testimony is relevant as to Olivia Nguyen’s good faith.
Pham has the burden of proving that the values of the furniture and the Fawnskin
Property were not reasonably equivalent, but Pham has failed to meet that burden. Also, in order
to defeat Olivia Nguyen’s claim that she acted in good faith, Pham must also show that Olivia
Nguyen had actual knowledge of An Nguyen’s fraudulent intent, but Pham has failed to meet
4 These cases specifically reject the argument Pham makes in her opposition brief that
constructive notice of one’s fraudulent intent is sufficient.
5 Pham argues that Olivia Nguyen was an “insider” because she was An Nguyen’s former
spouse, former business partner, and joint owner of the Fawnskin Property. Pham fails to
explain, however, how any of those things makes Olivia Nguyen an “insider,” as that term is
used in the Uniform Voidable Transactions Act.
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
i
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
that burden as well. Therefore, Pham’s claims for fraudulent transfer should be stricken.
5. The Conspiracy and Aiding and Abetting Claims Are Without Merit
Because the Other Claims Upon Which They are Based Are Also
Meritless.
The Sixth and Seventh Causes of Action for Conspiracy and Aiding and Abetting are also
without merit because they rely upon the other meritless claims alleging violations of court
orders and fraudulent transfers.
6. Pham’s Claim for Creditor’s Suit Is Meritless Because Olivia Nguyen
Does not Possess Any Real or Personal Property in which An Nguyen
Has an Ownership Interest.
As revealed in Pham’s opposition brief, the only claim Pham makes with respect to this
cause of action is that “a lien could attach” to the last payment Olivia Nguyen made to An
Nguyen for the purpose of buying out his interest in the corporation. He cites no authority for
this because there is no authority for this. Also, this specific fact has not been pled in Pham’s
complaint. Instead, Pham’s complaint listed six categories of property allegedly owned by An
Nguyen that was allegedly in Olivia Nguyen’s possession. Pham, however, has failed to present
any evidence that her claim for Creditor’s Suit is valid as to those six categories of property.
1 Pham’s Claim for Constructive Trust Is Meritless Because She
Admits It Is Not a Legally-Cognizable Cause of Action.
Pham admits that this claim is improper under California law. (Pham’s Opposition to
Demurrer, p. 13.)
Ti.
CONCLUSION
Based upon the foregoing, Olivia Nguyen respectfully requests the Court to grant this
motion, strike Pham’s claims asserted in the First Amended Complaint against her and award her
attorney’s fees incurred in defending against this action.
Dated: September 24, 2019 SCHIFFER & BUUS, ARC
By: William 1. ‘Buus
Attorneys for Defendant OLIVIA NGUYEN
10
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PROOF OF SERVICE
Tam employed in the County of Orange, State of California. I am over the age of
eighteen (18) years and am not a party to the within action. My business address is that of 959
South Coast Drive, Suite 385, Costa Mesa, California 92626.
On September 24, 2019, at SCHIFFER & BUUS, APC, 959 South Coast Drive, Suite
385, Costa Mesa, California 92626, following ordinary business practices, I served a true and
correct copy of the foregoing document entitled DEFENDANT OLIVIA NGUYEN’S REPLY
BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE; on interested parties in this
action by transmitting a true and correct copy of each document thereof, as follows:
James T. Kim, Esq.
James Kim — Attorneys at Law
2570 North First Street, Suite 200
San Jose, California 95131
Tel.: (408)391-4143
Fax: (408)404-0740
BY OVERNIGHT COURIER: I caused the foregoing document(s) to be delivered to
an overnight courier service, Golden State Overnight (GSO) for delivery to the above address.
Executed on September 24, 2019, at Costa Mesa, California.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Q
Patricia L. Starr
11
DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF
SPECIAL MOTION TO STRIKE
Preview
10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 William L, Buus (SBN 180059) SCHIFFER & BUUS, APC 959 South Coast Drive, Suite 385 Costa Mesa, CA 92626 Telephone: (949) 825-6140 Facsimile: (949) 825-6141 Email: wbuus@schifferbuus.com Attorneys for Defendant OLIVIA NGUYEN SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA THUY PHAM, an individual, ) CASE NO: 17-CV-311664 ) Plaintiff, ) DEFENDANT OLIVIA NGUYEN’S REPLY ) BRIEF IN SUPPORT OF SPECIAL MOTION ve ) TO STRIKE ) AN NGUYEN, an individual; OLIVIA ) DATE: October 1, 2019 NGUYEN; DOES ONE through THIRTY ) TIME: 9:00 a.m. inclusive, ) DEPT: 19 ) Defendants. ) Complaint Filed: June 12, 2017 ) Trial Date: None Set Yet I INTRODUCTION In her opposition brief, Plaintiff THUY PHAM (hereinafter “Pham”) appears to argue that Defendant OLIVIA NGUYEN (hereinafter “Olivia Nguyen”) is liable merely by entering into the stipulation and order that effectively transferred Defendant AN NGUYEN’s (hereinafter “An Nguyen”) interest in the Fawnskin Property in exchange for Olivia Nguyen’s interest in certain high-end, custom-made furniture. This guilty-by-association argument, however, is insufficient to hold Olivia Nguyen in this action. This is particularly problematic for Pham since she has presented no evidence whatsoever of critical elements of her claims. Pham’s First Amended Complaint should be stricken for the following reasons: e The gravamen of the First Amended Complaint expressly involves protected activity 1 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (i.e., Olivia Nguyen’s execution and submission of the stipulation and proposed order amending the Olivia/An Dissolution judgment to grant the entire ownership interest of the Fawnskin Property to Olivia Nguyen), satisfying the first prong of the anti- SLAPP analysis and invoking the Litigation Privilege; e Pham cannot collaterally attack the order amending the Olivia/An Dissolution judgment because it is not void on its face; e Pham has presented no evidence whatsoever that Olivia Nguyen was identified in the order of April 25, 2014, either by name or by class of which she was a member; that Olivia Nguyen had actual notice of that order at the time she engaged in the alleged activity; or that Pham’s second and third causes of action are not time-barred; e Pham has presented no evidence whatsoever that the furniture and the Fawnskin Property did not have reasonably equivalent values at the time they were exchanged, and has presented no evidence that Olivia Nguyen had actual knowledge of An Nguyen’s fraudulent intent at the time she engaged in the alleged activity; and, e Pham has presented no evidence that Olivia Nguyen currently possesses any property in which An Nguyen has an ownership interest. Because the anti-SLAPP statute applies given the gravamen of Pham’s First Amended Complaint, and because Pham has failed to present evidence as to critical elements of her claims, the Court should grant Olivia Nguyen’s anti-SLAPP motion and award her attorney’s fees. I. ARGUMENT A. THE GRAVAMEN OF THE COMPLAINT EXPRESSLY INVOLVES PROTECTED ACTIVITY (i.e., OLIVIA NGUYEN’S EXECUTION AND SUBMISSION OF THE STIPULATION TO AMEND THE JUDGMENT) AND, THEREFORE, THE FIRST PRONG OF THE ANTI-SLAPP ANALYSIS HAS BEEN SATISFIED. With respect to the transfer of the Fawnskin Property, Pham attempts to argue that her causes of action are based solely upon the interspousal transfer deed signed by An Nguyen, and not the stipulated amended judgment entered in the Olivia/An Dissolution. Two problems exist with that argument. 2 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 u 12 13 14 15 16 7 18 19 20 21 22 23 “24 25 26 27 28 First, the First Amended Complaint itself alleges that “An [Nguyen] conspired with Olivia [Nguyen] to enter into an agreement to fraudulently transfer % of his interest in [the] Fawnskin Home in exchange for Olivia[ Nguyen]’s release of her interest in personal properties and furniture . . .” and that, pursuant to that agreement, An Nguyen subsequently transferred that ¥, interest to Olivia Nguyen. (First Amended Complaint, § 24.a., 30.a., 36.a., 43.a., 50 and 59 [emphasis supplied].) The “agreement” to which Pham refers is the stipulation and order of April of 2014, amending the judgment entered in the Olivia/An Dissolution on July 18, 2007 (Exhibit B), Because the negotiation, execution, and submission of that stipulation and order amending that judgment to grant the entire ownership of the Fawnskin Property to Olivia Nguyen and the subsequent recordation of the deed were done in connection with Olivia Nguyen’s protected petitioning activity, and because Pham’s claims are expressly based upon that activity, the first prong of the anti-SLAPP analysis is satisfied. The second problem with Pham’s argument is her failure to recognize the essential role the amended judgment played in connection with the transfer of the Fawnskin Property. One must first understand the nature of a judgment of dissolution. A dissolution proceeding is one “in rem.” (See In re Marriage of Ziernenberg (1992) 11 Cal.App.4" 1436, 1444.) Moreover, the division of community property is not effective until ordered by the court. (See Garrett v. Garrett (1968) 258 Cal.App.2d 407, 416-17.) Hence, once a court enters such an “in rem” judgment vesting the ownership interest of real property to one party, the judgment itself (if in proper form) can be recorded, although commentators have noted the desirability of recording an interspousal grant deed instead. (Cal. Practice Guide — Family Law, Dismissals, Statements of Decision and Judgments, § 15:266 (1999).) Because the amended judgment entered in the Olivia/An Dissolution was both required by law and, once entered, conclusive as to the ownership of the Fawnskin Property', nothing l An “in rem” judgment is conclusive as to the things adjudicated. (See Ayako v. Zellerbach Paper Co. (1938) 25 Cal.App.2d 309, 320; see also Gibson v. Westoby (1953) 115 Cal.App.2d 273, 276.) 3 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 more was needed to transfer that property. The order specifically provided that the Fawnskin Property “is awarded to [Olivia Nguyen] as her sole and separate property,” and that An Nguyen “shall have no further community or separate interest in that property.” (Exhibit B, {| 1.) It also provided that An Nguyen “shall, concurrent with the signing of this Stipulation, execute a [sic] Interspousal Transfer Deed transferring his interest in the property to Petitioner.” (Ibid. { 2.) Also, the interspousal grant deed itself recognized that it was “[a] transfer to a spouse or former spouse in connection with a property settlement agreement or decree of dissolution of a marriage or legal separation...” Hence, one cannot extricate the stipulated amended judgment from the interspousal transfer deed. They are both inextricably interwoven. Because Pham’s action is expressly based upon statements and acts made in connection with an exercise of petition rights (Cal. Code Civ. Proc. § 425.16(b), (e)(2)), the first prong of the anti-SLAPP analysis is satisfied, and Pham was required to present evidentiary support for each of her claims, As will be discussed below, she has failed to do that.” B. PLAINTIFF DID NOT SUBMIT EVIDENCE TO SUPPORT CRITICAL ELEMENTS OF HER CLAIMS. Pham has failed to present evidence to support critical elements of her claims. Instead, she has presented a number of exhibits without analyzing how any of them support her claims against Olivia Nguyen. The burden is on plaintiff to produce evidence that would be admissible at trial. (Chavez v. Mendoza (2001) 94 Cal.App.4" 1083, 1087.) A plaintiff does not meet that burden when it fails to recite the required elements of any cause of action, fails to analyze declarations and exhibits, and fails to tie the evidence to any element of any cause of action. 2 Pham also claims that this motion is improper because Olivia Nguyen is accused of illegal activity (i.c., violating the court orders) and, therefore, that activity is not protected activity under the anti-SLAPP statute, citing Flatley v. Mauro (2006) 39 Cal.4" 299, 320. That is not a correct statement of the law. The activity is not protected only if the defendant concedes or the evidence conclusively establishes that the activity was illegal as a matter of law. (Jd.) That is not the case here. Olivia Nguyen has not conceded, and the evidence submitted by Pham has not established (much less conclusively), that the execution and submission of the stipulation to amend the judgment entered in the Olivia/An Dissolution was illegal as a matter of law. 4 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 1 12 13 4 15 16 17 18 19 20 21 22, 23 24 25 26 27 28 (MMM Holdings, Inc. v. Reich (2018) 21 Cal-App.5" 167, 185-86; see Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5" 28, 49-50.) Because Pham has failed to present sufficient evidence of her claims against Olivia Nguyen, the motion ought to be granted. 1. The Litigation Privilege Bars Pham’s Claims Against Olivia Nguyen. As mentioned above, Pham’s claims against Olivia Nguyen expressly arise from the stipulation and order entered in the Olivia/An Dissolution on May 5, 2014, in which the entire ownership interest of the Fawnskin Property was granted to Olivia Nguyen. Such activity is privileged pursuant to California Civil Code section 47(b). Pham argues that section 47(b) does not bar her fraudulent transfer claims, citing Chen v. Brenjian (2019) 33 Cal.App.5" 811. That case, however, is distinguishable since it involved the noncommunicative act of levying on property for purposes of executing on a judgment. (/d. at 821.) That is not the case here. The complaint and stipulated judgment involved in the Chen case did not address ownership to property. Instead, the stipulated judgment was an in personam judgment for money that did not, by itself, vest ownership interest in any property in the plaintiff. Therefore, the levy on property was the focus of that lawsuit, and not the sham complaint or stipulated judgment. It is very much different in the present case. The stipulation and order submitted in the Olivia/An Dissolution specifically vested ownership of the Fawnskin Property in Olivia Nguyen. Without the resulting in rem order, Olivia Nguyen would not have that ownership interest. The Chen court analyzed the gravamen (i.e., material part or essential nature) of the plaintiff's claims and determined that it involved the execution of the judgment, and not the previous filing of a sham complaint and stipulated money judgment. (/d. 820-821.) It distinguished the California Supreme Court case of Rusheen v. Cohen (2006) 37 Cal.4" 1048, which held that the gravamen of a lawsuit there involved the communicative act of obtaining a judgment based on the use of allegedly fraudulent declarations of service and not the noncommunicative act of executing on that judgment. (Rusheen, supra, 37 Cal.4" at 1062.) To the extent the analysis of these two cases is pertinent to the present dispute, the gravamen of Pham’s claims against Olivia Nguyen doubtlessly involves the communicative act Ss DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 i 12 13 4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of obtaining an amended judgment by executing and submitting to the court the stipulation and proposed order to amend the Olivia/An Dissolution judgment to grant the entire ownership interest of the Fawnskin Property to Olivia Nguyen. As already shown above, the complaint filed in this action specifically alleges that Olivia Nguyen’s execution and submission of the stipulation and proposed order amending the judgment forms the basis of Pham’s claims against Olivia Nguyen. That stipulation and order specifically granted the Fawnskin Property to Olivia Nguyen and it is, therefore, inextricably bound with the interspousal transfer deed that followed. Therefore, Pham’s action is barred by the Litigation Privilege. 2. Pham Cannot Collaterally Attack the Amended Judgment Entered in the Olivia/An Dissolution Because that Amended Judgment Is Not Void On Its Face. By her action, Pham is collaterally attacking the order amending the Olivia/An Dissolution judgment. The burden of showing the invalidity of a judgment is upon the party attacking that judgment. (St. Sava Mission Corp. v. Serbian Eastern Orthodox Diocese (1990) 223 Cal.App.3d 1354, 1364.) Also, a judgment that is valid on the face of the record is generally not subject to collateral attack. (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 3 Cal.App.5" 1318, 1328; Burrows v. Burrows (1935) 10 Cal.App.2d 749, 751.) In other words, a judgment that is valid on the face of the record must be challenged by direct attack, such as a motion in the original action, an appeal in the original action, or an independent equitable action to vacate the judgment. (/d.; see Henry M. Lee Law Corp. v. Superior Court (2012) 204 Cal.App.4"" 1375, 1382; Villarruel v. Arreola (1977) 66 Cal.App.3d 309, 318; Harada v. Fitzpatrick (1949) 33 Cal.App.2d 453, 459.) Pham appears to dispute this proposition, citing Levine v. Smith (2006) 145 Cal.App.4" 1131, but that case involved the collateral attack of a judgment that was void on its face in that the default judgment was entered without plaintiff giving statutory notice of the amount of damages sought in the original action. (/d. at 1134-1138.) The amended judgment entered in the Olivia/An Dissolution, however, is not void on its face and therefore cannot be attacked collaterally as Pham is attempting to do here. Instead, she is limited to directly attack it. Ml 6 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. The Second and Third Causes of Action for Violation of Family Code section 2040 and Violation of Court Orders Are Meritless Because Olivia Nguyen Was Not Identified in the Order of April 25, 2014; Because Olivia Nguyen Did Not Have Actual Notice of the Order; and Because They Are Time Barred. Although Pham frames her second and third causes of action as “violations of court orders,” they are, at their core, claims for contempt. Pham argues that they are not claims for contempt, but rather some unspecified equitable claims in which she alleges the violation of court orders. She argues this without identifying what the specific equitable cause of action is. Pham cannot escape the legal reality that, when one brings a claim that another violated a court order, that claim cannot be anything other than one of contempt. As previously mentioned, before one can be held in contempt of a court order, it must be shown that (1) the order was valid, (2) the alleged contemnor had actual knowledge of the order, (3) the alleged contemnor possessed the ability to comply with the order, and (4) the alleged contemnor willfully disobeyed that order. (Conn v. Superior Court (1987) 196 Cal.App.3d 774, 784.) In this case, however, Pham has not presented any evidence that the subject order was directed to Olivia Nguyen or any class to which she belonged. In fact, she does not even mention this requirement in her opposition brief. Also, Pham has not presented any evidence that Olivia Nguyen had actual knowledge of the order, or that she willfully disobeyed it. Pham argues that Olivia Nguyen had constructive and actual knowledge of the lis pendens filed and recorded in connection with the Pham/An Dissolution, and that Olivia Nguyen received letters enclosing the order from Pham’s attorney months after the stipulation and proposed order was submitted in the Olivia/An Dissolution. None of this amounts to Olivia Nguyen’s actual knowledge of the court order at the time of the alleged conduct forming the basis of Pham’s claims; that is, the execution and submission of the stipulation and proposed order amending the Olivia/An Dissolution judgment. As a result, Pham has not presented any evidence as to this critical element of her claims. Finally, it appears Plaintiff's claims for contempt are also untimely. A contempt action to enforce an order (other than a support order) made under the Family Code must be brought within two years “from the time that the alleged contempt occurred.” (Cal. Code Civ. Proc. § 7 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1218.5(b).) This action was filed over three years after the alleged transfer was made and, therefore, Plaintiff's claims are untimely. Plaintiff has not submitted any facts or evidence whatsoever to dispute this.’ 4. Pham’s Fourth and Fifth Causes of Action for Fraudulent Transfer Are Meritless Because Pham Has Not Shown That The Property Exchanged Was Not Of Substantially Equivalent Value and Has Not Shown that Olivia Nguyen Acted in Bad Faith. The Fourth and Fifth Causes of Action relating to Olivia Nguyen’s alleged involvement in a fraudulent transfer are likewise without evidentiary support. The basis for a Uniform Voidable Transactions Act set-aside is that the property transfer was (1) made with the actual intent to hinder, delay, or defraud a creditor (sometimes called an “actual fraudulent transfer”) or (2) without receiving reasonably equivalent value and while the debtor was insolvent or causes the debtor to become insolvent (sometimes called a “constructive fraudulent transfer”), (See Cal. Civ. Code §§ 3439.04(a)(1), 3439.05(a).) Pham has not presented any evidence as to these elements required for her Fourth and Fifth Causes of Action. The evidence she has presented has not shown that the transfer was made with the actual intent to hinder, delay, or defraud Pham, and has not shown that the transfer was made without reasonably equivalent value being given. More importantly, Olivia Nguyen has presented sufficient evidence that she acted in good faith, whereas Pham has presented no evidence to the contrary. In order to demonstrate a probably of prevailing on the merits, Pham must also produce admissible evidence sufficient to overcome the defense of “good faith” that Olivia Nguyen has asserted. (Flatley v. Mauro (2006) 39 Cal.4"" 299,323.) Pham has failed to do that. As to that defense, Pham has no claim for fraudulent transfer if Olivia Nguyen took the property from An Nguyen in good faith and for a reasonably equivalent value. (Cal. Civ. Code § 3439,08(a).) Good faith means the defendant acted without actual fraudulent intent and that she did not collude with An Nguyen or otherwise actively participate in any fraudulent scheme. 3 Pham’s alleged damages are also questionable given the filing and recording of a lis pendens as against the Fawnskin Property. (See Request for Judicial Notice, Exhibit “E.”) This lien has not yet been released. 8 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 11 12 13 14 15 16 17 18 19 20 21 22, 23 24 25 26 27 28. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4" 1286, 1299.) Olivia Nguyen has presented sufficient evidence showing that she entered into the transaction involving the Fawnskin Property in good faith, whereas Pham has presented no evidence to the contrary. It is important to note that, in order to defeat a defendant’s claim of good faith, the plaintiff must show that defendant had actual knowledge and not merely constructive knowledge that the transferor had a fraudulent intent. (Nautilus, Inc. v. Yang (2017) 11 Cal.App.5" 33, 46; Lewis v. Superior Court (1994) 30 Cal.App.4 1850, 1859.)* Pham has not shown, however, that Olivia Nguyen had actual knowledge of any fraudulent intent on the part of An Nguyen.° Pham takes exception to those paragraphs of Olivia Nguyen’s declaration in which she makes statements concerning the furniture that she transferred to An Nguyen in exchange for An Nguyen’s interest in the Fawnskin Property. This testimony was intended to support Olivia Nguyen’s claim that she acted in good faith and, therefore, it is certainly relevant. She claims she believed the transaction was fair because the furniture was high-end and custom made, costing An and Olivia Nguyen over $3.1 million to acquire in about 2002. She attached a listing of the property that she declares to be a true and accurate listing of that furniture. By doing so, she adopted, by way of her declaration, the contents of the writing as being a true and correct listing of the furniture. She did not have to prepare it in order for her to declare that. In fact, she could have simply listed the same furniture in her declaration, stating it to be an accurate listing of the furniture. Therefore, her testimony is relevant as to Olivia Nguyen’s good faith. Pham has the burden of proving that the values of the furniture and the Fawnskin Property were not reasonably equivalent, but Pham has failed to meet that burden. Also, in order to defeat Olivia Nguyen’s claim that she acted in good faith, Pham must also show that Olivia Nguyen had actual knowledge of An Nguyen’s fraudulent intent, but Pham has failed to meet 4 These cases specifically reject the argument Pham makes in her opposition brief that constructive notice of one’s fraudulent intent is sufficient. 5 Pham argues that Olivia Nguyen was an “insider” because she was An Nguyen’s former spouse, former business partner, and joint owner of the Fawnskin Property. Pham fails to explain, however, how any of those things makes Olivia Nguyen an “insider,” as that term is used in the Uniform Voidable Transactions Act. DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that burden as well. Therefore, Pham’s claims for fraudulent transfer should be stricken. 5. The Conspiracy and Aiding and Abetting Claims Are Without Merit Because the Other Claims Upon Which They are Based Are Also Meritless. The Sixth and Seventh Causes of Action for Conspiracy and Aiding and Abetting are also without merit because they rely upon the other meritless claims alleging violations of court orders and fraudulent transfers. 6. Pham’s Claim for Creditor’s Suit Is Meritless Because Olivia Nguyen Does not Possess Any Real or Personal Property in which An Nguyen Has an Ownership Interest. As revealed in Pham’s opposition brief, the only claim Pham makes with respect to this cause of action is that “a lien could attach” to the last payment Olivia Nguyen made to An Nguyen for the purpose of buying out his interest in the corporation. He cites no authority for this because there is no authority for this. Also, this specific fact has not been pled in Pham’s complaint. Instead, Pham’s complaint listed six categories of property allegedly owned by An Nguyen that was allegedly in Olivia Nguyen’s possession. Pham, however, has failed to present any evidence that her claim for Creditor’s Suit is valid as to those six categories of property. 1 Pham’s Claim for Constructive Trust Is Meritless Because She Admits It Is Not a Legally-Cognizable Cause of Action. Pham admits that this claim is improper under California law. (Pham’s Opposition to Demurrer, p. 13.) Ti. CONCLUSION Based upon the foregoing, Olivia Nguyen respectfully requests the Court to grant this motion, strike Pham’s claims asserted in the First Amended Complaint against her and award her attorney’s fees incurred in defending against this action. Dated: September 24, 2019 SCHIFFER & BUUS, ARC By: William 1. ‘Buus Attorneys for Defendant OLIVIA NGUYEN 10 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE Tam employed in the County of Orange, State of California. I am over the age of eighteen (18) years and am not a party to the within action. My business address is that of 959 South Coast Drive, Suite 385, Costa Mesa, California 92626. On September 24, 2019, at SCHIFFER & BUUS, APC, 959 South Coast Drive, Suite 385, Costa Mesa, California 92626, following ordinary business practices, I served a true and correct copy of the foregoing document entitled DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE; on interested parties in this action by transmitting a true and correct copy of each document thereof, as follows: James T. Kim, Esq. James Kim — Attorneys at Law 2570 North First Street, Suite 200 San Jose, California 95131 Tel.: (408)391-4143 Fax: (408)404-0740 BY OVERNIGHT COURIER: I caused the foregoing document(s) to be delivered to an overnight courier service, Golden State Overnight (GSO) for delivery to the above address. Executed on September 24, 2019, at Costa Mesa, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Q Patricia L. Starr 11 DEFENDANT OLIVIA NGUYEN’S REPLY BRIEF IN SUPPORT OF SPECIAL MOTION TO STRIKE