Motion in Limine Evidentiary in Bic Pho et al vs Eastwest Trading Co, LLC et al| Trellis.Law

On September 26, 2016 a Motion,Ex Parte was filed involving a dispute between Bic D. Pho, Idragon, Llc, and Eastwest Trading Co, Llc, Jiang "Ben" Kuang, Pro Legal Services Corporation, Properties & Beyond Corporation, Properties & Beyond Partnership, Vy Le Nguyen, for Other Contract Unlimited (37) in the District Court of Santa Clara County.

Preview
William C. Dresser, 104375
Law Offices of William C. Dresser
4 North Second Street, Suite 1230
San J ose, California 95113
Tel: 408/279 7529
Fax: 408/298 3306

Attorneys for Plaintiffs
Bic D. Pho and iDragon, LLC

IN THE SUPERIOR COURT O E STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

Bic D. Pho and iDragon, LLC, Action No.: 16CV300343

Plaintiff, Plaintiffs Bic Pho and iDragon Ss
Motion for Sanctions Re Documents Not
Identified or Produced Despite Order
vs. Compelling Production
EastWest Trading Co. LLC, Properties &
Beyond Partnership, Vy Le Nguyen, J iang Date: May1 , 2019
“Ben” Kuang, Pro Legal Services Dept 16
Hon. J udge William J. Monahan
Corporation, Properties & Beyond
Corporation, and Does 1 through 50,

Defendant

RELIEF REQUESTED
Plaintiffs Bic D. Pho and iDragon, LLC request issuance of terminating sanctions

based on the evidence obtained from trial pleadings submitted by defendant) iang

Kuang.

The relief requested is to:

strike the Answer of J iang Kuang to all causes of action. (C.C.P. § 2023.030,

subd. (d) (1) (“striking out the pleadings or parts of the pleadings of any party engaging

in the misuse of the discovery process”).), or alternatively to those causes of action
which the Court determines to be affected by the misuse of the discovery process. The

causes of action pled in the September 26, 2016 Complaint against J iang "Ben" Kuang

are titled for Breach of Employment Contract, Termination of employment in violation of

public policy, Wages and Hours Violations, Bad Check and Accounting.

Il. STATEMENT OF FACTS
All defendants in this case were initially represented by the Parr Law Group.All

of the defendants in this case were then represented by Breck Milde. Defendants now

seek to create the illusion that only J iang Kuang is represented by and has

communications with Mr. Milde.

Defendants failed to comply with requests to produce. An Order was issued

compelling production. Ex. A.

J iang Kuang then appeared for deposition and did not produce any documents.

Ex. B.

is is significant because Defendants controlled the bank accounts, and

controlled the physical location of the operation of the partnership. They also cut off

controlled mails including that commencing when the defendants refused to pay

Bic Pho, they cut off e mail access for Bic Pho. Rather, Vy Nguyen and J iang Kuang

put stop pays on checks payable to Bic Pho while Bic Pho was in Vietnam, sent an e

mail to Bic Pho that he his employment was terminated, and then cut off Bic Pho’s

access to the e mail account with the address bic@ properties beyond.com Ex. C.

The deposition was continued to allow Mr. Kuang to produce documents. Mr.

Kuang appeared for deposition. He did not produce the records ordered to be

produced. Se Ex. D.

J iang Kuang did not produce any checks or deposit records for the Wells Fargo

account that he and defendantVy Nguyen closed, produced almost no escrow
documents for the many properties at issue herein including for escrows where he was

the record title owner and buyer or seller, and no e mails.Mr. Kuang in his deposition

stated about 300 times in response to questions | dontknow , or | dontrecall or

t remember. Plaintiffs trial exhibits 801 and 802 are a copy of the transcripts of the!

two half day sessions of the deposition of J iang Kuang

Instead, n that intervening half year, and in the two to three weeks before his

deposition, Mr. Kuang turned in and got rid of the business phones assigned to him,

while doing nothing to preserve texts or voice mail. Ex. E.

Defendant Kuang was served through counsel with a Notice in Lieu of Subpoena

to produce at this trial. All categories of production were responded to by objections,

with a statement
that no documents or things would be produced.

Defendant Kuang through csel now identif y in an Amended E xhibit list

dated for and se d the afternoon after the date initially set for commencement of trial

what is purported to be e mails persons who worked at or forthe sham entities used

as pass through accounts by he and Vy Nguyen. Thes ils were not previously

identified, referred to, or produced, despite court Order for their production.

SANCTIONS SHOULD BE ISSUED

“(W Jhere a violation is willful, preceded by a history of abuse, and the evidence

shows that less severe sanctions would not produce compliance with the discovery

rules, the trial court is justified in imposing the ultimate sanction.' [Citation.] Under this

standard, trial courts have properly imposed terminating sanctions when parties have

willfully disobeyed one or more discovery orders." (Los Defensores, Inc. v. Gomez

(2014) 223 Cal.App.4th 377, 390).

The Court should issue this Order also based onJ iang Kuang _spoliation of

evidence and intentional refusal to produce. (Cedars Sinai Medical Center v. Superior
Court (1998) 18 Cal.4th 1; Temple Community Hospital v. Superior Court (1999) 20

Cal.4th 464; Farmers Insurance Exchange v. Superior Court (2000) 79 Cal.App.4th

1400; Coprich v. Superior Court (2000) 80 Cal.App.4th 1081, 1083; The FORTUNA —

Krause, et al. Claimants (March 17, 1817) 15 U.S. 161 4 L Ed. 209 2 Wheat 161; Penn

v.Prestige Stations, Inc. (2000) 83 Cal.App.4th 336, 343; R.S. Creative, Inc. v. Creative

Cotton, Ltd. (1999) 75 Cal.App.4th 486)
It should be further noted that Jiang Kuang has refused to stipulate to the

authenticity of the bank records produced by Wells Fargo pursuant to subpoena, when
10 those records are of accounts for which Mr. Kuang opened, was signatory to, and had
il
the password to access online, yet he refused to produce those records. Ex. F and G
12
Jiang Kuang has also refused to stipulate to the authenticity of the records
13
produced by Fidelity National Title Company pursuant to subpoena for three of the
14
escrows that Mr. Kuang was buyer, seller and title record owner of records which he
15
tefused to produce at deposition. Ex. H
16
16
Defendant Kuang has by his May 13, 2019 Amended Exhibit List confirmed that
17
he has documents ordered to be produced, and intends to use them at trial

The within case contains the same facts that led the Court of Appeals in Doppes
19

20
v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 to find that not granting terminating

sanctions was an abuse of discretion. (Doppes v. Bentley Motors, Inc. (2009) 174

22 Cal.App.4th 967, 991)
23 IT IS RESPECTFULLY REQUESTED that the requested sayctions be issued

Wily
24
Dated: May 14, 2019
25
Wilidm’C. Dresser
26 Attorneys for Plaintiffs
Bic D. Pho and iDragon, LLC
27

28 Pho_EastWest\Trial\Briefs\MtnSanctions.514
Pho v EastWest Trading Co., LLC; Santa Clara action no 16CV300343
Plaintiffs Pho and iDragon LLC’s Motion for Sanctions
ENROBSED
LED
1 WL27 P 215
CLERK OF THE COU
Senon COURT OF th
soit OF SANTA CER,

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10

11
Bic Pho
‘ase No.: 20161CV300343
12 Plaintiff,
13
Vs
Order
14 Eastwest Trading Co. LLC et al
15
Defendants.
16

18 This matter came on for hearing on July 27, 2017 in the above-entitled Court, the
19
Honorable Maureen A. Folan, presiding. The Court posted its tentative ruling on July 26, 2017
20
and defense counsel contested the tentative ruling. Counsel for plaintiff, William Dresser and
21
counsel for defendants Breck Milde appeared and the Court heard argument thereon. The Court
22
modifies its tentative ruling to reduce the sanctions as follows:
23

27 Plaintiffs Motion to Compel Deposition of Jiang Ben Kuong as defendant and as CEO and
28
Manager of Eastwest Trading Company LLC and for Monetary Sanctions is UNOPPOSED and
GRANTED. Mr. Kuong shall sit for another session of deposition not to exceed 7 hours and

Case No20161CV300343
Order
1
shall produce documents requested in connection with the deposition notice categories 1-33
2 Mr. Koung shall pay monetary sanctions to plaintiffs counsel inthe amount of $500.

6
Dated 7 Z/ /
Ay VA.
Hon. faureen A. Folan
Judge/of the Superior Court

Case No20161CV300343
Order
DEPOSITION OF JIANG KUANG

papers you're aware of that you could look at

that would refresh your recollection as to

whether there were any deals?"

THE DEPONENT: You would need to be more

specific.

BY MR. DRESSER:

Q Okay. Did you produce any documents today for

the purposes of this deposition as requested by the

notice of taking deposition with production of

10 documents which -- the notice of which we've had marked

11 as Exhibi N. 1?

12 Here you are, sir. That's Exhibit No. i

13 So did you bring with you any documents

14 responsive to that notice?

15 A. No.

16 Q. Why not?

17 A. Because I'm not in the daily business deals

18 and I don't have access to this.

19 Q. What do you mean by you do not have access?

20 A. I don't have those documents.

21 Q. Where are the documents?

22 A. I don't know.

23 Q. Have you ever seen any documents that would be

24 responsive to any categories of this notice of taking

25 deposition?

TORREANO REPORTING AND VIDEO 27
www.torreano-depos.com (844) NOW-DEPO
today?

A No.

Q Did you ever have any e-mails with Kevin

Nguyen concerning any matter for EastWest Trading

Company, LLC?

A I'm sorry?

Q Did you ever have any e-mail communications

between you and Kevin Nguyen concerning EastWest

Trading Company, LLC?

10 A A communication between me and Kevin?

11 Q Yes, sir.

12 A Yes.

13 Q Do you have those with you here today?

14 A No.

15 Q Have you had any communications with Kevin

16 concerning any of the Monroe Street, Reed, Willow or

17 Summerview properties?

18 A I think so.

19 Q Okay. And do you still have those e-mails

20 saved either to your e-mail provider account or ona

21 computer?

22 A I should.

23 Q Okay. Is there any reason why you did not

24 bring them with you here today?

25 A Actually, these information, I think Kevin

TORREANO REPORTING AND VIDEO 49
www.torreano-depos.com (844) NOW-DEPO
272016 https sites google. com/a/prclegals com/control/staff7impl=%2F system %2Fapp%2Ftem| plates %2F print% 2 &show?r intDialog= 1&sortC
ol= 3189971023.

Staff
shew Ne

Name Company Position Mobile Email Extension

Sure peut Sor Sart
ian Harysits Properties and Bayend Broker AOS ELE TITS, inks an upsbbrebe te
et, ala PFD res:
bayood.cam
Andrea (Loan) by Piss Legal Adniin Ageiseant 208-380-988. andre pvafegals.cein
Bic Phe Properties and Beyond 08-91 AIT dice) artins-
bayand,ener AExHBBIT_LO_
5 Repolto Properties and Beyond Agent 408-887-1986, brepelodprogertns.
KvANG~
beyand.cam 8/6/20 FP 7623
Charlie Nguyen Pre erties antf Beyond gout ADE-GAS-£E90 charho@ pe
beyand.com
David Huynh Pro Legal Frone Desk 916-661-1404 david@prolegais.comt 101
Dewy Pro Lega! ‘Super IT Manager 339-5010 or rolegais.com 087
Fred Mayer Properties and Beyond 408.2021615, frecim nding@gmad.co
m
Imeida (Mal) Factora Properties and Beyond Agent 408-661-9247 imeida@propeties-
beyend.com
Kevin (yi Nguyen Pro Legal ck as $23.97 10 ‘w@prolegels.cam, 102
inguyen@exceierateca
pital.com
Linda (Linh) Le Properties and Beyond 408-866-0967 linh@tetinh.org
Marie Mendy Excelerate Capital Senior Loan Processor 650-468. awnendy@excelarate 108
pitalcem
Michae! Mendoza Properties and Beyond Real Estate Agent 405-639-8285 Mnichacl@prop ies:
beyond.com
Mike (Mink) Nguyen Pro Legal $16-940-3924 muketdiproiegals.com
Minh Trin Propatties and Beyond Office Manager 408-930-3010 ‘egal ts.com
minh@pret legal 400
Ngan Dao Pro Lagst Loan Officer 408-316-4358, ngan@pralegats.com
Paul Trueng operties and Beyond 406-465-2300 pauley ropemies-
beyond.cam

Sandy Lam Excelerate Capital Loan Processor 608-799-3877 Slam@eaceleratecapmtal 105
com,
Tammi ie Excalerate Capital 08. BERI77F tamy i@protegals.com 403
‘Trang Pham Pro Legat 51093-3259 accounting@orategals.:
om

Showing 20 items

https://sites .google.com/a/prolegals.com/contr ol/staff?tm pl=%2F system %2F app%2F templates %2F printh2F &showPrintDialog= 1&sortCol=318987 1023239195... 1/1

Where was he then?

You mean the meeting location?

Yes. Where is the physical location?

At the Sprint store.

Was this a planned visit?

Yes.

And this is a Sprint store located where?

On McKee.

Q Why did you plan on meeting at the Sprint

10 store?

11 A There was two phones under my name. So I want

12 to get rid of them and he knows some history to it.

13 Q And these phones that were in your name, what

14 phones were they?

15 A One is a Galaxy. I forget which one. And the

16 other one is an iPhone.

17 Q And were these phones in your name for a

18 business use?

19 A Yes.

20 Q And this is for what business use?

21 A I think it was for Pro Legal.

22 Q Prior to your getting rid of these phones did

23 you take any steps or actions to preserve the

24 information that's on those phones?

25 A It's never in my possession. So I don't have

TORREANO REPORTING AND VIDEO 133
www.torreano-depos.com (844) NOW-DEPO
any record of -- on the phone.

Q When you went to turn in these phones to the

Sprint store on McKee Road did you take any steps to

save any text messages that would be on the Galaxy?

A No.

Q Did you take any steps to preserve the text

messages on the iPhone?

A No.

Q Did you take any steps to preserve any

10 voicemail on the Galaxy?

11 A No

12 Q Or on the iPhone?

13 A No

14 Q Or the records of phone calls on the Galaxy?

15 No

16 Or records of the phone calls on the iPhone?

17 No

18 Do you still have the Galaxy phone?

19 Do you still have the Galaxy phone?

20 No It's never in my possession.

21 Okay. In whose possession was the Galaxy

22 phone?

23 I don't know.

24 And whose phone was the iPhone?

25 I don't know.

TORREANO REPORTING AND VIDEO 134
www.torreano-depos.com (844) NOW-DEPO
A No.

Q This morning I received from Mr. Milde when

you arrived at my office a series of Wells Fargo

combined statement of accounts; is that correct?

A Yes.

Q Did you obtain these yourself?

A Yes.

Q How did you obtain them?

A From the Wells Fargo website, the account.

10 Q And do you have the password that allowed you

11 to access these statements?

12 A Yes.

13 Q The statements indicate that there have

14 been -- did you request any checks?

15 A This account is actively used by Vy Nguyen.

16 So I'm not too familiar with it, but I do have the

17 password.

18 Q Okay. Did you ask for copies of checks?

19 A No.

20 Q Why did you not ask for checks?

21 A Because I don't use this account.

22 Q Any other reason?

23 A No.

24 Q Okay. Are you aware that you were requested

25 to produce copies of checks?

TORREANO REPORTING AND VIDEO 139
www.torreano-depos.com (844) NOW-DEPO
A Yes.

Q Okay. And are you aware that the court

ordered you to produce documents at today's deposition?

A Yes.

Q Okay. In light of the fact that you know you

were requested to produce checks and that the court had

ordered you to produce documents at a deposition why

did you not ask for checks?

MR. MILDE: Objection. Vague and ambiguous.

10 We'll provide the checks. We haven't had a chance to

11 go through them. He's got access to the account. So

12 we'll get those checks to you.

13 BY MR. DRESSER:

14 Q Please tell me why you did not bring the

15 checks.

16 A I didn't have a chance to look at it. I need

17 some more time.

18 Q Did you look at any of the checks online?

19 A Yes.

20 Q The time period for these statements commences

21 June 1, 2016 with the last statement ending June 30,

22 2017. Are you aware of that?

23 A Yes.

24 Q Is there a reason why that was the limited

25 time period during which you produced these statements?

TORREANO REPORTING AND VIDEO 140
www.torreano-depos.com (844) NOW-DEPO
RE: Bic Pho and iDragon, LLC v EastWest Trading Co., LLC, et al Sant... https://mail.aol.com/webmail-std/en-us/PrintMessage

Breck E. Milde
To: Tiffany.Mathis@wellsfargo.com ; loofwcd@aol.com
Subject: RE: Bic Pho and iDragon, LLC v EastWest Trading Co., LLC, et al Santa Clara Superior Court action no. 16CV300343
Date: Tue, May 14, 2019 10:43 am

Thanks for dropping off copies of the Wells Fargo documents yesterday.

I will stipulate that the statements of account are Wells Fargo’s business records, but the checks and deposit slips would
have to be authenticated by a person with personal knowledge.

Breck E. Milde

hopkins carley

Hopkins & Carley | A Law Corporation
San Jose | Palo Alto

CA 95113

Main: 408.286.9800

milde@hopkinscarley.com

hopkinscarley.com

From: Tiffany.Mathis@wellsfargo.com
Sent: Tuesday, May 14, 2019 10:34 AM
To: loofwed@aol.com
Breck E. Milde ; Tiffany.Mathis@wellsfargo.com

lof 4 5/14/2019, 1:04 PM
RE: Bic Pho and iDragon, LLC v EastWest Trading Co., LLC, et al Sant... https://mail.aol.com/webmail-std/en-us/PrintMessage

Subject: on, LLC v EastWest Tr 1 Santa Clara Superior Court action no.
16CV300343

Hello,

Yes, we can coordinate a witness for Thursday at 9a.m. In the event of a stipulation, I may be reached at the number
below.

Thank you,

Tiffany Mathis
Operational Risk Consultant

Regional Services Legal Support

Regional Support

MAC A9531-010

Tel (415) 516-5779 | Fax (866) 968-0544

Tiffany Mathis@wellsfargo.com

From: Bill Dresser ; bmilde@hopkinscarley.com
Subject: gon, LLC v EastWest Trading Co., LLC, et al Santa Clara Superior Court action no.
16CV300343

Ms. Mathis and Ms. Villa:

We have a trial department. Trial commences tomorrow, Wednesday, at 9 am, in Department 16, Judge Monahan, at 191 North First
Street, San Jose, CA 95113.

Are you able to arrange a witness for Thursday, May 16, at 9 a.m. in that Department?

If on assignment to Department 16 the opposing counsel stipulates to authenticity, I will call you immediately. A copy ofthi
sent to that counsel, Breck Milde.

2 of 4 5/14/2019, 1:04 PM
RE: Bic Pho and iDragon, LLC v EastWest Trading Co., LLC, et al Sant... https://mail.aol.com/webmail-std/en-us/PrintMessage

Thank you.
Bill Dresser

From: Bill Dresser ; bmilde

Case Info

Judge

William J. Monahan Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

May 14, 2019

Case Filing Date

September 26, 2016

County

Parties

Bic D. Pho Plaintiff
Breck E Milde Attorney For The Defendant
Eastwest Trading Co, LLC Defendant
IDragon, LLC Plaintiff
Jiang "Ben" Kuang Defendant
Pro Legal Services Corporation Defendant
Properties & Beyond Corporation Defendant
Properties & Beyond Partnership Defendant
Vy Le Nguyen Defendant
William Charles Dresser Attorney For The Plaintiff
Christopher Hohn Attorneys for Defendants

For full print and download access, please subscribe at https://www.trellis.law/.

Motion,Ex Parte: Bic Pho et al vs Eastwest Trading Co, LLC et al

Preview

Related Topics

Case Info

Parties