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  • Nhan Tran vs Lily Huang Professional Negligence Unlimited (25)  document preview
  • Nhan Tran vs Lily Huang Professional Negligence Unlimited (25)  document preview
  • Nhan Tran vs Lily Huang Professional Negligence Unlimited (25)  document preview
  • Nhan Tran vs Lily Huang Professional Negligence Unlimited (25)  document preview
						
                                

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Nhan T.Tran I F l L E 3214 Trellis Place JUN 1 3 208 San Jose, CA 95135 PH: (408) 238-5155 Clerk Superior Court otonAtClzu 0939:; cm. BY r, In Pro Per ..__DEPUTY ’t‘ TOM“ IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA NHAN TRAN Case No.: 16CV299625 10 Plaintifi, PLAINTIFF RESPONSE T0 SEPARATE STATEMENT OF UNDISPUTED ll vs. MATERIAL FACTS IN SUPPORT OF DEFENDANT LILY HUANG'S MOTION 12 LILY HUANG, AMIEL WADE and DOES FOR SUMMARY JUDGMENT VVVVVVVVVVVVVVVV l3 l through 20, inclusive, Date: June 14, 2018 14 Defendants. Time: 9:00 a.m. Dept. l9 15 Hon. Peter Kirwan 16 Date Filed: September 2, 2016 l7 18 Plaintiff Nhan Tran submits the following response to statement of disputed material facts 19 with references to supporting evidence in opposing t0 defendant Lily Huang Motion for 20 Summary Judgment. 21 22 Moving Party 's Undisputed Material Facts Opposing Party 's Response 23 & Supporting Evidence & Supporting Evidence 24 1. Plaintiff retained Defendant Lily Huang on or Undisputed. 25 about September 30, 2014 to represent 26 Plaintiff in a marital dissolution action against her ex-husband, Santa Clara Superior 27 Court action #2009-1 -FL- 151 146 (hereinafier “Marital Dissolution Action”). 28 Complaint, 2:4-9, Exh. A, p.1 PLAINTIFF RESPONSE TO SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPORT DEFENDANT LILY HUANG'S MOTION FOR SUMMARY JUDGMENT l were you discuss about them and some division of W? his misappropriation of what about the QDRO? 1/2 what? pension? heliquidated majority of were closed without disclosure. these are also important factors as part of the decree judgment. me know when pleaselet you are well enough to discuss these matter? Date:Fri,19Dec 2014 10:02:43 -0800 from settlement discussion Subject: notes From: Ji_ly,|.huang@gmgil‘ggm To:nhangrawfggthggmaiLng the scanner please see attached. islegal size. 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EXHIBIT 13 fi—__ff i , _,V Re: notes from settlement discussion é Lily Huang Mon 12/22/2014 1:44 PM To Nhan Tran ,‘ chance that you may end up paying more; the minor's account there's a isanother issue thatl need details you,can you provide statements to document and verify what you're expressing to me is in fact true. On Mon, Dec 22, 2014 at 1:42PM, LilyHuang wrote: should discussQDRO issue with Strasen,most of the information is for the parties to supply to Strasen directly. Isee,Ithought you wanted someone else to go forward with this;didn't Amiel sayhe was okay to help you if need? really I don'tmind meeting with you both to talkabout the termst On Mon, Dec 22, 2014 at 1:37PM, Nhan Tran wrote: what about the and the qdro? when are you going to response to those? When are you stipulation them? avaiIable to discuss there are multiple mistakes whoie settlement as addressed below. they in this need to be address as a whole and be ali what to ask the clear of court for reconsideration part or whoIe agreement: set aside? re—negotiation? go to trial? etc... I've The consensus suggestion interview lawyers per your suggestion to get on board on this matter. isthat the best option is on for the attorney record representedme to rectify thesemistakes with court before itbecomes final judgment. None of them wants to cleanup the mess since they were not presence at the supervised settlement and the details were not on record. judicial The final terms were not specifics to reflect the mistakes made. Date: Mon, 22 Dec 2014 11:34:24 ~0800 Subject: Re: notesfrom settlement discussion From: i_i_|y,|.hg§gg@gmail,ggm To:nhanggflgrtthggmailggm Dear Nhan, for the reconsiderationIneed the following: 1.statements for theUTMA accounts 2.explanation forwhy thisisnew evidence from you; my statement wiIIbe separate from your declaration for the set aside: 1.thereis a mistakein it was not clear to me that the minors' accounts included the UTMA accounts referencing minor's savings account, that hasfuIIbalances. the spreadsheetshows that the minor's account balances were not as funded as you are not telling me. Who will be your attorney moving forward? should probably letthem be on board make an assessment with this to of whether to proceed this route. ihave quite abitof mucus and head congestion im dealing with.thanks for asking“ kind regards |in On Sun, Dec 21, 2014 at 9:09AM, Nhan Tran wrote: "It seems that you're committed to a set aside and reconsideration. For me the fact that the utma account has money in it at full value is enough of a mistake to set aside." Yes. the motion for reconsideration needs to be prepare rightaway, 10 days window. depending on mistakes do you (facts, law, duress,etc.t.), think utma acct alone is enough to vonvincejudge to set aside theaIIterms at settlement? pIease start the motion now, our only chance to take a crack it‘s atthe unjust mistakes ihope you feel better. EXHIBIT 14 RE: edit Nhan Tran Tue 12/23/2014 11:01PM Huang To Lily ; regarding lawsuit, civil itwas sworn in court. yes. one of the it is mistakes. argue that to yohanan.he took advantage. yes, mistakes made. At least $300k in negotiation and $1.6 mil law suit. so let'sfocus on the motions to set them aside. MR. YOHANAN: The civil suit, we would like it dropped in its entirety with prejudice. MS. HUANG: That's all right. THE COURT: And a dismissal will be on file by November 30th. Okay? MR. YOHANAN: That's fine. THE COURT: 2014. Date: Tue, 23Dec 2014 22:21:20 -08OO Subject: Re: edit From: lily.l.huang@gmail.com To:nhancrawforth@hotmail.com they were discussed with you,Iwillforward you the notes again. inregards to the was we civil suit talked about itduring our phone conversation that my notes had Linden for the and did not note that civil suit other defendants are part of the settlement.the suit civil should be dismissed inregards to Linden the issue of misappropriation if isresolved. as to other defendants,I don't know them nor are they part of the suit in family court. they were included if in lastminute that was not part of the discussion, and| did not hear John mention that othernamed defendants be dismissed, Id0 agree that as against Linden, should be with it prejudice. where isthe document you saidyou willsend me? On Tue, Dec PM, Nhan Tran 23, 2014 at 10:15 wrote: please show the notes that showed these details/terms that were discussed to me other than numbers? No, they maybe discussed during negotiafion but not with me! also please show me notes that said linden only and not other defendants.I was not asked nor discussed on this matter at " any time including allthe terms. you agreed in court without even discussing it with me: page 5, line 1 that's alright". please look at yohanan's settlement, lt seemed like got everything were asked and a lot more. I sent email asking you to focus on preparation for settlement, none were discussed and no worksheet prepared. all you asked was for the whole Unread of the email. so, please provide me with your notes (other than the one emailed) that those terms were discussed with me. Date: Tue, 23 Dec 2014 20:47:32 —0800 To: WWW Subject: Re: edit From: lilylhuaLIgngaime the attachment A isthe spreadsheet exhibitinthe Petitioner's exhibit list. we discussed these details during recess. On Tue, Dec 23, 2014 at 8:36PM, Nhan Tran wrote: please letme look over the drafl first before sending to john. too many changes/dram gets confusing. allthese deans were not on records nor were discussed with me during negotiau‘on. yohanan willuse of all them to his advantage later. where's me attachment A mentioned? Date: Tue, 23 Dec 2014 19:11:48-O800 WWW Subject: edit From: T0: lilymuangfifigmalmm please see attached. lam going to send John the same. with the reservation that you willprovide more changes indue course. This e-mailistransmitted for the intended recipient only and itscontents are provided for information purposes only.Any review, re-transmission, conversion to hard copy, copying, reproduction, circulation, publication or dissemination of the contents of this message and any attachments by persons other than the intended recipientis prohibited; strictly Ifyou have received this message in error, please contact the sender and delete thismessage and attachments from any computer, disk drive, diskette or other storage device or media. This e-mailistransmitted for the intended recipient only and contents are provided for information purposes only. its Any review, re-transmission, conversion to hard copy, copying, reproduction, circulation, publication or dissemination of the contents of this message and any attachments by persons other than the intended recipient is strictly prohibited. lf you have received this message in error, please contact the sender and delete this message and attachments from any computer, disk drive, diskette or other storage device or media. This e—mail is transmitted for the intended recipient only and its contents are provided for information purposes only. Any review.re- transmission,conversion to hard copy, copying, reproduction, circulation, publication or dissemination of the contents of this message and any attachments by persons other than the intended recipientis prohibited. strictly Ifyou have received thismessage please contact the in error, sender and delete thismessage and attachments from any computer, disk drive, diskette or other storage device or media. EXHIBIT 15 RE: my edits Nhan Tran Wed 12/24/2014 11:11AM TcLin Huang <|ily.|.huang@gmail.com>; we serious need to discuss these legal matters and lawsuis when are you available? you cannot delay further. lily. there are a lot of money at stake here and motions need to be brought forward to rectify the mistakes. yohanan talking to willnot work. he took full advantage of this case. pursue it in other venue of laws. the only way! Date:Wed, 24 Dec 2014 10:5l229—0800 Subject: Fwd:my edits From: |ily.l4huang@gmai|.com To: nhancrawforth©hotmaiLcom ---------- Forwarded message From: Huang Lily <|_i|y,l.hg§ng@gm§il.ggm> Date: Wed, Dec 24,2014 at 10:50AM Subject: Re:my edits To: John S Yohanan lwillneed to go to my today to office later retrieve the spreadsheet.for the sake of clarity for the parties and future enforcement matters, it may be beneficial to include the accounts that were considered. thank you for your feedback, im reviewing them too“ On Wed, Dec 24,2014 at 10:28AM, John S Yohanan wrote: Ms. Huang: Attached isthe final revised stipulation for judgment. |wi|l address the changes | made in the order of the paragraph numbers noted by you in your email from yesterday's date. 1a. l changed $1 million to$1,100,000. No further change was made as the record was silent on identification of the accounts. lb. No change was made. There ls no exhibit A. however, if you want to prepare an exhibit | will consider adding it. The reference to the balance of the 401(k) was not added as the facts are clear, the balance is on deposit with fidelity. 1c. no change was made. Everything is disputed in this case, not just the amount of arrears. It does not matter what your client claims the amount was. it is not necessary to include itin the stipulated judgment. There is already a paragraph regarding waiver of the fair rental of the value of the residence. There was no agreement that fair rental be waived after September 2017 should your client not cooperate with the sale of the property or ifthe purpose of the occupancy of the residence by your client should fail to exist. 3. $79,000 isthe accurate figure. Income was imputed at the rate of $38 per hour. 7. l have modified this paragraph. 10. Your notes are not correct. Regardless, the entirety of the action has already been dismissed with prejudice. This is a moot point. 11. There is no exhibit A. No modifications were made. This applies to all educational accounts, including the one that will be created in the future from your client's share of the home sale proceeds. Additional terms 2. I have revised this to simply state any existing life insurance policies. l have also added a paragraph 12 regarding the eldest daughter’s vehicle. You mentioned in an email that your client will have input. This is unacceptable. Your client's input delayed conclusion of this case for five years. The attached stipulation must be signed and in my office by December 31, 2012 at 2 PM. No further delays will be tolerated. John S. Yohanan Attorney at Law 333 W. Santa Clara Street Suite 620 San Jose, CA 95113 Telephone: 408-297-0700 Facsimile: 408-297—7788 E-Maii: john@isy.ehananlaw.s_qm CONFIDENTIALITY NOTICE. Unauthorized interception of this email message could be message, and a violation of the law. This all attachments, contain confidential information belonging to the sender and ismeant only may for the use of the intended recipient. lt be communication under applicable a privileged law.You are notified here that any copying, distribution, or disclosure of thismessage or the taking of any action inrelianceupon thismessage isprohibited. Ifyou have receivedthismessage please notify the in error, sender immediately and delete the message from your computer. Thank you for your attention. From: LilyHuang [mailto:flyMg@,gmaime] Sent: Tuesday, December 23, 2014 8:49 PM To: John S Yohanan Subject: Re: my edits the 300k was reduced from the original 317kinand thatMr Crawforth shallpurchase a new vehicle for daughterupon passing of driver‘s license test. On Tue, Dec 23, 2014 PM, at 7:14 Huang Lily wrote: Also please note that Ms. Tran willhave her own input in due course. EXHIBIT 16 [_, RE: declaration Nhan Tran Mon PM 12/29/2014 4:19 Huang ; To Lily Lily, thank you for the info. I appreciate your willingness to file the mofions. it was good to meet and dear up some unclear issues at the judicial settlement mat resulted in the terms recited in court since 11/18/14. I now have a better understanding of some of the facb revealed yesterday of what occurred in me judicial settlement. We need to find ways to rectify disc mistakes. I will list them in spreadsheet for ease of comparisons and to look for causes/facs for the mofions. what are the legal ramifimu‘ons of those terms I were railroaded and sworn in court (without prior knowledge/discussion/advise)? Please limit your communicate to yohanan with care in legal matters. he'll use them to mke advanmge. We also need to prepare for his filing the 664.6 motion to enforce by 12/31/14: stipulation- the terms were incorrect prepared and did not reflect the actual terms recited in court. me details of those terms were excluded and not clearly specified, especially, his various misappropriation of the 401k's and IRA's. they were the asses. listed in payment of $300k. termination of spousal support termination divorce modify child support wim imputation no medical coverage for me and I'm not (he's not providing info. for cobra qualify forObama care program due to low income) 1.mmgmmymmedm They were jolnt spousal consent since opening about 1 year of age including gifls from family.He did not dispute mem. 0n he asked to be transferred to his contol. his trial brief, item J, He has control of 2 of theirUl'MA accounts listed already. at the MSA on 11/6/14, the same questions asked. I refused. reasons stated mat he's an alcoholis with financial destruction trad< records. he has no dedslons making in regarding children's welfare, activifies, or involvement in their daily lives. therefore, should not have control.This was the reason of yohanan filed die limine motion before trial. he did not want his medical records on trial. 2. WW: Court order in March 2012. theirmoney to spend. 100% timeshare to mother with the rights to make decisions. his sole purpose was to have below are some facts under this code. we need to come up with strong facts to support fliis motion. What about taxes implication on utma accts? His contempt for not provide bonuses received nor payments? Have you consider item #3: the need to correct a clear error of law or ho prevent manifest injustice? Your idea of item #1 as basic for this motion in regarding new evidence that not previously available. what basic do you consider that it was not available regarding the children's accounts. facts were given in mine and Reese's spreadshees. I believe your misunderstanding of facts and/or interpretation of the existence of the kids' accts during settlement. These accts. were also stated in the final disdosure/declaration as (S) separate properties. the accml provided you were to confirm their funds are accountable for. they are separate properties belong to the kids and should not have been induded in the marital asset's division. whose decision was to include them? this is the error that should be pointed out. I've reread the deposition. your undersbnding of my aces and inte/pretation here are incorrect regarding property in vestmens and family’s gifis of help. these monies came from separate aa'ts. l gave you cvpies of the property title. my final declaration, he also bought land in Philippines a/so.”a/so there 13; a chance 0f the other party’s raponse ta our request for set a:lde; the alleged new evidence you ’re providing me in mil soon depending on what you declare, mayl used against you. Based on my review of your deposition, the other party may be inclined to say that you intentionally failed to account for the monies and raise we doubt that your excuse that the monies went to bad investmens and yo sister’scancer and to your brother were al/fabricated go for more than they are currenfly asking fdr o as for the $1.1 million you were thinking on yohanan's settiement worksheet, it indudes the $615k value of the trellis home, utma's, my separate accounts and community accouts. I wanted a buyout and this was not the case. So basically, your negotiation were all to his benefits. The math shown is dear on that sheet. what they did not show were his misappropriafions of over $1 mii currently worth of 401ks after ATRO and stocks. o I have not seen any of my claims to my benefits in all of these negotiation results? o I don't believe there was a worksheet prepared for the settlement or the terms were discussed with me. 3- MM o ' n Does 74 (magnet. thisneed to be filed inconjunction with 1008 or later? As the attorney on record with sworn duty to protect, advise on legal matters and to advocate/represent dient's best interests at tn'ai or during setdement. There seemed to be a lot of presumptions and mistakes made during negotiation and terms at sworn in at court. I'm asking you to do the right thing to rectify these erroneous mismkes that would be UNJUSI’ and are causing major financial damages if not corrected now. Please carefully consider more opfions to convince the judge to vacate the settlement. You were there in the chamber with her so you would know how she worked. we'll discussmore, ake are, n. here are some info.I've read. Mpzflwww lggglggggggiutigns cgm[Iawsgorgblggzghe-angtgmy—gf-a-gogcgssful-reconsideration-r§qg;t[ A motion for reconsideration isgenerally allowed only on one of these grounds where there has been an intervening change in the controlling law, where new evidence that was not previously available has become available or where it is necessary to correct a clear error of law or to prevent manifest injustice. The Federal Rules of Civil Procedure do not spedfically provide for the filing ofmofions for reconsideration. Instead, such motions for reconsideration request are treated as a motion to alter or amend a judgment under Fed.Rules Civ.Proc.Rule 59(e) or motions for relief from judgments or orders under Fed.Rules Civ.Proc.Rule Rule 60(b). The purpose of mouon to reconsider is to correct manifest errors of fact or to present newly discovered evidence. Therefore granting motions for reconsideration for lesser causes not only wastes judicial resources, but is also unjust to the parties that have invested the time and effort arguing on the original papers. A mofion for reconsideration is generally allowed onlyon one of three grounds: 1. where there has been an intervening change in the controlling law; 2. where new evidence that was not previously available has become available; or 3. where it is necessary to correct a clear error of law or to prevent manifest injustice. Generally, a motion for reconsideration should addresses only factual and legal matters that the Court may have overlooked. It may not be used to argue a new legal meory. It is improper on a motion for reconsideration to ask the Court to rethink what it had already thought through-rightly or wrongly. Mere dissatisfacu'on with the court’s ruling is not a proper basis for reconsideration. However, in addressing the claims of a party on a motion for reconsideration, the court is free to expand upon or clarify the reasons supporting itsprior ruling. Mofions be considered when filed more than ten days for reconsideration will not generally after thejudgment at issue is entered. h___ttp:[[www.leg§leasesglggignsggm[lawstgreblgg motion—f r-rc n i r tin The strategy for a motion to reconsider needs precision and swiftness. Articulate preciselyand economically the grounds for reconsideration.Trialcourts generally do not prefer too many motions for reconsideration in their dockets. Therefore, you need to have solidgrounds for evoking the motion. Cite the specificgrounds that best apply to your situation.Generally a Motion for Reconsideration is under three grounds: filed The 1. new evidence not availability of previously available; 2.An intervening change in controllinglaw; or 3.The need to correct a clear error of law or to prevent manifest injustice. The motion should specificallyinclude the controlling cases or legalerrors thatthe attorney believes the court has overlooked or erred. important it's to remember that a Motion for reconsideration isnot an opportunity to already re-litigate decided issues It should never be a medium to put forward additional arguments that could have been made but neglected to make before judgment. Where evidence isnot newly discovered, may not be submitted in support of a Motion for Reconsideration. it economy to the court. Permitting a trial court to correct any mistakes pn'or to entry Apart from the above, urge the policy of judicial of finaljudgment serves the economy and the rules for reconsideration interests ofjudicial fulfills the same.However, remember to keep your tone neutral and not appear to be critical or argumentative in nature. One of the advantages of going in for a Motion for reconsiderationis that it acts as a cost effective appeal. You don't have to pay fresh filingfees or submit records to overcome the wrong decision.You just need to convince the court that new developments, new accurate law or a correct view of the factsjustify a ruling. Date: Sun, 28Dec 2014 20:45:50 -0800 Subject Re: declaration From: |in.|.huang@gmail.com To:nhancrawforth@hotmail.com W) Inregards toUTMA accounts, CA isa community property state, despite CA case law has your research and sentiment/rationale, estainshed the following: "Custodial gifts" to minors under the Uniform Transfers to Minors Act and convey to the minor are ”irrevocable" 'indefeasibly vested' [Prong the custodial property. title in §32mm] Even so, funded with community personal property, such if are gifts made 1051M, Fam g vulnerabie to attack under § 1199(9) unless 33}, 322-323 Marriage offitQ/Iwgrth(W) 122 gAid 742,fi_3, 237 QR flaw lMgrr/aggiflgghgnggn (Fm) withjoint spousal consent. 152gAfig 293 QR 0n Sun, Dec PM, 28, 2014 at 7:53 LilyHuang wrote: Dear Nhan, itwas good to finally meet. even in the circumstance that l lrest for the evening, do provide me am still recovering; before your declaration in new evidence regards to the thatisnow available to you, namely the now recovered checks and the bank‘s them even though they willingness to reissue are expired.Please also detail why they weren't provided or clearly discussed on the schedule previously at depositions or to the other party or listed of asset/debts (or property disclosure). Funding (and the UTMA withdrawal) of later unilateral accounts isnot exempt from fiduciary duties. the other parent/party has know about the funding and how the right to these accounts were cared for. A new evidence;if you reconsideration under ccp 1008 requires 473 inconjunction with ccp are alleging mistake/duress, ccp 1008 motion would be a good idea.However, there arerisksinvolved the process. in restarting you will have to meet still make sure you evidentiary burdens, hireyour experts and provide them documents that they ask for.the outcome of a judgment may be different than the settlement proposal better or worst. itself, also thereis new evidence a chance of the other party's response to our request for set aside; the alleged me you‘re providing soon depending on what you in full declare,may be used against you.Based on my review of your deposition, the other party may be inclined to say that you intentionally failed to account for the monies and raise the doubt that your excuse that the monies went to bad investments and your sister's cancer and to your brother were all fabricated go for more than they are currently asking for. of course whateveryou communicate to me confidential. is Since |am aware of the utma accounts and their recovered checks, Icannot sign thestipulation. kind regards lily This e-mail istransmitted for the intended recipient only and contents are provided for information