Preview
APP-010
|ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NO.: 262,120
INaMe: Phil Foster
FIRM NAME: TOUR-SARKISSIAN LAW OFFICES, LLP
STREET ADDRESS: 211 Gough Street, 3rd Floor
city: San Francisco state: CA zip cope: 94102
[TELEPHONE NO: (415) 626-7744 Fax NO.: (415) 626-8189
E-MAIL ADDRESS: phil@tslo.com
ATTORNEY FOR (name): Respondent JEANNE KWONG
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO
stReeTappress: 400 McAllister Street
MAILING ADDRESS: 400 McAllister Street
city AND zip cove: San Francisco, CA 94102
BRANCH NAME: Civic Center Courthouse
PLAINTIFF/PETITIONER: JENNIFER SHUK-HAN KWOK
IDEFENDANT/RESPONDENT: JEANNE KWONG, et al.
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
08/21/2018
Clerk of the Court
BY:MELISSA DONG
Deputy Clerk
RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL
(UNLIMITED CIVIL CASE)
‘SUPERIOR COURT CASE NUMBER:
PES-10-293505
Re: Appeal filed on (date): July 19, 2018
‘COURT OF APPEAL CASE NUMBER (if known):
Notice: Please read Judicial Council form APP-001 before completing this form. This form must be filed in the
superior court, not in the Court of Appeal.
1. RECORD OF THE DOCUMENTS FILED IN THE SUPERIOR COURT
The appellant has elected to use a clerk's transcript under rule 8.122.
a. [5¢] Additional documents. (if you want any documents from the superior court proceedings in addition to the documents
designated by the appellant to be included in the clerk's transcript, you must identify those documents here.)
In addition to the documents designated by the appellant, | request that the clerk include in the transcript the following
documents from the superior court proceedings. (You must identify each document you want included by its title and
provide the date it was filed or, if that is not available, the date the document was signed.)
[ Document Title and Description
l[ Date of Filing _|
(1)
SEE ATTACHMENT 1
(3)
[Gq See additional pages.
b. [__] Additional exhibits. (/f you want any exhibits from the superior court proceedings in addition to those designated by the
appellant to be included in the clerk's transcript, you must identify these exhibits here.)
In addition to the exhibits designated by the appellant, | request that the clerk include in the transcript the following exhibits
that were admitted in evidence, refused, or lodged in the superior court. (For each exhibit, give the exhibit number, such
as Plaintiff's #1 or Defendant's A, and a brief description of the exhibit. Indicate whether or not the court admitted the
exhibit into evidence.)
[Exhibit Number _][
| [Admitted (Yes/No)]
(1)
(2)
(3)
[] See additional pages.
Page 1 of 3
om Anprover! for Option Use RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL Col Fades of Court tiles BPO.
Judicial Council of California
APP-010 [Rev. January 1, 2017] (Unlimited Civil Case)
8.121-8.124, 8.128, 8.180, 6.134, 6.197
wwwcourts.ca.govAPP-010
CASE NAME: Kwok v. Kwong, et al.
SUPERIOR COURT CASE NUMBER:
PES-10-293505
1c. Copy of clerk's transcript. | request a copy of the clerk's transcript. (check (1) or (2).)
py
(1) [3] | will pay the superior court clerk for this transcript when I receive the clerk's estimate of the costs of this transcript.
| understand that if | do not pay for this transcript, | will not receive a copy.
(2) [__] I request that the clerk's transcript be provided to me at no cost because | cannot afford to pay this cost. | have
submitted the following document with this notice designating the record (check (a) or (b)):
(a) [-7] An order granting a waiver of court fees and costs under rule 3.50 et seq.; or
(b) [J An application for a waiver of court fees and costs under rule 3.50 et seq. (Use Request to Waive Court Fees
(form FW-001) to prepare and file this application.)
2. RECORD OF ORAL PROCEEDINGS IN THE SUPERIOR COURT
The appellant has elected to use a reporter's transcript under rule 8.130.
a. [X_] Designation of additional proceedings. (If you want any oral proceedings in addition to the proceedings designated by
the appellant to be included in the reporter's transcript, you must identify those proceedings here.)
(1) In addition to the proceedings designated by the appellant, | request that the following proceedings in the superior court
be included in the reporter's transcript. (You must identify each proceeding you want included by its date, the department
in which it took place, a description of the proceedings—for example, the examination of jurors, motions before trial, the
taking of testimony, or the giving of jury instructions—the name of the court reporter who recorded the proceedings, and
whether a certified transcript of the designated proceeding was previously prepared.)
[Date [Department |Full/Partial Day] Description Reporter's Name _| Prev. prepared? |
(a) 05-09-2018 204 Partial Hearing on Motion To Dismiss for Wendy Graves [x] Yes [] No
Failure To Bring Case To Trial CSR 6138
(b) 0 Yes [J No
(©) (J Yes [] No
(d) [] Yes [J No
(e) (1 Yes [] No
@ Yes [] No
(g) Yes [] No
[J See additional pages.
APP-010 [Rev. January 1, 2017] RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL. Page 2 of 3
(Unlimited Civil Case)APP-010
CASE NAME: Kwok v. Kwong, et al. SUPERIOR COURT CASE NUMBER:
PES-10-293505
2. a. (2) Deposit for additional proceedings
Ihave (check a, b, c, or d):
(a) [-_] Deposited the approximate cost of transcribing the designated proceedings with this notice as provided in
rule 8.130(b)(1).
(b) [-_] Attached a copy of a Transcript Reimbursement Fund application filed under rule 8.130(b)(3)(B).
(c) [__] Attached the reporter's written waiver of a deposit for (check either (i) or (ii)):
(i) [_] Allofthe designated proceedings.
(i) [££] Part of the designated proceedings.
(d) Attached a certified transcript under rule 8.130(b)(3)(C).
b. Copy of reporter's transcript.
(1) [-_] | request a copy of the reporter's transcript.
(2) [_] | request that the reporters provide (check (a), (b), or (c)) :
(a) [-] My copy of the reporter's transcript in paper format.
(b) [-] My copy of the reporter's transcript in computer-readable format.
(c) [[] My copy of the reporter's transcript in paper format and a second copy of the reporter's transcript in computer-
readable format.
(Code Civ. Proc., § 271; Cal. Rules of Court, rule 8.130(A(4).)
Date: August 21, 2018
—
PHIL FOSTER »
(TYPE OR PRINT NAME) (SIGNATURE OF APPELLANT OR ATTORNEY)
APP-010 (Rev. January 1, 2017] RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL Page 3 of 3
(Unlimited Civil Case)MC-025
SHORT TITLE:
| KWOK v. KWONG, et al.
‘CASE NUMBER:
PES-10-293505
ATTACHMENT (Number): 1
(This Attachment may be used with any Judicial Council form.)
DOCUMENT TITLE AND DESCRIPTION DATE OF FILING
Respondent Jeanne Kwong’s Notice of Motion and Motion To Dismiss March 19, 2018
For Failure To Bring Case To Trial
Respondent Jeanne Kwong’s Memorandum of Points And Authorities In March 19, 2018
Support of Motion To Dismiss For Failure To Bring Case To Trial
Declaration of Counsel Phil Foster in Support of Motion To Dismiss For March 19, 2018
Failure To Bring Case To Trial
Request For Judicial Notice in Support of Motion To Dismiss For Failure March 19, 2018
To Bring Case To Trial
Proof of Service filed by Respondent Jeanne Kwong March 19, 2018
Respondent Gary Wong’s Joinder In Respondent Jeanne Kwong’s Motion March 27, 2018
To Dismiss For Failure To Bring Case To Trial
Proof of Service filed by Respondent Gary Wong March 27, 2018
Petitioner Jennifer Shuk-Han Kwok’s Memorandum of Points And Authorities April 26, 2018
In Opposition To Respondent Jeanne Kwong’s Motion To Dismiss For Failure
To Bring Case To Trial
Request For Judicial Notice In Support Of Opposition To Respondent Jeanne April 26, 2018
Kwong’s Motion To Dismiss For Failure To Bring Case To Trial
Declaration of Daniel T. Bernhard In Support Of Petitioner’s Opposition To April 26, 2018
Respondents’ Motion To Dismiss
Petitioner Jennifer Shuk-Han Kwok’s Notice Of Association Of Counsel May 2, 2018
Respondent Jeanne Kwong’s Reply Brief In Support Of Motion To Dismiss May 2, 2018
For Failure To Bring To Case To Trial
Reply Declaration of Counsel Phil Foster In Support of Motion To Dismiss May 2, 2018
For Failure To Bring Case To Trial
Respondent Jeanne Kwong’s Supplemental Request For Judicial Notice In May 2, 2018
Support of Motion To Dismiss For Failure To Bring Case To Trial
Proof of Service filed by Respondent Jeanne Kwong May 2, 2018
(if the item that this Attachment concems is made under penaity of perjury, all statements in this Page 1 of 2
Attachment are made under penalty of perjury.) (Add pages as required)
Form Approved for Optional Use ATTACHMENT ‘win courtinto.c0.gov
Judicial Council of California
MC-025 [Rev. July 1, 2009}
to Judicial Council FormMC-025
CASE NUMBER:
SHORT TITLE:
| KWOK v. KWONG, et al. PES-10-293505
ATTACHMENT (Number): 1
(This Attachment may be used with any Judicial Council form.)
** CONTINUED FROM PRIOR PAGE ****
DOCUMENT TITLE AND DESCRIPTION DATE OF FILING
Respondent Gary Wong’s Joinder In Respondent Jeanne Kwong’s Reply May 2, 2018
In Support Of Motion To Dismiss For Failure To Bring To Case To Trial
Proof of Service filed by Respondent Gary Wong May 2, 2018
Petitioner Jennifer Shuk-Han Kwok’s Sur-Reply In Opposition To Motion To May 4, 2018
Dismiss For Failure To Bring Case To Trial
Order Granting Motion To Dismiss For Failure To Bring Case To Trial May 22, 2018
Notice Of Entry Of Judgment Or Order filed by Respondent Jeanne Kwong May 23, 2018
(If the item that this Attachment concerns is made under penalty of perjury, all statements in this Page 2 of 2
Attachment are made under penalty of perjury.) (Add pages as required)
Form Approved for Optional Use ATTACHMENT www.courtinfo.ca.gov-
“Judicial Council of California ee
MC-025 [Rev. July 1, 2009] to Judicial Council FormmOoR
w
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IN THE SUPERIOR COURT OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
HONORABLE JOHN K. STEWART, JUDGE, PRESIDING
DEPARTMENT 204
JENNIFER SHUK-HAN KWOK,
Petitioner,
vs. No. PES-10-293505
JEANNE KWONG, individually
and as a former trustee of
the STAN KWONG Irrevocable
Trust II,
Respondent.
AND RELATED CROSS PETITIONS.
REPORTER'S TRANSCRIPT OF PROCEEDINGS
WEDNESDAY, MAY 9, 2018, 1:57 P.M.
SAN FRANCISCO, CALIFORNIA
APPEARANCES
For the Petitioner FREELAND COOPER & FOREMAN LLP
Jennifer Shuk-Han Kwok: BY: DANIEL T. BERNHARD, ESQ.
150 Spear Street, Suite 1800
San Francisco, CA 94105
WOOD ROBBINS, LLP
BY: B. DOUGLAS ROBBINS, ESQ.
One Post Street, Suite 800
San Francisco, CA 94104
For the Respondent TOUR-SARKISSIAN LAW OFFICES
Jeanne Kwong: BY: PHIL FOSTER, ESQ.
211 Gough Street
San Francisco, CA 94102APPEARANCES (continued):
For the Respondent
Gary Wong:
Reported By:
MARKUN ZUSMAN FRENIERE
COMPTON LLP
BY: EDWARD S. ZUSMAN, ESQ.
ELLIOT M. RECTOR, ESQ.
465 California Street, # 401
San Francisco, CA 94104
WENDY L. GRAVES, CSR NO. 6138PROCEEDINGS
THE CLERK: May I call the matter?
THE COURT: Yes, please.
THE CLERK: This is case number PES-10~293505 In
Re: Stan Kwong Irrevocable Trust.
Counsel, please state your appearances.
MR. BERNHARD: Daniel Bernhard on behalf of
Jennifer Kwok.
MR. ROBBINS: Good afternoon, your Honor. I'm
Douglas Robbins on behalf of Jennifer Kwok.
MR. ZUSMAN: Good afternoon, your Honor. Edward
Zusman and Elliott Rector on behalf of Respondent Gary
Wong.
MR. FOSTER: Phil Foster for Respondent, Jeanne
Kwong.
THE COURT: All right. Good afternoon,
everyone. So you received the tentative and you asked
to be here to contest it, so please proceed.
MR. ROBBINS: Since we contest the tentative I
will start, your Honor.
The chief argument we want to make this
afternoon is that there is a stipulation in this case
that says fairly clearly that the parties agree that the
trial in this matter will be continued to June 26, 2017,
or to such other continued trial date, subject to Judge
Cheng's calendar and availability.
To us that means that it's a stipulation with
regard to the five-year statute. It contemplates thatJudge Cheng will hear it. It contemplates that he will
hear it when his calendar is available.
And during that period of time when Judge Cheng
was considering hearing the matter it got continued
multiple times, many times because of the court's
calendaring issues.
The very last step was that Judge Cheng couldn't
hear it on June 26, when it was set by the stip, but
instead he said he was available -- not available on
June 26, so he proposed September 25 for a trial date.
That was the fourth continuance, by the way, in this
matter.
But later in the month, in August, Judge Cheng
let us know again, unfortunately, he wasn't available
for that date either, and he had to continue it, yet
again the fifth continuance. He didn't specify when,
except that he said he would be available at some point
in 2018.
So it was our understanding, based on the stip,
based on Judge Cheng's availability, that we would be
having the matter tried at some point by him in 2018.
And for those reasons we don't think the five-year
statute applies, because the statute contemplates the
parties will and can stipulate to continuances.
That, in fact, is Section 583.310 of the
California Code of Civil Procedure. And that's what the
stipulation does.
THE COURT: Counsel?27
28
MR. FOSTER: Your Honor, Phil Foster for
Respondent Jeanne Kwong.
The stipulation to continue the trial date
cannot be read as an open-ended extension of the
five-year statute. And in the reply papers I believe
Gary Wong's counsel cites the Chapin v. Superior Court
case in which the Court -- the Court of Appeal has a
stipulation very similar to the stipulation here, to
continue the trial for the convenience of the court, and
the plaintiff wants to construe that trial continuance
stipulation as an open-ended extension of the five-year
statute. And the Court of Appeals said absolutely no in
the Chapin case.
What must be read into the stipulation is that
the five-year statute is only extended for a reasonable
period of time, and they cite Civil Code 1657.
So this indefinite extension argument is
contrary to the law, and as the Chapin court points out,
it would undermine and be contrary to the very five-year
statute.
The terms of the trial continuance stipulation
that the parties agreed to was further continuances for
Judge Cheng's availability. But on August 25th, 2017,
when Judge Cheng tells petitioner to return to 206 and
get a new trial assignment, there is no further
agreement about trial continuances.
There is no agreement among the parties for a
trial continuance or petitioner to delay or take so long27
28
to return to 206.
There is no agreement in place for a trial
continuance based on the calendar or availability of
other judges. That stipulation terminated by its own
terms on August 25th, 2017, and it can't be read as an
agreement for any continuance past that date.
Now, as of that date -- well, there has been --
counsel raised in his arguments that there may be a
belief that Judge Cheng was sending the parties back to
206 just so we could be returned to Judge Cheng at some
point in the future, and that was not at all envisioned.
I know because I was there.
And Mr. Bernhard's impression of it is --
petitioner's counsel, is the same as mine. In April of
this year, Mr. Bernhard filed a declaration in which he
described that August 25th event, when Judge Cheng said
seek a new trial assignment. And in Mr. Bernhard's own
words he says the parties were advised to consider
finding a different trial court. And we attached that
to a Request for Judicial Notice. This is
Mr. Bernhard's April 3rd, 2018 declaration, which is
contrary to the argument that's been made today.
So there is no way that that trial date
stipulation can be read as an open-ended extension of
the five-year statute. The five-year statute expired a
month after Judge Cheng said go back to 206 and get a
new trial judge assignment.
When petitioner made no effort within that monthand made no effort within the next seven to eight months
even after the five-year statute ran, petitioner put
this court in the position where now this case must be
dismissed, and it's mandatory for the court to do so,
THE COURT: All right. Counsel, any rejoinder?
MR. ROBBINS: A few arguments, your Honor.
First of all, we agree. This is not supposed to
be an open ended or, quote unquote, indefinite
extension. As counsel said himself, the extension of
time is for a reasonable period of time. The language
in the stipulation says when Judge Cheng is available.
That's reasonable. Judge Cheng said he wasn't available
in 2017. He said he would be available in 2018.
It's not unreasonable for us to rely on the
stipulation that says we will try the case when Judge
Cheng is available. It's not unreasonable that Judge
Cheng extended the date by a certain number of months.
It's not years, not indefinitely.
The second argument is that the Wong arguments
that counsel is arguing are in a reply that we're unable
to respond to because those arguments should have been
made in the moving papers. Had those arguments been
made in the moving papers, we would have been able to
respond with our own citation and argument.
But because Wong did not make a moving argument
and simply sandbagged us in reply, we're unable to make
that argument.
So for that reason we ask that the Wong27
28
arguments be struck, or the alternative that this motion
be continued to give us an opportunity to brief it at
minimum.
But on its merits, the third argument made by
counsel this afternoon is that the stipulation
terminated, quote, by it's own terms in June 2017.
MR. FOSTER: August.
MR. ROBBINS: Sorry. By August, 2017. But by
its own terms it doesn't terminate by any particular
time. It terminates after such continued trial date
subject to Judge Cheng's calendar and availability.
That's not a hard date in time for when this stipulation
terminates. It terminates after Judge Cheng is
available and hears the matter.
We relied on those terms, terms they agreed to,
we agreed to, we believed and they believed was
operative.
Finally, argument is made this afternoon that
somehow that this stipulation expired in September,
after Judge Cheng sent the parties back to another
department. But again, that's not what the stipulation
says either. None of the parties amended the
stipulation either orally or in writing to say, oh, by
the way now that Judge Cheng has asked us to go back to
the department and reset this for another trial date
that that somehow terminates the stipulation. No one
agreed to that.
The parties actually held to the terms they27
28
agreed to. We relied on those terms. We had no reason
to believe the other side magically now thinks they are
terminated by any terms.
And the final thing to keep in mind, your Honor,
is that this is not just a stipulation with regard to
time. This is a stipulation with regard to Judge Cheng
hearing this matter. All the parties agreed that would
happen.
He was the single assignment judge after Judge
Goldsmith retired and after Judge McBride retired. We
all agreed he would hear the matter. He had heard the
previous matters. He had education in this action. And
so the parties were relying upon and had agreed to that
Judge Cheng was the right judge to hear this matter, and
that a new judge shouldn't have to come in and have to
reeducate himself or herself.
So for all those reasons we believe the
stipulation was operative. It's a real stipulation.
The parties should be held to its terms. We had no
notice or understanding that somehow the parties would
need to have it voided. There is no subsequent
stipulation. There is no order of the court to that
effect.
For those reasons, we think that we should have
an opportunity to try this matter on its merits in front
of Judge Cheng and have the case decided that way, not
on a technicality.
THE COURT: Anything further?10
MR. ZUSMAN: I will speak briefly on the issue
of the reply, your Honor.
On behalf of Gary Wong, we joined the moving
papers, we joined the reply, we filed a supplemental
reply that simply relates to matters that were directly
linked to arguments, principally the estoppel argument
that were made in the opposition that arose from the
estoppel based on conversations or communications
between counsel for the other parties in the case to
which we were not a party. And that was a unique
argument arising from the opposition that we raised in
our reply in addition to relevant case law.
The petitioner filed a sur-reply and they also
had the opportunity to argue this morning. There is no
prejudice whatsoever.
MR. FOSTER: And, your Honor, I represent Jeanne
Kwong, so certainly I am allowed to make that argument,
as I already have.
The argument that I'm hearing from petitioner
today is contrary to what petitioner's other counsel,
Mr. Bernhard, said happened ON August 25th, which is the
parties were advised --
THE COURT: Well, the record will speak for
itself there. Whatever counsel's interpretation is,
someone did supply the transcript. The transcript is
what it is. I can read the transcript.
MR. FOSTER: Yes.
THE COURT: Anyway, it seems no to me that there11
is always this question of reasonableness, which applies
to any extension, and there is also the duty of counsel
to exercise due diligence. Every single Court of
Appeals talks about that requirement, exercise due
diligence.
In this case, it seems to me that probably --
well, let me go back.
There was a stipulation, and you know the
sequence better than I do. But there was a trial date
of April 25th or something like that. That was
continued to June 25th, and then at that point didn't
Judge Cheng change it to September 25th?
MR. FOSTER: At that point it was indefinite.
The parties volunteered September 25th.
THE COURT: That was the suggested trial date.
MR. FOSTER: And Judge Cheng said I'm going to
hold that as a protective date. I will let you know.
When he let us know on August 25th, he said I'm not
going to be able to do your trial. You need to return
to 206.
THE COURT: So it seems to me that the cutoff
date for the five-year statute, the one that the parties
could reasonably rely upon and expect would have been
September 25th, because you both agreed the trial could
be set there and that was prior to the time the
stipulation ran.
But in August, Judge Cheng said he can't have a
trial in September. You are going to have to go back to12
206. And he didn't set it in his own calendar. He
didn't say, okay, we're going to start trial in October.
He said go back to Department 206. Well, that's the
master calendar.
At that point, due diligence had to be
exercised. You could have told Judge Cheng then, well,
we have a concern. There is a five-year statute issue
here. We need to get a trial date right now. Or you go
to Department 206 a week later and ask for a
trial-setting date. We need a trial date before
September 25th, because we have a five-year statute
issue.
And there was apparently no conversation with
defense counsel about selecting a date. And just to
assume that it was just going to run indefinitely
because there was no date at that point beyond September
25th that the parties had discussed or agreed upon,
there was no date given by either Judge Cheng or by the
master calendar department, Department 206, it was just
out there in Never, Neverland, and nobody did anything
about it.
MR. BERNHARD: May I respond, your Honor?
THE COURT: Let me finish my brief thought here.
I'm looking at a case, for example, called
Hoffman versus State of California that was cited by one
of you. 171 Cal.App3rd 1100. In that case the parties
had a trial date on July 25th. The five-year period ran
on August 8th, and the court notified the parties that27
28
13
there was no courtroom available on July 25th.
But the parties didn't show up in court on the
25th. They just said, well, we understand that there is
no trial date available. And the court took it off
calendar.
And then there is an effort to put it back on
the calendar, there was a motion heard regarding experts
in September, and then the Court assigned the case to
trial January 9th, 1984. The defendants filed a motion
to dismiss in November, prior of course to January, and
the motion was granted.
The Court of Appeals just said the burden is on
plaintiff to first establish in the trial court by clear
and convincing proof the existence of either
impossibility, impracticality or utility of bringing a
matter to trial within five years.
But they went on to talk about when alarms
should have gone on in the plaintiff's mind. Be that as
it may, when the bailiff called inguiring as to why
neither appeared for the trial call on July 25th a clear
alarm was sounded and should have been responded to by
checking directly with the Court as to the disposition
of the case that case. Even this did not arouse an
immediate response from counsel.
So I mean, there is a due diligence, and that
just wasn't exercised here, in my view. Clearly, alarms
should have gone off when this case that was -- the
parties had agreed was going to be set for September14
25th wasn't going to go on that date.
Judge Cheng said, Well, you better to go
Department 206.
Well, at that point you should have gone to
Department 206 and said, we need a trial date. We have
a five-year statute, so it should be set before
September 25th, unless counsel agreed otherwise, and
that just didn't happen.
The motion here to set the case for trial really
wasn't filed until after they filed their five-year
statute to dismiss. I just see nothing happened from
the time Judge Cheng said go to 206 until this motion
was filed.
MR. ROBBINS: May I respond?
THE COURT: Yeah.
MR. ROBBINS: My understanding is that we did go
to the department to get new trial dates, number 1.
THE COURT: Is there anything in the record or
anything? I haven't seen anything to establish who said
what to whom or whether there was anything on the
record.
MR. ROBBINS: Mr. Bernhard's declaration
discusses when he went to the department.
When did you go to the department?
MR. BERNHARD: If I may, your Honor. I have two
declarations in this matter. One in opposition to this
motion, and another in support of setting a trial date.
And I think I discussed my office's activities15
in talking to Department 206 and to Department 204 and
also Department 606, where Judge Cheng was in those.
Basically, we approached this department in
February. This department, I think, contacted 606. 606
then contacted us and said we should set a status
conference.
THE COURT: This is in February?
MR. BERNHARD: I believe this is in February.
THE COURT: This is six months after Judge Cheng
said go to 206?
MR. ROBBINS: The reason why, your Honor, if I
may. We believe we were protected by the stipulation.
THE COURT: Did you have any discussions with
plaintiff's counsel about that? Because, I mean -- the
other side, because there was that stipulation signed in
November with regard to other cases that expressly
excluded this particular case from any further
protection from the five-year statute.
MR. ROBBINS: Except that this stipulation, the
one that we cite to, specifically says that it will not
expire on any -- in June 2017, but shall be continued --
so, your Honor, if I may.
The Hoffman argument does discuss impossibility
and practicality of utility, but there is no stipulation
in that case. We were relying on the stipulation.
Two, when Judge Cheng says, go to Department
206, we did not understand that to mean either I, Judge
Cheng, am overruling your stipulation, nor did parties27
28
16
come to us and say, now all bets are off, we are
rescinding the stipulation and the language about shall
be heard by Judge Cheng according to his availability is
off the table. None of that is true.
In fact, they don't say the stipulation is dead
or rescinded or anything. They wait quite a bit of
time, until the middle of this year -- I'm sorry -- the
middle of, yeah, this year, to make this argument,
leading us to believe to rely upon the old stipulation
being in effect.
We have no reason to believe from the other side
that the stipulation isn't in effect and is not
protecting us. To the contrary, they lead us to believe
that it is in effect and is protecting us. That's why
we signed it.
The final argument is that, we will say again,
the language of the stip is not indefinite, it does not
go on forever, nor on the other side does it set a hard
date for the hearing. It refers to the June 2016 dates,
and it says after that in the clause, or any other date
as Judge Cheng's availability may allow.
Now, had that language not exist, then I think
they are right and they win this motion. But the only
way for this court to rule against us is to believe --
is to strike that language suggesting that there is a
hard date in that stip, and that the other language
allowing for an additional trial date after that point
is somehow superfluous or meaningless or not part of the27
28
17
agreement.
It is part of the agreement, we relied upon it,
and we had no reason to believe the other side was
vescinding that part of the agreement until this motion
popped up on your calendar.
For those reasons we think the matter should be
heard on its merits, not on this technicality and sort
of this trick about, well, what the stip meant or what
it didn't mean. Now we said one thing and now we're
taking back those terms later.
THE COURT: The stip was signed in April 2017?
MR. ROBBINS: It was April or May of 2017, your
Honor.
THE COURT: It continued until when?
MR. ROBBINS: It said that to June 26, 2017 or
to such other continued trial date subject to Judge
Cheng's calendar and availability.
THE COURT: That takes you to -- and then you
had discussed September, and I think you had reason to
rely upon extending it past that June date to September.
But after that, when Judge Cheng said, I can't
hear it, you are going to have to go to 206 and maybe I
will be available in 2018 sometime, but I can't tell you
when, that's when the alarm bells go off, and that's
what the cases talk about.
The whole essence of this five-year statute is
showing due diligence in pursuing your case. Apparently
you had no discussions with counsel about it. You27
28
18
didn't discuss it with the Court. No alarm bells went
on, and the alarm bells should have been going off.
You had a duty to your client to have the alarm
bell goes off, and you didn't.
MR. ROBBINS: Well, one last thing I will just
say, your Honor. I think the focus on this very last
leg in the story may be a little bit misleading. You
have to understand, there was a -- the Court had stayed
this action for years.
In an order it said the parties agree to set
trial on the disclaimer matter, another matter, first,
then set trial on the 39th Avenue matter second, and
stay the remaining matters.
This was the remaining matter. It got stayed
for years until the Goldsmith matter on appeal got
decided. That was the termination date.
90 minutes after the Goldsmith decision was
decided, we came into court demanding a jury trial -- a
trial, not a jury trial, a trial on the instant matter.
90 minutes later.
The other side is upset that we sought a trial
so quickly and they moved to stop it. So this is back
in February 2016. They were able to successfully --
because of their motion, that pushes the motion date for
six more months and Judge Cheng eventually sets a date
after they lose that motion at the end of 2016. They
burn a year trying to stop this trial.
We diligently tried to get a trial date, and27
28
19
it's only in that context did a series of subsequent
continuances continue to April 17, 2017. The Court
continues it again to June 1, 2017.
We, the parties continue it again to June 26,
2017, and then all the other continuances. Every single
time we're trying to get this to trial, well, except for
the one stip where the parties agreed to.
But otherwise, the suggestion that we are not
acting diligently is simply not true. We tried to get
this thing to trial back in 2016
And it is true, there were some continuances,
there were some stays, but these are out of our hands.
And demanding vociferously to Judge Cheng, you have to
try this thing right now, you must try this thing right
now, arguably there are delicate ways to handle a judge
and we just cannot shove this case down his throat.
We have to work with his calendar. We tried to
get this to trial, it got continued multiple times. At
the very last month we believed we were protected by the
stipulation. We thought that was sufficient --
THE COURT: How long is it going to go? You
didn't file this motion to set it for trial until when?
MR. ROBBINS: Mr. Bernhard will speak to that
fact.
Mr. Bernhard.
MR. BERNHARD: If I may, your Honor. I mean, I
filed not one but two ex parte applications to get a
trial date.20
THE COURT: Well, yeah, but ex parte isn't the
same thing as filing a motion when the other side was
there. When did you file those?
MR. BERNHARD: End of March.
MR. FOSTER: April 3rd.
THE COURT: We're how many months away? I mean,
that's seven to eight months away when Judge Cheng said
go to 206 and get a trial set. Was the ex parte after
they filed their motion to dismiss?
MR. BERNHARD: No.
MR. FOSTER: Yes.
MR. BERNHARD: Well, it was --
MR. FOSTER: Three weeks.
MR. BERNHARD: We went -- as I said earlier
your Honor, Department 606 said, let's set a status
conference for this. Here are a couple of dates
talking to my office. You go out to opposing counsel
and get them to agree to one of these dates and we will
have a status conference about setting the matter for
trial.
And we said, okay. We contacted opposing
counsel, and then saying we're going to have a status
conference, we will set a trial date in this matter, and
then they filed this motion, only after we went to them.
And I have a representative email of that sort
of communications also attached to my declaration.
So no, they did not come in and file this motion
just out of the blue. They did it in response to our21
request to -- or Department 606's request to conduct a
status conference to set a trial date.
THE COURT: All right. Anything further anybody
wants to add?
MR. ROBBINS: No, your Honor.
THE COURT: Submitted?
MR. FOSTER: Yes, your Honor.
MR. ROBBINS: Submitted, your Honor.
THE COURT: All right. The tentative ruling
will be adopted. Thank you.
MR. FOSTER: Your Honor, I have a proposed order
that tracks the tentative ruling.
THE COURT: Very well. Well, is this statement
of the tentative correct?
MR. FOSTER: It was cut and pasted yesterday.
THE COURT: I just want to know, is this
statement correct? Was the petition that set this case
for trial filed after the motion to dismiss was filed?
MR. FOSTER: Your Honor, are you talking about
the motion to set the case for trial?
THE COURT: Yes.
MR. FOSTER: Yes, the motion to set this case
for trial was filed about a month after the motion to
dismiss.
THE COURT: All right.
THE CLERK: Mr. Foster, did you want to give me
the copies?
THE COURT: Counsel should approve this as to22
form.
MR. FOSTER: I have given them a copy.
MR. ROBBINS: Does your Honor want to hear our
objections, or should I meet and confer with counsel?
THE COURT: Why don't you meet and confer with
counsel.
(Discussion off the record between counsel.)
THE CLERK: Would you like the attorneys to
revise the order and submit?
THE COURT: Yes. We have another matter
scheduled at 2:30.
MR. ROBBINS: May I just make one quick
objection, your Honor, so we can avoid all this paper?
THE COURT: All right.
MR. ROBBINS: The only objection is this
language on line 10 of the second page, which refers to
a stipulation to no later than June 26, we just believe
that's factually untrue.
The stipulation says to June 26 or such
subsequent date as Judge Cheng is available. That's
what the language says.
MR. FOSTER: We could just call it the written
trial continuance stipulation.
MR. ROBBINS: Or you can say extended by
stipulation.
MR. FOSTER: I think your Honor might be right.
Maybe we work on it and we agree to the language and
submit it.27
28
23
THE COURT: Very well. Thank you.
MR. ROBBINS: We will propose a proposed --
MR. FOSTER: I will send you guys something.
THE COURT: Okay. Send it to him, and you have
got so many days to respond, and then send to it me.
MR. ROBBINS: Thank you, your Honor.
MR. FOSTER: Thank you, your Honor.
(Whereupon, proceedings adjourned at 2:27 p.m.)
-o00-27
28
24
STATE OF CALIFORNIA )
) ss.
SAN FRANCISCO COUNTY )
I, WENDY L. GRAVES, Certified Shorthand
Reporter, do hereby certify that as such I took down in
stenotype all of the proceedings in the within-entitled
matter, KWOK, Petitioner, versus KWONG, Respondent,
Superior Court Action Number PES-10-293505, heard before
the Honorable JOHN K. STEWART, JUDGE, and that I
thereafter transcribed my stenotype notes into
typewriting through computer-assisted transcription, and
that the foregoing transcript constitutes a full, true,
and correct transcription of the proceedings held before
me at the aforementioned time.
IN WITNESS WHEREOF, I have hereunto subscribed
my name this date, May 16, 2018.
Wen tbat fia errr
WENDY L. GRAVES, CSR, RPR
Certified Shorthand Reporter 6138
Preview
APP-010 |ATTORNEY OR PARTY WITHOUT ATTORNEY STATE BAR NO.: 262,120 INaMe: Phil Foster FIRM NAME: TOUR-SARKISSIAN LAW OFFICES, LLP STREET ADDRESS: 211 Gough Street, 3rd Floor city: San Francisco state: CA zip cope: 94102 [TELEPHONE NO: (415) 626-7744 Fax NO.: (415) 626-8189 E-MAIL ADDRESS: phil@tslo.com ATTORNEY FOR (name): Respondent JEANNE KWONG SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN FRANCISCO stReeTappress: 400 McAllister Street MAILING ADDRESS: 400 McAllister Street city AND zip cove: San Francisco, CA 94102 BRANCH NAME: Civic Center Courthouse PLAINTIFF/PETITIONER: JENNIFER SHUK-HAN KWOK IDEFENDANT/RESPONDENT: JEANNE KWONG, et al. ELECTRONICALLY FILED Superior Court of California, County of San Francisco 08/21/2018 Clerk of the Court BY:MELISSA DONG Deputy Clerk RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL (UNLIMITED CIVIL CASE) ‘SUPERIOR COURT CASE NUMBER: PES-10-293505 Re: Appeal filed on (date): July 19, 2018 ‘COURT OF APPEAL CASE NUMBER (if known): Notice: Please read Judicial Council form APP-001 before completing this form. This form must be filed in the superior court, not in the Court of Appeal. 1. RECORD OF THE DOCUMENTS FILED IN THE SUPERIOR COURT The appellant has elected to use a clerk's transcript under rule 8.122. a. [5¢] Additional documents. (if you want any documents from the superior court proceedings in addition to the documents designated by the appellant to be included in the clerk's transcript, you must identify those documents here.) In addition to the documents designated by the appellant, | request that the clerk include in the transcript the following documents from the superior court proceedings. (You must identify each document you want included by its title and provide the date it was filed or, if that is not available, the date the document was signed.) [ Document Title and Description l[ Date of Filing _| (1) SEE ATTACHMENT 1 (3) [Gq See additional pages. b. [__] Additional exhibits. (/f you want any exhibits from the superior court proceedings in addition to those designated by the appellant to be included in the clerk's transcript, you must identify these exhibits here.) In addition to the exhibits designated by the appellant, | request that the clerk include in the transcript the following exhibits that were admitted in evidence, refused, or lodged in the superior court. (For each exhibit, give the exhibit number, such as Plaintiff's #1 or Defendant's A, and a brief description of the exhibit. Indicate whether or not the court admitted the exhibit into evidence.) [Exhibit Number _][ | [Admitted (Yes/No)] (1) (2) (3) [] See additional pages. Page 1 of 3 om Anprover! for Option Use RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL Col Fades of Court tiles BPO. Judicial Council of California APP-010 [Rev. January 1, 2017] (Unlimited Civil Case) 8.121-8.124, 8.128, 8.180, 6.134, 6.197 wwwcourts.ca.govAPP-010 CASE NAME: Kwok v. Kwong, et al. SUPERIOR COURT CASE NUMBER: PES-10-293505 1c. Copy of clerk's transcript. | request a copy of the clerk's transcript. (check (1) or (2).) py (1) [3] | will pay the superior court clerk for this transcript when I receive the clerk's estimate of the costs of this transcript. | understand that if | do not pay for this transcript, | will not receive a copy. (2) [__] I request that the clerk's transcript be provided to me at no cost because | cannot afford to pay this cost. | have submitted the following document with this notice designating the record (check (a) or (b)): (a) [-7] An order granting a waiver of court fees and costs under rule 3.50 et seq.; or (b) [J An application for a waiver of court fees and costs under rule 3.50 et seq. (Use Request to Waive Court Fees (form FW-001) to prepare and file this application.) 2. RECORD OF ORAL PROCEEDINGS IN THE SUPERIOR COURT The appellant has elected to use a reporter's transcript under rule 8.130. a. [X_] Designation of additional proceedings. (If you want any oral proceedings in addition to the proceedings designated by the appellant to be included in the reporter's transcript, you must identify those proceedings here.) (1) In addition to the proceedings designated by the appellant, | request that the following proceedings in the superior court be included in the reporter's transcript. (You must identify each proceeding you want included by its date, the department in which it took place, a description of the proceedings—for example, the examination of jurors, motions before trial, the taking of testimony, or the giving of jury instructions—the name of the court reporter who recorded the proceedings, and whether a certified transcript of the designated proceeding was previously prepared.) [Date [Department |Full/Partial Day] Description Reporter's Name _| Prev. prepared? | (a) 05-09-2018 204 Partial Hearing on Motion To Dismiss for Wendy Graves [x] Yes [] No Failure To Bring Case To Trial CSR 6138 (b) 0 Yes [J No (©) (J Yes [] No (d) [] Yes [J No (e) (1 Yes [] No @ Yes [] No (g) Yes [] No [J See additional pages. APP-010 [Rev. January 1, 2017] RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL. Page 2 of 3 (Unlimited Civil Case)APP-010 CASE NAME: Kwok v. Kwong, et al. SUPERIOR COURT CASE NUMBER: PES-10-293505 2. a. (2) Deposit for additional proceedings Ihave (check a, b, c, or d): (a) [-_] Deposited the approximate cost of transcribing the designated proceedings with this notice as provided in rule 8.130(b)(1). (b) [-_] Attached a copy of a Transcript Reimbursement Fund application filed under rule 8.130(b)(3)(B). (c) [__] Attached the reporter's written waiver of a deposit for (check either (i) or (ii)): (i) [_] Allofthe designated proceedings. (i) [££] Part of the designated proceedings. (d) Attached a certified transcript under rule 8.130(b)(3)(C). b. Copy of reporter's transcript. (1) [-_] | request a copy of the reporter's transcript. (2) [_] | request that the reporters provide (check (a), (b), or (c)) : (a) [-] My copy of the reporter's transcript in paper format. (b) [-] My copy of the reporter's transcript in computer-readable format. (c) [[] My copy of the reporter's transcript in paper format and a second copy of the reporter's transcript in computer- readable format. (Code Civ. Proc., § 271; Cal. Rules of Court, rule 8.130(A(4).) Date: August 21, 2018 — PHIL FOSTER » (TYPE OR PRINT NAME) (SIGNATURE OF APPELLANT OR ATTORNEY) APP-010 (Rev. January 1, 2017] RESPONDENT'S NOTICE DESIGNATING RECORD ON APPEAL Page 3 of 3 (Unlimited Civil Case)MC-025 SHORT TITLE: | KWOK v. KWONG, et al. ‘CASE NUMBER: PES-10-293505 ATTACHMENT (Number): 1 (This Attachment may be used with any Judicial Council form.) DOCUMENT TITLE AND DESCRIPTION DATE OF FILING Respondent Jeanne Kwong’s Notice of Motion and Motion To Dismiss March 19, 2018 For Failure To Bring Case To Trial Respondent Jeanne Kwong’s Memorandum of Points And Authorities In March 19, 2018 Support of Motion To Dismiss For Failure To Bring Case To Trial Declaration of Counsel Phil Foster in Support of Motion To Dismiss For March 19, 2018 Failure To Bring Case To Trial Request For Judicial Notice in Support of Motion To Dismiss For Failure March 19, 2018 To Bring Case To Trial Proof of Service filed by Respondent Jeanne Kwong March 19, 2018 Respondent Gary Wong’s Joinder In Respondent Jeanne Kwong’s Motion March 27, 2018 To Dismiss For Failure To Bring Case To Trial Proof of Service filed by Respondent Gary Wong March 27, 2018 Petitioner Jennifer Shuk-Han Kwok’s Memorandum of Points And Authorities April 26, 2018 In Opposition To Respondent Jeanne Kwong’s Motion To Dismiss For Failure To Bring Case To Trial Request For Judicial Notice In Support Of Opposition To Respondent Jeanne April 26, 2018 Kwong’s Motion To Dismiss For Failure To Bring Case To Trial Declaration of Daniel T. Bernhard In Support Of Petitioner’s Opposition To April 26, 2018 Respondents’ Motion To Dismiss Petitioner Jennifer Shuk-Han Kwok’s Notice Of Association Of Counsel May 2, 2018 Respondent Jeanne Kwong’s Reply Brief In Support Of Motion To Dismiss May 2, 2018 For Failure To Bring To Case To Trial Reply Declaration of Counsel Phil Foster In Support of Motion To Dismiss May 2, 2018 For Failure To Bring Case To Trial Respondent Jeanne Kwong’s Supplemental Request For Judicial Notice In May 2, 2018 Support of Motion To Dismiss For Failure To Bring Case To Trial Proof of Service filed by Respondent Jeanne Kwong May 2, 2018 (if the item that this Attachment concems is made under penaity of perjury, all statements in this Page 1 of 2 Attachment are made under penalty of perjury.) (Add pages as required) Form Approved for Optional Use ATTACHMENT ‘win courtinto.c0.gov Judicial Council of California MC-025 [Rev. July 1, 2009} to Judicial Council FormMC-025 CASE NUMBER: SHORT TITLE: | KWOK v. KWONG, et al. PES-10-293505 ATTACHMENT (Number): 1 (This Attachment may be used with any Judicial Council form.) ** CONTINUED FROM PRIOR PAGE **** DOCUMENT TITLE AND DESCRIPTION DATE OF FILING Respondent Gary Wong’s Joinder In Respondent Jeanne Kwong’s Reply May 2, 2018 In Support Of Motion To Dismiss For Failure To Bring To Case To Trial Proof of Service filed by Respondent Gary Wong May 2, 2018 Petitioner Jennifer Shuk-Han Kwok’s Sur-Reply In Opposition To Motion To May 4, 2018 Dismiss For Failure To Bring Case To Trial Order Granting Motion To Dismiss For Failure To Bring Case To Trial May 22, 2018 Notice Of Entry Of Judgment Or Order filed by Respondent Jeanne Kwong May 23, 2018 (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Page 2 of 2 Attachment are made under penalty of perjury.) (Add pages as required) Form Approved for Optional Use ATTACHMENT www.courtinfo.ca.gov- “Judicial Council of California ee MC-025 [Rev. July 1, 2009] to Judicial Council FormmOoR w 27 28 IN THE SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO HONORABLE JOHN K. STEWART, JUDGE, PRESIDING DEPARTMENT 204 JENNIFER SHUK-HAN KWOK, Petitioner, vs. No. PES-10-293505 JEANNE KWONG, individually and as a former trustee of the STAN KWONG Irrevocable Trust II, Respondent. AND RELATED CROSS PETITIONS. REPORTER'S TRANSCRIPT OF PROCEEDINGS WEDNESDAY, MAY 9, 2018, 1:57 P.M. SAN FRANCISCO, CALIFORNIA APPEARANCES For the Petitioner FREELAND COOPER & FOREMAN LLP Jennifer Shuk-Han Kwok: BY: DANIEL T. BERNHARD, ESQ. 150 Spear Street, Suite 1800 San Francisco, CA 94105 WOOD ROBBINS, LLP BY: B. DOUGLAS ROBBINS, ESQ. One Post Street, Suite 800 San Francisco, CA 94104 For the Respondent TOUR-SARKISSIAN LAW OFFICES Jeanne Kwong: BY: PHIL FOSTER, ESQ. 211 Gough Street San Francisco, CA 94102APPEARANCES (continued): For the Respondent Gary Wong: Reported By: MARKUN ZUSMAN FRENIERE COMPTON LLP BY: EDWARD S. ZUSMAN, ESQ. ELLIOT M. RECTOR, ESQ. 465 California Street, # 401 San Francisco, CA 94104 WENDY L. GRAVES, CSR NO. 6138PROCEEDINGS THE CLERK: May I call the matter? THE COURT: Yes, please. THE CLERK: This is case number PES-10~293505 In Re: Stan Kwong Irrevocable Trust. Counsel, please state your appearances. MR. BERNHARD: Daniel Bernhard on behalf of Jennifer Kwok. MR. ROBBINS: Good afternoon, your Honor. I'm Douglas Robbins on behalf of Jennifer Kwok. MR. ZUSMAN: Good afternoon, your Honor. Edward Zusman and Elliott Rector on behalf of Respondent Gary Wong. MR. FOSTER: Phil Foster for Respondent, Jeanne Kwong. THE COURT: All right. Good afternoon, everyone. So you received the tentative and you asked to be here to contest it, so please proceed. MR. ROBBINS: Since we contest the tentative I will start, your Honor. The chief argument we want to make this afternoon is that there is a stipulation in this case that says fairly clearly that the parties agree that the trial in this matter will be continued to June 26, 2017, or to such other continued trial date, subject to Judge Cheng's calendar and availability. To us that means that it's a stipulation with regard to the five-year statute. It contemplates thatJudge Cheng will hear it. It contemplates that he will hear it when his calendar is available. And during that period of time when Judge Cheng was considering hearing the matter it got continued multiple times, many times because of the court's calendaring issues. The very last step was that Judge Cheng couldn't hear it on June 26, when it was set by the stip, but instead he said he was available -- not available on June 26, so he proposed September 25 for a trial date. That was the fourth continuance, by the way, in this matter. But later in the month, in August, Judge Cheng let us know again, unfortunately, he wasn't available for that date either, and he had to continue it, yet again the fifth continuance. He didn't specify when, except that he said he would be available at some point in 2018. So it was our understanding, based on the stip, based on Judge Cheng's availability, that we would be having the matter tried at some point by him in 2018. And for those reasons we don't think the five-year statute applies, because the statute contemplates the parties will and can stipulate to continuances. That, in fact, is Section 583.310 of the California Code of Civil Procedure. And that's what the stipulation does. THE COURT: Counsel?27 28 MR. FOSTER: Your Honor, Phil Foster for Respondent Jeanne Kwong. The stipulation to continue the trial date cannot be read as an open-ended extension of the five-year statute. And in the reply papers I believe Gary Wong's counsel cites the Chapin v. Superior Court case in which the Court -- the Court of Appeal has a stipulation very similar to the stipulation here, to continue the trial for the convenience of the court, and the plaintiff wants to construe that trial continuance stipulation as an open-ended extension of the five-year statute. And the Court of Appeals said absolutely no in the Chapin case. What must be read into the stipulation is that the five-year statute is only extended for a reasonable period of time, and they cite Civil Code 1657. So this indefinite extension argument is contrary to the law, and as the Chapin court points out, it would undermine and be contrary to the very five-year statute. The terms of the trial continuance stipulation that the parties agreed to was further continuances for Judge Cheng's availability. But on August 25th, 2017, when Judge Cheng tells petitioner to return to 206 and get a new trial assignment, there is no further agreement about trial continuances. There is no agreement among the parties for a trial continuance or petitioner to delay or take so long27 28 to return to 206. There is no agreement in place for a trial continuance based on the calendar or availability of other judges. That stipulation terminated by its own terms on August 25th, 2017, and it can't be read as an agreement for any continuance past that date. Now, as of that date -- well, there has been -- counsel raised in his arguments that there may be a belief that Judge Cheng was sending the parties back to 206 just so we could be returned to Judge Cheng at some point in the future, and that was not at all envisioned. I know because I was there. And Mr. Bernhard's impression of it is -- petitioner's counsel, is the same as mine. In April of this year, Mr. Bernhard filed a declaration in which he described that August 25th event, when Judge Cheng said seek a new trial assignment. And in Mr. Bernhard's own words he says the parties were advised to consider finding a different trial court. And we attached that to a Request for Judicial Notice. This is Mr. Bernhard's April 3rd, 2018 declaration, which is contrary to the argument that's been made today. So there is no way that that trial date stipulation can be read as an open-ended extension of the five-year statute. The five-year statute expired a month after Judge Cheng said go back to 206 and get a new trial judge assignment. When petitioner made no effort within that monthand made no effort within the next seven to eight months even after the five-year statute ran, petitioner put this court in the position where now this case must be dismissed, and it's mandatory for the court to do so, THE COURT: All right. Counsel, any rejoinder? MR. ROBBINS: A few arguments, your Honor. First of all, we agree. This is not supposed to be an open ended or, quote unquote, indefinite extension. As counsel said himself, the extension of time is for a reasonable period of time. The language in the stipulation says when Judge Cheng is available. That's reasonable. Judge Cheng said he wasn't available in 2017. He said he would be available in 2018. It's not unreasonable for us to rely on the stipulation that says we will try the case when Judge Cheng is available. It's not unreasonable that Judge Cheng extended the date by a certain number of months. It's not years, not indefinitely. The second argument is that the Wong arguments that counsel is arguing are in a reply that we're unable to respond to because those arguments should have been made in the moving papers. Had those arguments been made in the moving papers, we would have been able to respond with our own citation and argument. But because Wong did not make a moving argument and simply sandbagged us in reply, we're unable to make that argument. So for that reason we ask that the Wong27 28 arguments be struck, or the alternative that this motion be continued to give us an opportunity to brief it at minimum. But on its merits, the third argument made by counsel this afternoon is that the stipulation terminated, quote, by it's own terms in June 2017. MR. FOSTER: August. MR. ROBBINS: Sorry. By August, 2017. But by its own terms it doesn't terminate by any particular time. It terminates after such continued trial date subject to Judge Cheng's calendar and availability. That's not a hard date in time for when this stipulation terminates. It terminates after Judge Cheng is available and hears the matter. We relied on those terms, terms they agreed to, we agreed to, we believed and they believed was operative. Finally, argument is made this afternoon that somehow that this stipulation expired in September, after Judge Cheng sent the parties back to another department. But again, that's not what the stipulation says either. None of the parties amended the stipulation either orally or in writing to say, oh, by the way now that Judge Cheng has asked us to go back to the department and reset this for another trial date that that somehow terminates the stipulation. No one agreed to that. The parties actually held to the terms they27 28 agreed to. We relied on those terms. We had no reason to believe the other side magically now thinks they are terminated by any terms. And the final thing to keep in mind, your Honor, is that this is not just a stipulation with regard to time. This is a stipulation with regard to Judge Cheng hearing this matter. All the parties agreed that would happen. He was the single assignment judge after Judge Goldsmith retired and after Judge McBride retired. We all agreed he would hear the matter. He had heard the previous matters. He had education in this action. And so the parties were relying upon and had agreed to that Judge Cheng was the right judge to hear this matter, and that a new judge shouldn't have to come in and have to reeducate himself or herself. So for all those reasons we believe the stipulation was operative. It's a real stipulation. The parties should be held to its terms. We had no notice or understanding that somehow the parties would need to have it voided. There is no subsequent stipulation. There is no order of the court to that effect. For those reasons, we think that we should have an opportunity to try this matter on its merits in front of Judge Cheng and have the case decided that way, not on a technicality. THE COURT: Anything further?10 MR. ZUSMAN: I will speak briefly on the issue of the reply, your Honor. On behalf of Gary Wong, we joined the moving papers, we joined the reply, we filed a supplemental reply that simply relates to matters that were directly linked to arguments, principally the estoppel argument that were made in the opposition that arose from the estoppel based on conversations or communications between counsel for the other parties in the case to which we were not a party. And that was a unique argument arising from the opposition that we raised in our reply in addition to relevant case law. The petitioner filed a sur-reply and they also had the opportunity to argue this morning. There is no prejudice whatsoever. MR. FOSTER: And, your Honor, I represent Jeanne Kwong, so certainly I am allowed to make that argument, as I already have. The argument that I'm hearing from petitioner today is contrary to what petitioner's other counsel, Mr. Bernhard, said happened ON August 25th, which is the parties were advised -- THE COURT: Well, the record will speak for itself there. Whatever counsel's interpretation is, someone did supply the transcript. The transcript is what it is. I can read the transcript. MR. FOSTER: Yes. THE COURT: Anyway, it seems no to me that there11 is always this question of reasonableness, which applies to any extension, and there is also the duty of counsel to exercise due diligence. Every single Court of Appeals talks about that requirement, exercise due diligence. In this case, it seems to me that probably -- well, let me go back. There was a stipulation, and you know the sequence better than I do. But there was a trial date of April 25th or something like that. That was continued to June 25th, and then at that point didn't Judge Cheng change it to September 25th? MR. FOSTER: At that point it was indefinite. The parties volunteered September 25th. THE COURT: That was the suggested trial date. MR. FOSTER: And Judge Cheng said I'm going to hold that as a protective date. I will let you know. When he let us know on August 25th, he said I'm not going to be able to do your trial. You need to return to 206. THE COURT: So it seems to me that the cutoff date for the five-year statute, the one that the parties could reasonably rely upon and expect would have been September 25th, because you both agreed the trial could be set there and that was prior to the time the stipulation ran. But in August, Judge Cheng said he can't have a trial in September. You are going to have to go back to12 206. And he didn't set it in his own calendar. He didn't say, okay, we're going to start trial in October. He said go back to Department 206. Well, that's the master calendar. At that point, due diligence had to be exercised. You could have told Judge Cheng then, well, we have a concern. There is a five-year statute issue here. We need to get a trial date right now. Or you go to Department 206 a week later and ask for a trial-setting date. We need a trial date before September 25th, because we have a five-year statute issue. And there was apparently no conversation with defense counsel about selecting a date. And just to assume that it was just going to run indefinitely because there was no date at that point beyond September 25th that the parties had discussed or agreed upon, there was no date given by either Judge Cheng or by the master calendar department, Department 206, it was just out there in Never, Neverland, and nobody did anything about it. MR. BERNHARD: May I respond, your Honor? THE COURT: Let me finish my brief thought here. I'm looking at a case, for example, called Hoffman versus State of California that was cited by one of you. 171 Cal.App3rd 1100. In that case the parties had a trial date on July 25th. The five-year period ran on August 8th, and the court notified the parties that27 28 13 there was no courtroom available on July 25th. But the parties didn't show up in court on the 25th. They just said, well, we understand that there is no trial date available. And the court took it off calendar. And then there is an effort to put it back on the calendar, there was a motion heard regarding experts in September, and then the Court assigned the case to trial January 9th, 1984. The defendants filed a motion to dismiss in November, prior of course to January, and the motion was granted. The Court of Appeals just said the burden is on plaintiff to first establish in the trial court by clear and convincing proof the existence of either impossibility, impracticality or utility of bringing a matter to trial within five years. But they went on to talk about when alarms should have gone on in the plaintiff's mind. Be that as it may, when the bailiff called inguiring as to why neither appeared for the trial call on July 25th a clear alarm was sounded and should have been responded to by checking directly with the Court as to the disposition of the case that case. Even this did not arouse an immediate response from counsel. So I mean, there is a due diligence, and that just wasn't exercised here, in my view. Clearly, alarms should have gone off when this case that was -- the parties had agreed was going to be set for September14 25th wasn't going to go on that date. Judge Cheng said, Well, you better to go Department 206. Well, at that point you should have gone to Department 206 and said, we need a trial date. We have a five-year statute, so it should be set before September 25th, unless counsel agreed otherwise, and that just didn't happen. The motion here to set the case for trial really wasn't filed until after they filed their five-year statute to dismiss. I just see nothing happened from the time Judge Cheng said go to 206 until this motion was filed. MR. ROBBINS: May I respond? THE COURT: Yeah. MR. ROBBINS: My understanding is that we did go to the department to get new trial dates, number 1. THE COURT: Is there anything in the record or anything? I haven't seen anything to establish who said what to whom or whether there was anything on the record. MR. ROBBINS: Mr. Bernhard's declaration discusses when he went to the department. When did you go to the department? MR. BERNHARD: If I may, your Honor. I have two declarations in this matter. One in opposition to this motion, and another in support of setting a trial date. And I think I discussed my office's activities15 in talking to Department 206 and to Department 204 and also Department 606, where Judge Cheng was in those. Basically, we approached this department in February. This department, I think, contacted 606. 606 then contacted us and said we should set a status conference. THE COURT: This is in February? MR. BERNHARD: I believe this is in February. THE COURT: This is six months after Judge Cheng said go to 206? MR. ROBBINS: The reason why, your Honor, if I may. We believe we were protected by the stipulation. THE COURT: Did you have any discussions with plaintiff's counsel about that? Because, I mean -- the other side, because there was that stipulation signed in November with regard to other cases that expressly excluded this particular case from any further protection from the five-year statute. MR. ROBBINS: Except that this stipulation, the one that we cite to, specifically says that it will not expire on any -- in June 2017, but shall be continued -- so, your Honor, if I may. The Hoffman argument does discuss impossibility and practicality of utility, but there is no stipulation in that case. We were relying on the stipulation. Two, when Judge Cheng says, go to Department 206, we did not understand that to mean either I, Judge Cheng, am overruling your stipulation, nor did parties27 28 16 come to us and say, now all bets are off, we are rescinding the stipulation and the language about shall be heard by Judge Cheng according to his availability is off the table. None of that is true. In fact, they don't say the stipulation is dead or rescinded or anything. They wait quite a bit of time, until the middle of this year -- I'm sorry -- the middle of, yeah, this year, to make this argument, leading us to believe to rely upon the old stipulation being in effect. We have no reason to believe from the other side that the stipulation isn't in effect and is not protecting us. To the contrary, they lead us to believe that it is in effect and is protecting us. That's why we signed it. The final argument is that, we will say again, the language of the stip is not indefinite, it does not go on forever, nor on the other side does it set a hard date for the hearing. It refers to the June 2016 dates, and it says after that in the clause, or any other date as Judge Cheng's availability may allow. Now, had that language not exist, then I think they are right and they win this motion. But the only way for this court to rule against us is to believe -- is to strike that language suggesting that there is a hard date in that stip, and that the other language allowing for an additional trial date after that point is somehow superfluous or meaningless or not part of the27 28 17 agreement. It is part of the agreement, we relied upon it, and we had no reason to believe the other side was vescinding that part of the agreement until this motion popped up on your calendar. For those reasons we think the matter should be heard on its merits, not on this technicality and sort of this trick about, well, what the stip meant or what it didn't mean. Now we said one thing and now we're taking back those terms later. THE COURT: The stip was signed in April 2017? MR. ROBBINS: It was April or May of 2017, your Honor. THE COURT: It continued until when? MR. ROBBINS: It said that to June 26, 2017 or to such other continued trial date subject to Judge Cheng's calendar and availability. THE COURT: That takes you to -- and then you had discussed September, and I think you had reason to rely upon extending it past that June date to September. But after that, when Judge Cheng said, I can't hear it, you are going to have to go to 206 and maybe I will be available in 2018 sometime, but I can't tell you when, that's when the alarm bells go off, and that's what the cases talk about. The whole essence of this five-year statute is showing due diligence in pursuing your case. Apparently you had no discussions with counsel about it. You27 28 18 didn't discuss it with the Court. No alarm bells went on, and the alarm bells should have been going off. You had a duty to your client to have the alarm bell goes off, and you didn't. MR. ROBBINS: Well, one last thing I will just say, your Honor. I think the focus on this very last leg in the story may be a little bit misleading. You have to understand, there was a -- the Court had stayed this action for years. In an order it said the parties agree to set trial on the disclaimer matter, another matter, first, then set trial on the 39th Avenue matter second, and stay the remaining matters. This was the remaining matter. It got stayed for years until the Goldsmith matter on appeal got decided. That was the termination date. 90 minutes after the Goldsmith decision was decided, we came into court demanding a jury trial -- a trial, not a jury trial, a trial on the instant matter. 90 minutes later. The other side is upset that we sought a trial so quickly and they moved to stop it. So this is back in February 2016. They were able to successfully -- because of their motion, that pushes the motion date for six more months and Judge Cheng eventually sets a date after they lose that motion at the end of 2016. They burn a year trying to stop this trial. We diligently tried to get a trial date, and27 28 19 it's only in that context did a series of subsequent continuances continue to April 17, 2017. The Court continues it again to June 1, 2017. We, the parties continue it again to June 26, 2017, and then all the other continuances. Every single time we're trying to get this to trial, well, except for the one stip where the parties agreed to. But otherwise, the suggestion that we are not acting diligently is simply not true. We tried to get this thing to trial back in 2016 And it is true, there were some continuances, there were some stays, but these are out of our hands. And demanding vociferously to Judge Cheng, you have to try this thing right now, you must try this thing right now, arguably there are delicate ways to handle a judge and we just cannot shove this case down his throat. We have to work with his calendar. We tried to get this to trial, it got continued multiple times. At the very last month we believed we were protected by the stipulation. We thought that was sufficient -- THE COURT: How long is it going to go? You didn't file this motion to set it for trial until when? MR. ROBBINS: Mr. Bernhard will speak to that fact. Mr. Bernhard. MR. BERNHARD: If I may, your Honor. I mean, I filed not one but two ex parte applications to get a trial date.20 THE COURT: Well, yeah, but ex parte isn't the same thing as filing a motion when the other side was there. When did you file those? MR. BERNHARD: End of March. MR. FOSTER: April 3rd. THE COURT: We're how many months away? I mean, that's seven to eight months away when Judge Cheng said go to 206 and get a trial set. Was the ex parte after they filed their motion to dismiss? MR. BERNHARD: No. MR. FOSTER: Yes. MR. BERNHARD: Well, it was -- MR. FOSTER: Three weeks. MR. BERNHARD: We went -- as I said earlier your Honor, Department 606 said, let's set a status conference for this. Here are a couple of dates talking to my office. You go out to opposing counsel and get them to agree to one of these dates and we will have a status conference about setting the matter for trial. And we said, okay. We contacted opposing counsel, and then saying we're going to have a status conference, we will set a trial date in this matter, and then they filed this motion, only after we went to them. And I have a representative email of that sort of communications also attached to my declaration. So no, they did not come in and file this motion just out of the blue. They did it in response to our21 request to -- or Department 606's request to conduct a status conference to set a trial date. THE COURT: All right. Anything further anybody wants to add? MR. ROBBINS: No, your Honor. THE COURT: Submitted? MR. FOSTER: Yes, your Honor. MR. ROBBINS: Submitted, your Honor. THE COURT: All right. The tentative ruling will be adopted. Thank you. MR. FOSTER: Your Honor, I have a proposed order that tracks the tentative ruling. THE COURT: Very well. Well, is this statement of the tentative correct? MR. FOSTER: It was cut and pasted yesterday. THE COURT: I just want to know, is this statement correct? Was the petition that set this case for trial filed after the motion to dismiss was filed? MR. FOSTER: Your Honor, are you talking about the motion to set the case for trial? THE COURT: Yes. MR. FOSTER: Yes, the motion to set this case for trial was filed about a month after the motion to dismiss. THE COURT: All right. THE CLERK: Mr. Foster, did you want to give me the copies? THE COURT: Counsel should approve this as to22 form. MR. FOSTER: I have given them a copy. MR. ROBBINS: Does your Honor want to hear our objections, or should I meet and confer with counsel? THE COURT: Why don't you meet and confer with counsel. (Discussion off the record between counsel.) THE CLERK: Would you like the attorneys to revise the order and submit? THE COURT: Yes. We have another matter scheduled at 2:30. MR. ROBBINS: May I just make one quick objection, your Honor, so we can avoid all this paper? THE COURT: All right. MR. ROBBINS: The only objection is this language on line 10 of the second page, which refers to a stipulation to no later than June 26, we just believe that's factually untrue. The stipulation says to June 26 or such subsequent date as Judge Cheng is available. That's what the language says. MR. FOSTER: We could just call it the written trial continuance stipulation. MR. ROBBINS: Or you can say extended by stipulation. MR. FOSTER: I think your Honor might be right. Maybe we work on it and we agree to the language and submit it.27 28 23 THE COURT: Very well. Thank you. MR. ROBBINS: We will propose a proposed -- MR. FOSTER: I will send you guys something. THE COURT: Okay. Send it to him, and you have got so many days to respond, and then send to it me. MR. ROBBINS: Thank you, your Honor. MR. FOSTER: Thank you, your Honor. (Whereupon, proceedings adjourned at 2:27 p.m.) -o00-27 28 24 STATE OF CALIFORNIA ) ) ss. SAN FRANCISCO COUNTY ) I, WENDY L. GRAVES, Certified Shorthand Reporter, do hereby certify that as such I took down in stenotype all of the proceedings in the within-entitled matter, KWOK, Petitioner, versus KWONG, Respondent, Superior Court Action Number PES-10-293505, heard before the Honorable JOHN K. STEWART, JUDGE, and that I thereafter transcribed my stenotype notes into typewriting through computer-assisted transcription, and that the foregoing transcript constitutes a full, true, and correct transcription of the proceedings held before me at the aforementioned time. IN WITNESS WHEREOF, I have hereunto subscribed my name this date, May 16, 2018. Wen tbat fia errr WENDY L. GRAVES, CSR, RPR Certified Shorthand Reporter 6138